[Title 49 CFR ]
[Code of Federal Regulations (annual edition) - October 1, 2023 Edition]
[From the U.S. Government Publishing Office]



[[Page i]]

          

          Title 49

Transportation


________________________

Parts 1 to 99

                         Revised as of October 1, 2023

          Containing a codification of documents of general 
          applicability and future effect

          As of October 1, 2023
                    Published by the Office of the Federal Register 
                    National Archives and Records Administration as a 
                    Special Edition of the Federal Register

[[Page ii]]

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                            Table of Contents



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

  Title 49:
          SUBTITLE A--Office of the Secretary of 
          Transportation                                             3
  Finding Aids:
      Table of CFR Titles and Chapters........................     747
      Alphabetical List of Agencies Appearing in the CFR......     767
      List of CFR Sections Affected...........................     777

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

                     Cite this Code: CFR
                     To cite the regulations in 
                       this volume use title, 
                       part and section number. 
                       Thus, 49 CFR 1.1 refers to 
                       title 49, part 1, section 
                       1.

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

[[Page v]]



                               EXPLANATION

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

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

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

LEGAL STATUS

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

HOW TO USE THE CODE OF FEDERAL REGULATIONS

    The Code of Federal Regulations is kept up to date by the individual 
issues of the Federal Register. These two publications must be used 
together to determine the latest version of any given rule.
    To determine whether a Code volume has been amended since its 
revision date (in this case, October 1, 2023), consult the ``List of CFR 
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative 
List of Parts Affected,'' which appears in the Reader Aids section of 
the daily Federal Register. These two lists will identify the Federal 
Register page number of the latest amendment of any given rule.

EFFECTIVE AND EXPIRATION DATES

    Each volume of the Code contains amendments published in the Federal 
Register since the last revision of that volume of the Code. Source 
citations for the regulations are referred to by volume number and page 
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Code a note has been inserted to reflect the future effective date. In 
those instances where a regulation published in the Federal Register 
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inserted following the text.

OMB CONTROL NUMBERS

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

[[Page vi]]

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

PAST PROVISIONS OF THE CODE

    Provisions of the Code that are no longer in force and effect as of 
the revision date stated on the cover of each volume are not carried. 
Code users may find the text of provisions in effect on any given date 
in the past by using the appropriate List of CFR Sections Affected 
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Affected'' is published at the end of each CFR volume. For changes to 
the Code prior to the LSA listings at the end of the volume, consult 
previous annual editions of the LSA. For changes to the Code prior to 
2001, consult the List of CFR Sections Affected compilations, published 
for 1949-1963, 1964-1972, 1973-1985, and 1986-2000.

``[RESERVED]'' TERMINOLOGY

    The term ``[Reserved]'' is used as a place holder within the Code of 
Federal Regulations. An agency may add regulatory information at a 
``[Reserved]'' location at any time. Occasionally ``[Reserved]'' is used 
editorially to indicate that a portion of the CFR was left vacant and 
not dropped in error.

INCORPORATION BY REFERENCE

    What is incorporation by reference? Incorporation by reference was 
established by statute and allows Federal agencies to meet the 
requirement to publish regulations in the Federal Register by referring 
to materials already published elsewhere. For an incorporation to be 
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if it were published in full in the Federal Register (5 U.S.C. 552(a)). 
This material, like any other properly issued regulation, has the force 
of law.
    What is a proper incorporation by reference? The Director of the 
Federal Register will approve an incorporation by reference only when 
the requirements of 1 CFR part 51 are met. Some of the elements on which 
approval is based are:
    (a) The incorporation will substantially reduce the volume of 
material published in the Federal Register.
    (b) The matter incorporated is in fact available to the extent 
necessary to afford fairness and uniformity in the administrative 
process.
    (c) The incorporating document is drafted and submitted for 
publication in accordance with 1 CFR part 51.
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    An index to the text of ``Title 3--The President'' is carried within 
that volume.

[[Page vii]]

    The Federal Register Index is issued monthly in cumulative form. 
This index is based on a consolidation of the ``Contents'' entries in 
the daily Federal Register.
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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
    October 1, 2023







[[Page ix]]



                               THIS TITLE

    Title 49--Transportation is composed of nine volumes. The parts in 
these volumes are arranged in the following order: Parts 1-99, parts 
100-177, parts 178-199, parts 200-299, parts 300-399, parts 400-571, 
parts 572-999, parts 1000-1199, and part 1200 to end. The first volume 
(parts 1-99) contains current regulations issued under subtitle A--
Office of the Secretary of Transportation; the second volume (parts 100-
177) and the third volume (parts 178-199) contain the current 
regulations issued under chapter I--Pipeline and Hazardous Materials 
Safety Administration (DOT); the fourth volume (parts 200-299) contains 
the current regulations issued under chapter II--Federal Railroad 
Administration (DOT); the fifth volume (parts 300-399) contains the 
current regulations issued under chapter III--Federal Motor Carrier 
Safety Administration (DOT); the sixth volume (parts 400-571) contains 
the current regulations issued under chapter IV--Coast Guard (DHS), and 
some of chapter V--National Highway Traffic Safety Administration (DOT); 
the seventh volume (parts 572-999) contains the rest of the regulations 
issued under chapter V--National Highway Traffic Safety Administration 
(DOT), and the current regulations issued under chapter VI--Federal 
Transit Administration (DOT), chapter VII--National Railroad Passenger 
Corporation (AMTRAK), and chapter VIII--National Transportation Safety 
Board; the eighth volume (parts 1000-1199) contains some of the current 
regulations issued under chapter X--Surface Transportation Board; and 
the ninth volume (part 1200 to end) contains the rest of the current 
regulations issued under chapter X--Surface Transportation Board, 
chapter XI--Research and Innovative Technology Administration (DOT), and 
chapter XII--Transportation Security Administration (DHS). The contents 
of these volumes represent all current regulations codified under this 
title of the CFR as of October 1, 2023.

    In the volume containing parts 100-177, see Sec.  172.101 for the 
Hazardous Materials Table. The Federal Motor Vehicle Safety Standards 
appear in part 571.

    For this volume, Gabrielle E. Burns 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 49--TRANSPORTATION




                   (This book contains parts 1 to 99)

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

SUBTITLE A--Office of the Secretary of Transportation.......           1

[[Page 3]]



          Subtitle A--Office of the Secretary of Transportation




  --------------------------------------------------------------------
Part                                                                Page
1               Organization and delegation of powers and 
                    duties..................................           5
3               Official seal...............................          52
5               Administrative procedures...................          52
6               Implementation of Equal Access to Justice 
                    Act in agency proceedings...............          54
7               Public availability of information..........          60
8               Classified information: Classification/
                    declassification/access.................          77
9               Testimony of employees of the Department and 
                    production of records in legal 
                    proceedings.............................          82
10              Maintenance of and access to records 
                    pertaining to individuals...............          87
11              Protection of human subjects................         100
15              Protection of sensitive security information         118
17              Intergovernmental review of Department of 
                    Transportation programs and activities..         125
18-19

[Reserved]

20              New restrictions on lobbying................         128
21              Nondiscrimination in federally-assisted 
                    programs of the Department of 
                    Transportation--Effectuation of Title VI 
                    of the Civil Rights Act of 1964.........         139
22              Short-term lending program (STLP)...........         150
23              Participation of disadvantaged business 
                    enterprise in airport concessions.......         159
24              Uniform relocation assistance and real 
                    property acquisition for Federal and 
                    federally-assisted programs.............         180
25              Nondiscrimination on the basis of sex in 
                    education programs or activities 
                    receiving Federal financial assistance..         227
26              Participation by disadvantaged business 
                    enterprises in Department of 
                    Transportation financial assistance 
                    programs................................         243

[[Page 4]]

27              Nondiscrimination on the basis of disability 
                    in programs or activities receiving 
                    Federal financial assistance............         320
28              Enforcement of nondiscrimination on the 
                    basis of handicap in programs or 
                    activities conducted by the Department 
                    of Transportation.......................         336
29              Tribal transportation self-governance 
                    program.................................         343
30              Denial of public works contracts to 
                    suppliers of goods and services of 
                    countries that deny procurement market 
                    access to U.S. contractors..............         379
31              Program fraud civil remedies................         384
32              Governmentwide requirements for drug-free 
                    workplace (financial assistance)........         400
33              Transportation priorities and allocation 
                    system..................................         405
37              Transportation services for individuals with 
                    disabilities (ADA)......................         431
38              Americans with Disabilities Act (ADA) 
                    accessibility specifications for 
                    transportation vehicles.................         529
39              Transportation for individuals with 
                    disabilities: passenger vessels.........         567
40              Procedures for transportation workplace drug 
                    and alcohol testing programs............         583
41              Seismic safety..............................         700
71              Standard time zone boundaries...............         703
79              Medals of honor.............................         708
80              Credit assistance for surface transportation 
                    projects................................         709
89              Implementation of the Federal Claims 
                    Collection Act..........................         714
91              International air transportation fair 
                    competitive practices...................         721
92              Recovering debts to the United States by 
                    salary offset...........................         723
93

[Reserved]

95

[Reserved]

98              Enforcement of restrictions on post-
                    employment activities...................         733
99              Employee responsibilities and conduct.......         736
Appendix to Subtitle A--United States Railway Association--
  Employee Responsibilities and Conduct.....................         739

[[Page 5]]



PART 1_ORGANIZATION AND DELEGATION OF POWERS AND DUTIES--Table of Contents



                            Subpart A_General

Sec.
1.1 Overview.
1.2 Organization of the Department.
1.3 Exercise of authority.
1.4 Construction.

                    Subpart B_Office of the Secretary

1.11 Overview.
1.13 OST key responsibilities.
1.15 OST structure.
1.17 OST line of secretarial succession.

                              OST Officials

1.20 Secretary of Transportation.
1.21 Reservations of Authority to the Secretary of Transportation.
1.22 Deputy Secretary.
1.23 Delegations to the Deputy Secretary.
1.24 Under Secretary of Transportation for Policy.
1.25 Delegations to the Under Secretary of Transportation for Policy.
1.25a Redelegations by the Under Secretary of Transportation for Policy.
1.26 General Counsel.
1.27 Delegations to the General Counsel.
1.27a Delegations to the Career Deputy General Counsel.
1.27b Delegations to the Assistant General Counsel for General Law.
1.30 Assistant Secretaries.
1.31 Assistant Secretary for Transportation Policy.
1.32 Assistant Secretary for Aviation and International Affairs.
1.33 Chief Financial Officer and Assistant Secretary for Budget and 
          Programs.
1.34 Delegations to the Chief Financial Officer and Assistant Secretary 
          for Budget and Programs.
1.35 Assistant Secretary for Governmental Affairs.
1.36 Delegations to the Assistant Secretary for Governmental Affairs.
1.37 Assistant Secretary for Administration.
1.38 Delegations to the Assistant Secretary for Administration.
1.38a Redelegations by the Assistant Secretary for Administration.
1.39 Executive Secretariat.
1.40 Departmental Office of Civil Rights.
1.41 Delegations to the Director of the Departmental Office of Civil 
          Rights.
1.42 Office of Small and Disadvantaged Business Utilization.
1.43 Delegations to the Director of the Office of Small and 
          Disadvantaged Business Utilization.
1.44 Office of Intelligence, Security and Emergency Response.
1.45 Delegations to the Director of the Office of Intelligence, Security 
          and Emergency Response.
1.46 Office of Public Affairs.
1.47 Delegations to the Assistant to the Secretary and Director of 
          Public Affairs.
1.48 Office of the Chief Information Officer.
1.49 Delegations to the Chief Information Officer.
1.50 Office of Drug & Alcohol Policy & Compliance.
1.60 General Authorizations and Delegations to Secretarial Officers.

                  Subpart C_Office of Inspector General

1.70 Overview.
1.71 Key responsibilities.
1.72 Structure.
1.73 Authority of Inspector General.
1.74 Delegations to Inspector General.

                   Subpart D_Operating Administrations

1.80 Overview.
1.81 Delegations to all Administrators.
1.81a Redelegation by all Administrators.
1.82 The Federal Aviation Administration.
1.83 Delegations to the Federal Aviation Administrator.
1.84 The Federal Highway Administration.
1.85 Delegations to the Federal Highway Administrator.
1.86 The Federal Motor Carrier Safety Administration.
1.87 Delegations to the Federal Motor Carrier Safety Administrator.
1.88 The Federal Railroad Administration.
1.89 Delegations to the Federal Railroad Administrator.
1.90 The Federal Transit Administration.
1.91 Delegations to the Federal Transit Administrator.
1.92 The Maritime Administration.
1.93 Delegations to the Maritime Administrator.
1.94 The National Highway Traffic Safety Administration.
1.95 Delegations to the National Highway Traffic Safety Administrator.
1.96 The Pipeline and Hazardous Materials Safety Administration.
1.97 Delegations to the Pipeline and Hazardous Materials Safety 
          Administrator.
1.98 The Research and Innovative Technology Administration.
1.99 Delegations to the Research and Innovative Technology 
          Administrator.
1.100 The Saint Lawrence Seaway Development Corporation.
1.101 Delegations to the Saint Lawrence Seaway Development Corporation 
          Administrator.

[[Page 6]]


Appendix A to Part 1--Delegations and Redelegations by Secretarial 
          Officers

    Authority: 49 U.S.C. 322.

    Source: 81 FR 19819, Apr. 5, 2016, unless otherwise noted.



                            Subpart A_General



Sec.  1.1  Overview.

    This part describes the organization of the United States Department 
of Transportation and provides for the performance of duties imposed 
upon, and the exercise of powers vested in, the Secretary of 
Transportation by law.



Sec.  1.2  Organization of the Department.

    (a) The Secretary of Transportation is the head of the Department.
    (b) The Department comprises the Office of the Secretary of 
Transportation (OST), the Office of the Inspector General (OIG), and the 
following Operating Administrations, each headed by an Administrator who 
reports directly to the Secretary:
    (1) The Federal Aviation Administration (FAA).
    (2) The Federal Highway Administration (FHWA).
    (3) The Federal Motor Carrier Safety Administration (FMCSA).
    (4) The Federal Railroad Administration (FRA).
    (5) The Federal Transit Administration (FTA).
    (6) The Maritime Administration (MARAD).
    (7) The National Highway Traffic Safety Administration (NHTSA).
    (8) The Pipeline and Hazardous Materials Safety Administration 
(PHMSA).
    (9) The Research and Innovative Technology Administration (RITA).
    (10) The Saint Lawrence Seaway Development Corporation (SLSDC).



Sec.  1.3  Exercise of authority.

    (a) In exercising powers and performing duties delegated by this 
part or redelegated pursuant thereto, officials of the Department of 
Transportation are governed by applicable laws, Executive Orders and 
regulations and by policies, objectives, plans, standards, procedures, 
and limitations as may be issued from time to time by or on behalf of 
the Secretary, or, with respect to matters under their jurisdictions, by 
or on behalf of the Deputy Secretary, the Under Secretary, the General 
Counsel, an Assistant Secretary, the Inspector General, or an 
Administrator. This includes, wherever specified, the requirement for 
advance notice to, prior coordination with, or prior approval by an 
authority other than that of the official proposing to act.
    (b) Subject to the reservations of authority to the Secretary of 
Transportation in Sec.  1.21, the Deputy Secretary, the Under Secretary, 
the General Counsel, the Assistant Secretaries, the Inspector General, 
and the Administrators exercise the powers and perform the duties 
delegated to them under this part.
    (c) For delegations of authority vested in the Secretary by 
Executive Order 13526 (see also Executive Orders 12958 and 12065) 
originally to classify documents as secret and confidential, see Sec.  
8.11 of this subtitle. Previous delegations of authority to Department 
of Transportation officials to originally classify information as secret 
and confidential are hereby rescinded.



Sec.  1.4  Construction.

    For the purposes of this part:
    (a) ``Federal Aviation Administrator'' is synonymous with 
``Administrator of the Federal Aviation Administration.''
    (b) ``Federal Highway Administrator'' is synonymous with 
``Administrator of the Federal Highway Administration.''
    (c) ``Federal Motor Carrier Safety Administrator'' is synonymous 
with ``Administrator of the Federal Motor Carrier Safety 
Administration.''
    (d) ``Federal Railroad Administrator'' is synonymous with 
``Administrator of the Federal Railroad Administration.''
    (e) ``Federal Transit Administrator'' is synonymous with 
``Administrator of the Federal Transit Administration.''
    (f) ``Maritime Administrator'' is synonymous with ``Administrator of 
the Maritime Administration.''
    (g) ``National Highway Traffic Safety Administrator'' is synonymous 
with ``Administrator of the National Highway Traffic Safety 
Administration.''

[[Page 7]]

    (h) ``Pipeline and Hazardous Materials Safety Administrator'' is 
synonymous with ``Administrator of the Pipeline and Hazardous Materials 
Safety Administration.''
    (i) ``Saint Lawrence Seaway Development Corporation Administrator'' 
is synonymous with ``Administrator of the Saint Lawrence Seaway 
Development Corporation.''



                    Subpart B_Office of the Secretary



Sec.  1.11  Overview.

    This subpart sets forth the OST's key responsibilities, its basic 
organizational structure, and the line of Secretarial succession in time 
of need. It also describes the key responsibilities of OST officials, 
and sets forth delegations and reservations of authority to those 
officials.



Sec.  1.13  OST key responsibilities.

    (a) The OST is responsible for:
    (1) Providing leadership in formulating and executing well-balanced 
national and international transportation objectives, policies, and 
programs to ensure the Nation has safe, economically competitive 
transportation systems that support U.S. interests, that are maintained 
in a state of good repair, that foster environmental sustainability, and 
that support livable communities;
    (2) Chairing the Department's Safety Council;
    (3) Stimulating and promoting research and development in all modes 
and types of transportation, with special emphasis on transportation 
safety;
    (4) Coordinating the various transportation programs of the Federal 
Government;
    (5) Encouraging maximum private development of transportation 
services;
    (6) Providing responsive, timely, and effective liaison with 
Congress and public and private organizations on transportation matters;
    (7) Providing innovative approaches to urban transportation and 
environmental enhancement programs;
    (8) Overseeing the Department's multimodal freight policy;
    (9) Providing effective management of the Department as a whole to 
ensure it achieves organizational excellence;
    (10) Leading Department-wide efforts for greater transparency and 
accountability;
    (11) Administering the Department's Livable Communities initiative 
to increase access to convenient and affordable transportation choices 
and improve transportation networks that accommodate pedestrians and 
bicycles;
    (12) Coordinating the Department's credit and financial assistance 
programs by leading the Credit Council to ensure responsible financing 
for the Nation's transportation projects;
    (13) Formulating and executing policies to ensure effective 
operation of the Department's aviation economic program including 
functions related to consumer protection and civil rights, domestic 
airline licensing matters, competition oversight, airline data 
collection, and review of international route negotiations and route 
awards to carriers; and
    (14) Leading and coordinating Federal Government transportation 
fringe benefit programs.
    (b) [Reserved]



Sec.  1.15  OST structure.

    (a) Secretary and Deputy Secretary. The Secretary and Deputy 
Secretary are assisted by the following, all of which report directly to 
the Secretary:
    (1) The Chief of Staff;
    (2) The Executive Secretariat;
    (3) The Departmental Office of Civil Rights;
    (4) The Office of Small and Disadvantaged Business Utilization;
    (5) The Office of Intelligence, Security and Emergency Response;
    (6) The Office of Public Affairs;
    (7) The Office of the Chief Information Officer; and
    (8) The Office of Drug & Alcohol Policy & Compliance.
    (b) The Under Secretary of Transportation for Policy, the General 
Counsel, and the Assistant Secretaries for Administration, Budget and 
Programs, and Governmental Affairs also report directly to the 
Secretary.
    (c) Office of the Under Secretary of Transportation for Policy. This 
Office is composed of:

[[Page 8]]

    (1) The Office of the Assistant Secretary for Transportation Policy, 
which includes:
    (i) The Office of Policy Development, Strategic Planning and 
Performance;
    (ii) The Office of Infrastructure Finance and Innovation; and
    (iii) The Office of the Chief Economist.
    (2) The Office of the Assistant Secretary for Aviation and 
International Affairs, which includes:
    (i) The Office of International Transportation and Trade;
    (ii) The Office of International Aviation; and
    (iii) The Office of Aviation Analysis.
    (d) Office of the General Counsel. This Office is composed of:
    (1) The Office of General Law;
    (2) The Office of International Law;
    (3) The Office of Litigation;
    (4) The Office of Legislation;
    (5) The Office of Regulation and Enforcement;
    (6) The Office of Operations, which includes the Freedom of 
Information Act (FOIA) Office;
    (7) The Office of Aviation Enforcement and Proceedings, which 
includes the Aviation Consumer Protection Division; and
    (8) The Center for Alternative Dispute Resolution.
    (e) Office of the Chief Financial Officer and Assistant Secretary 
for Budget and Programs. This Office is composed of:
    (1) The Office of Budget and Program Performance;
    (2) The Office of Financial Management;
    (3) The Office of the Chief Financial Officer for the Office of the 
Secretary; and
    (4) The Office of Credit Oversight and Risk Management.
    (f) Office of the Assistant Secretary for Governmental Affairs. This 
Office contains the following functional areas: Congressional Affairs 
and Intergovernmental Affairs; and includes a Deputy Assistant Secretary 
for Tribal Government Affairs.
    (g) Office of the Assistant Secretary for Administration. This 
Office is composed of:
    (1) The Office of Audit Relations;
    (2) The Office of Human Resource Management;
    (3) The Office of Hearings;
    (4) The Office of Security;
    (5) The Office of the Senior Procurement Executive;
    (6) The Office of Financial Management and Transit Benefit Programs; 
and
    (7) The Office of Facilities, Information and Asset Management.



Sec.  1.17  OST line of secretarial succession.

    (a) The following officials, in the order indicated, shall act as 
Secretary of Transportation, in case of the absence or disability of the 
Secretary, until the absence or disability ceases, or in the case of a 
vacancy, until a successor is appointed. Notwithstanding the provisions 
of this section, the President retains discretion, to the extent 
permitted by the law, to depart from this order in designating an acting 
Secretary of Transportation.
    (1) Deputy Secretary.
    (2) Under Secretary of Transportation for Policy.
    (3) General Counsel.
    (4) Chief Financial Officer and Assistant Secretary for Budget and 
Programs.
    (5) Assistant Secretary for Transportation Policy.
    (6) Assistant Secretary for Governmental Affairs.
    (7) Assistant Secretary for Aviation and International Affairs.
    (8) Assistant Secretary for Administration.
    (9) Administrator of the Federal Highway Administration.
    (10) Administrator of the Federal Aviation Administration.
    (11) Administrator of the Federal Motor Carrier Safety 
Administration.
    (12) Administrator of the Federal Railroad Administration.
    (13) Administrator of the Federal Transit Administration.
    (14) Administrator of the Maritime Administration.
    (15) Administrator of the Pipeline and Hazardous Materials Safety 
Administration.
    (16) Administrator of the National Highway Traffic Safety 
Administration.

[[Page 9]]

    (17) Administrator of the Research and Innovative Technology 
Administration.
    (18) Administrator of the Saint Lawrence Seaway Development 
Corporation.
    (19) Regional Administrator, Southern Region, Federal Aviation 
Administration.
    (20) Director, Resource Center, Lakewood, Colorado, Federal Highway 
Administration.
    (21) Regional Administrator, Northwest Mountain Region, Federal 
Aviation Administration.
    (b) Without regard to the foregoing, a person directed to perform 
the duties of the Secretary pursuant to 5 U.S.C. 3347 (the Vacancies 
Act) shall act as Secretary of Transportation.

                              OST Officials



Sec.  1.20  Secretary of Transportation.

    The Secretary is the head of the Department. The Secretary exercises 
oversight of all of the OST components, as well as each of the Operating 
Administrations, and overall planning, direction, and control of the 
Department's agenda.



Sec.  1.21  Reservations of Authority to the Secretary of Transportation.

    (a) All powers and duties that are not delegated by the Secretary in 
this part, or otherwise vested in officials other than the Secretary, 
are reserved to the Secretary. Except as otherwise provided, the 
Secretary may exercise powers and duties delegated or assigned to 
officials other than the Secretary.
    (b) The delegations of authority in subpart C (Office of the 
Inspector General) and subpart D (Operating Administrations) of this 
part do not extend to the following actions, authority for which is 
reserved to the Secretary or the Secretary's delegatee within the Office 
of the Secretary:
    (1) General transportation matters.
    (i) Transportation leadership authority pursuant to 49 U.S.C. 301 
(Duties of the Secretary of Transportation: Leadership, consultation, 
and cooperation).
    (ii) Functions relating to transportation activities, plans, and 
programs under 49 U.S.C. 304 (Joint activities with the Secretary of 
Housing and Urban Development).
    (iii) Authority to develop, prepare, coordinate, transmit, and 
revise transportation investment standards and criteria under 49 U.S.C. 
305 (Transportation investment standards and criteria).
    (iv) Authority relating to standard time zones and advanced 
(daylight) time (15 U.S.C. 260 et seq.).
    (2) Legislation, rulemakings, and reports. (i) Submission to the 
President, the Director of the Office of Management and Budget, or 
Congress of proposals or recommendations for legislation, significant 
rulemakings and related documents as authorized by law, Executive 
Orders, proclamations or reorganization plans, or other Presidential 
action.
    (ii) Submission to the President or Congress of any report or any 
proposed transportation policy or investment standards or criteria, 
except with the prior written approval of the Secretary.
    (iii) Submission of the annual statement on systems of internal 
accounting and administrative control under the Federal Managers' 
Financial Integrity Act of 1982 (FMFIA) (31 U.S.C. 3512 note).
    (3) Budget and finance. (i) Approval and submission to the Office of 
Management and Budget of original or amended budget estimates or 
requests for allocations of personnel ceiling (31 U.S.C. 1108).
    (ii) Approval of requests for legislation which, if enacted, would 
authorize subsequent appropriations for the Department (31 U.S.C. 581b).
    (iii) Transfer of the balance of an appropriation from one operating 
element to another within the Department (31 U.S.C. 581c).
    (iv) Submission to the Director of the Office of Management and 
Budget of requests for the transfer of the balance or portions of an 
appropriation from one element to another within the Department (31 
U.S.C. 665).
    (4) Personnel. (i) Recommendations to the Office of Personnel 
Management regarding the allocation of a position to the Senior 
Executive Service (SES) or Senior Level (SL), or Scientific and

[[Page 10]]

Professional Positions (ST) (5 U.S.C. 5108).
    (ii) Recommendations to the Office of Personnel Management of 
approval of the qualifications of any candidate for a position in the 
SES or SL.
    (iii) Recommendations to the Office of Personnel Management of a 
Lump-Sum Incentive Award in Excess of $10,000 (5 U.S.C. 4502).
    (iv) Approval of the following actions relating to Schedules A, B, 
C, or D (5 CFR part 213) and noncareer executive assignment positions or 
incumbents, except for actions under Schedules A and B limited to one 
year or less at grade GS-9 or lower, or an equivalent level:
    (A) Establishment or abolition of positions;
    (B) Hires;
    (C) Promotions other than quality and periodic within-grade 
promotions;
    (D) Transfer of personnel to Schedule A, B, C, or D positions or 
non-career executive assignment positions, either permanently or on 
detail; and
    (E) Transfer of personnel from Schedule A, B, C, or D or non-career 
executive assignment positions to career Civil Service positions.
    (v) Approval of employment of experts or consultants.
    (vi) Authority to determine the maximum limit of age for appointment 
of air traffic controllers as provided by 5 U.S.C. 3307(b).
    (vii) Authority to develop, coordinate, and issue wage schedules 
under the Federal Wage system.
    (5) Security. (i) Authorizing the filling of a critical-sensitive 
position for a limited period by a person on whom a preappointment full 
field investigation has not been completed (Executive Order 10450) as 
amended and Executive Order 12968 as amended by Executive Order 13467.
    (ii) Requesting Presidential approval of a claim of executive 
privilege with respect to information requested by a Congressional 
committee or Member of Congress.
    (iii) Making determinations prescribed by Executive Order 12968 as 
amended by Executive Order 13467 and 32 CFR part 147 relating to the 
adjudication and final denial of access to classified information to 
industry personnel.
    (iv) Making those determinations or delegations prescribed by 
Executive Order 13526 that are reserved to the head of the Department.
    (6) Procurement. Exercising the extraordinary authority for defense 
contracts provided for in Pub. L. 85-804 [(50 U.S.C. 1431-1435)].
    (7) Printing. Requesting approval of the Joint Committee on Printing 
for any procurement or other action requiring Committee approval.
    (8) Interagency agreements. Executing any written interdepartmental 
or interagency agreement with the head of another executive department 
or agency.
    (9) Withholding of funds. Withholding or suspension of Federal-Aid 
Highway funds on a state-wide basis and the waiver or compromise of such 
withholding or suspension, except for the administration of 23 U.S.C. 
141, 158, 159, 161, and 163 which are specifically delegated in 
Sec. Sec.  1.85 (FHWA) and 1.95 (NHTSA).
    (10) National Highway Safety Advisory Committee. Directing the 
National Highway Safety Advisory Committee to meet (23 U.S.C. 404(c)).
    (11) Maritime Subsidy Board. Reviewing decisions, reports, orders 
and other actions of the Maritime Subsidy Board.
    (12) Cash purchases of passenger transportation. The authority under 
41 CFR 301-51.100 to authorize and approve cash purchases for emergency 
passenger transportation services costing more than $100.
    (13) Solicitation of gifts. The implied authority to solicit gifts 
associated with 49 U.S.C. 326(a).
    (14) Foreign travel. Approving official travel outside of the United 
States.
    (15) United States Merchant Marine Academy. Pursuant to 49 U.S.C. 
51303, the authority to appoint each year without competition as cadets 
at the United States Merchant Marine Academy not more than 40 qualified 
individuals with qualities the Secretary considers to be of special 
value to the Academy.
    (16) Challenges and competitions. Approving any challenge or 
competition

[[Page 11]]

administered by any office or Operating Administration of the 
Department.
    (17) Committees. Approving the establishment, modification, 
extension, or termination of all advisory committees (including industry 
advisory committees) subject to the Federal Advisory Committee Act (Pub. 
L. 92-463; 5 U.S.C. App.), and the designation of Departmental 
representatives to those committees.
    (18) Credit assistance approval. Granting final approval of 
applications for credit assistance under the Transportation 
Infrastructure Finance and Innovation Act (TIFIA), 23 U.S.C. 601-609.



Sec.  1.22  Deputy Secretary.

    Along with the Secretary, the Deputy Secretary exercises oversight 
of all of the OST components, as well as each of the Operating 
Administrations, and overall planning, direction, and control of the 
Department's agenda. The Deputy Secretary:
    (a) May exercise the authority of the Secretary, except where 
specifically limited by law, order, regulation, or instructions of the 
Secretary;
    (b) Serves as the Chief Operating Officer; and
    (c) Serves as the Chief Acquisition Officer.



Sec.  1.23  Delegations to the Deputy Secretary.

    The Deputy Secretary may exercise the authority of the Secretary, 
except where specifically limited by law, order, regulations, or 
instructions of the Secretary. In addition, the Deputy Secretary is 
delegated authority to:
    (a) Exercise executive control over Departmental Budgeting and 
Program Evaluation.
    (b) Serve as Chairman of the Departmental Executive Resources Board 
and its Executive Committee.
    (c) Serve as the Chair of the Department's Safety Council.
    (d) Serve as the Chair of the Department's Credit Council.
    (e) Approve the establishment, modification, extension, or 
termination of:
    (1) Department-wide (intra-department) committees affecting more 
than one program.
    (2) OST-sponsored interagency committees.
    (f) Approve the designation of:
    (1) Departmental representatives and the chairman for interagency 
committees sponsored by the Office of the Secretary.
    (2) Departmental members for international committees.
    (g) Serve as the representative of the Secretary on the board of 
directors of the National Railroad Passenger Corporation and carry out 
the functions vested in the Secretary as a member of the board by 49 
U.S.C. 24302.
    (h) Approve the initiation of regulatory action, as defined in 
Executive Order 12866, by Secretarial offices and Operating 
Administrations.



Sec.  1.24  Under Secretary of Transportation for Policy.

    The Under Secretary provides leadership in the Department's 
development of policies and programs to protect and enhance the safety, 
adequacy, and efficiency of the transportation system and services. The 
Office of the Under Secretary serves as the focal point within the 
Federal Government for coordination of intermodal transportation policy, 
which brings together departmental intermodal perspectives, advocates 
intermodal interests, and provides secretarial leadership and visibility 
on issues that involve or affect more than one Operating Administration.



Sec.  1.25  Delegations to the Under Secretary of Transportation for Policy.

    The Under Secretary is delegated the following authorities:
    (a) Lead the development of transportation policy and serve as the 
principal adviser to the Secretary on all transportation policy matters.
    (b) Establish policy and ensure uniform departmental implementation 
of the National Environmental Policy Act of 1969, Pub. L. 91-190, as 
amended (42 U.S.C. 4321-4347) within the Department of Transportation.
    (c) Oversee the implementation of 49 U.S.C. 303 (Policy on lands, 
wildlife and waterfowl refuges, and historic sites).
    (d) Represent the Secretary of Transportation on various interagency 
boards, committees, and commissions

[[Page 12]]

to include the Architectural and Transportation Barriers Compliance 
Board and the Advisory Council on Historic Preservation and the Trade 
Policy Review Group and the Trade Policy Staff Committee.
    (e) Serve as the Department's designated principal conservation 
officer pursuant to section 656 of the Department of Energy Organization 
Act, Pub. L. 94-91 [42 U.S.C. 7266], and carry out the functions vested 
in the Secretary by section 656 of the Act, which pertains to planning 
and implementing energy conservation matters with the Department of 
Energy.
    (f) Carry out the functions of the Secretary pertaining to aircraft 
with respect to Transportation Order T-1 (44 CFR chapter IV) under the 
Defense Production Act of 1950, as amended, Pub. L. 81-774, 64 Stat. 798 
[50 U.S.C. App. 2061 et seq.] and Executive Order 10480, as amended (see 
also Executive Order 10773 and 12919).
    (g) Serve as Department of Transportation member of the Interagency 
Group on International Aviation, and pursuant to Executive Order 11382, 
as amended, serve as Chair of the Group.
    (h) Serve as second alternate representing the Secretary of 
Transportation to the Trade Policy Committee as mandated by 
Reorganization Plan No. 3 of 1979 (5 U.S.C. App. at 1381), as amended, 
and Executive Order 12188, as amended.
    (i) As supplemented by 14 CFR part 385, and except as provided in 
Sec. Sec.  1.99(j) (RITA), and 1.27 (General Counsel) of this part, 
carry out the functions transferred to the Department from the Civil 
Aeronautics Board and other related functions and authority vested in 
the Secretary under the following:
    (1) Sections 40103(a)(2) (relating to the consultation with the 
Architectural and Transportation Barriers Compliance Board before 
prescribing regulations or procedures that will have a significant 
impact on accessibility of commercial airports for handicapped 
individuals), and (c) (relating to foreign aircrafts); 40105 (relating 
to international negotiations, agreements, and obligations); 40109(a), 
(c), (g), 46301(b) (smoke alarm penalty), (d), (f), (g) (relating to the 
authority to exempt certain air carriers) and (h); 40113(a) and (c); 
40114(a) (relating to reports and records); 40115 (relating to the 
withholding of information from public disclosure) of Chapter 401 of 49 
U.S.C.; and 40116 (relating to the Anti-Head Tax Act);
    (2) The following chapters of title 49, U.S.C., except as related to 
departmental regulation of airline consumer protection and civil rights 
which is delegated to the General Counsel at Sec.  1.27:
    (i) Chapter 411 of title 49, U.S.C., relating to air carrier 
certification;
    (ii) Chapter 413 of title 49, U.S.C., relating to foreign air 
transportation;
    (iii) Chapter 415 of title 49, U.S.C., relating to pricing;
    (iv) Chapter 417 of title 49, U.S.C., relating to the operations of 
air carriers, except sections 41721-41723;
    (v) Chapter 419 of title 49, U.S.C. and 39 U.S.C. 5402, relating to 
the transportation of mail; and
    (vi) Section 42303 of 49 U.S.C., relating to the management of the 
Web site regarding the use of insecticides in passenger aircraft.
    (3) Section 42111 of title 49, U.S.C. with respect to mutual aid 
agreements as it relates to foreign air transportation;
    (4) Chapters 461 and 463 of title 49, U.S.C., relating to aviation 
investigations, proceedings, and penalties under Part A of Subtitle VII 
of title 49, U.S.C. except for those sections delegated to the General 
Counsel under Sec.  1.27, and to the Federal Aviation Administrator 
under Sec.  1.83;
    (5) Chapter 473 of title 49, U.S.C., relating to international 
airport facilities.
    (6) Section 11 of the Clayton Act, Pub. L. 63-212 [15 U.S.C. 21], 
relating to air carriers and foreign air carriers.
    (7) Section 3 of An Act to Encourage Travel in the United States, 
and for other purposes, Pub. L. 76-755, 54 Stat. 773 [16 U.S.C. 18b].
    (8) Sections 108(a)(4), 621(b)(5), 704(a)(5), and 814(b)(5) of the 
Consumer Credit Protection Act, Pub. L. 90-321 [15 U.S.C. 1607(a)(4), 
1681s(b)(5), 1691c(a)(5), and 1692l(b)(5)].
    (j) Carry out the functions vested in the Secretary by 49 U.S.C. 
44907(b)(1), (c), and (e) related to the security of foreign airports in 
coordination with

[[Page 13]]

the General Counsel, the Federal Aviation Administrator, and the 
Assistant Secretary for Administration.
    (k) Carry out section 101(a)(2) of the Air Transportation Safety and 
System Stabilization Act, Pub. L. 107-42 [49 U.S.C. 40101 note], as 
delegated to the Secretary of Transportation by the President pursuant 
to the Presidential Memorandum dated September 25, 2001, 3 CFR, 2001 
Comp., p. 911.
    (l) Exercise the authority vested in the Secretary by section 11143 
of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: 
A Legacy for Users, Pub. L. 109-59, 119 Stat. 1144 (SAFETEA-LU), to 
manage the day-to-day activities associated with implementation of 
section 11143 regarding private activity bonds and tax-exempt financing 
of highway projects and rail-truck facilities.
    (m) In coordination with the General Counsel, carry out the duties 
of the Secretary under Executive Orders 12866 and 13563 to establish the 
values of time and statistical life in connection with assessing the 
costs and benefits of Departmental regulatory action.
    (n) Carry out the functions vested in the Secretary by 49 U.S.C. 
47129, relating to resolution of disputes over the reasonableness of 
fees imposed upon air carriers.
    (o) Carry out the functions and exercise the authority vested in the 
Secretary by 23 U.S.C. 167(f) (National Freight Strategic Plan).



Sec.  1.25a  Redelegations by the Under Secretary of Transportation for Policy.

    (a) The Assistant Secretary for Transportation Policy is redelegated 
authority to:
    (1)(i) Redelegate and authorize successive redelegation of authority 
granted in this paragraph (a) to officials within the Office of the 
Assistant Secretary for Transportation Policy, except as limited by law 
or specific administrative reservation.
    (ii) Publish, in appendix A of this part, redelegations made under 
paragraph (a)(1)(i) of this section.
    (2) Establish policy and maintain oversight of implementation of the 
National Environmental Policy Act of 1969, Pub. L. 91-190, as amended 
(42 U.S.C. 4321-4347) within the Department of Transportation.
    (3) Oversee the implementation of 49 U.S.C. 303 (Policy on lands, 
wildlife and waterfowl refuges, and historic sites).
    (4) Represent the Secretary of Transportation on various interagency 
boards, committees, and commissions to include the Architectural and 
Transportation Barriers Compliance Board and the Advisory Council on 
Historic Preservation and the Trade Policy Review Group and the Trade 
Policy Staff Committee.
    (5) Serve as the Department's designated principal conservation 
officer pursuant to section 656 of the Department of Energy Organization 
Act, Pub. L. 94-91 [ 42 U.S.C. 7266], and carry out the functions vested 
in the Secretary by section 656 of the Act, which pertains to planning 
and implementing energy conservation matters with the Department of 
Energy.
    (6) Carry out the functions of section 42303 of 49 U.S.C., relating 
to the management of the Web site regarding the use of insecticides in 
passenger aircraft.
    (7) In coordination with the General Counsel, carry out the duties 
of the Secretary under Executive Orders 12866 and 13563 to establish the 
value of statistical life in connection with assessing the costs and 
benefits of Departmental regulatory action.
    (8) Carry out the duties of the Secretary under Executive Orders 
12866 and 13563 to establish the value of time in connection with 
assessing the costs and benefits of Departmental regulatory action.
    (b) The Assistant Secretary for Aviation and International Affairs 
is redelegated authority to:
    (1)(i) Redelegate and authorize successive redelegation of authority 
granted in this paragraph (b) to officials within the Office of the 
Assistant Secretary for Aviation and International Affairs, except as 
limited by law or specific administrative reservation.
    (ii) Publish, in appendix A of this part, redelegations made under 
paragraph (b)(1)(i) of this section.
    (2) Carry out the functions of the Secretary pertaining to aircraft 
with respect to Transportation Order T-1 (44

[[Page 14]]

CFR chapter IV) under the Defense Production Act of 1950, as amended, 
Pub. L. 81-774, 64 Stat. 798 [50 U.S.C. App. 2061 et seq.] and Executive 
Order 10480, as amended (see also Executive Order 10773 and 12919).
    (3) Serve as Department of Transportation member of the Interagency 
Group on International Aviation, and pursuant to Executive Order 11382, 
serve as Chair of the Group.
    (4) Serve as second alternate representing the Secretary of 
Transportation to the Trade Policy Committee as mandated by 
Reorganization Plan No. 3 of 1979 (5 U.S.C. App. at 1381), as amended, 
and Executive Order 12188.
    (5) Represent the Department of Transportation at the Trade Policy 
Committee Review Group and the Trade Policy Staff Committee, which were 
established at 15 CFR part 2002 as subordinate bodies of the Trade 
Policy Committee.
    (6) As supplemented by 14 CFR part 385, and except as provided in 
Sec. Sec.  1.99 (RITA), and 1.27 (General Counsel), carry out the 
functions transferred to the Department from the Civil Aeronautics Board 
and other related functions and authority vested in the Secretary under 
the following provisions of Title 49, U.S.C.:
    (i) Sections 40103(a)(2) (relating to the consultation with the 
Architectural and Transportation Barriers Compliance Board before 
prescribing regulations or procedures that will have a significant 
impact on accessibility of commercial airports for handicapped 
individuals), and (c) (relating to foreign aircrafts); 40105 (relating 
to international negotiations, agreements, and obligations); 40109(a), 
(c), (g), 46301(b) (smoke alarm penalty), (d), (f), (g) (relating to the 
authority to exempt certain air carriers) and (h); 40113(a) and (c); 
40114(a) (relating to reports and records); 40115 (relating to the 
withholding of information from public disclosure; and 40116 (relating 
to the Anti-Head Tax Act);
    (ii) The following chapters of title 49, U.S.C., except as related 
to departmental regulation of airline consumer protection and civil 
rights which is delegated to the General Counsel at Sec.  1.27:
    (A) Chapter 411, relating to air carrier certification;
    (B) Chapter 413, relating to foreign air transportation;
    (C) Chapter 415, relating to pricing;
    (D) Chapter 417, relating to the operations of air carriers, except 
section 41721-41723;
    (E) Chapter 419, and 39 U.S.C. 5402, relating to the transportation 
of mail;
    (iii) Section 42111 of title 49, U.S.C. with respect to mutual aid 
agreements as it relates to foreign air transportation;
    (iv) Chapters 461 and 463 of title 49, U.S.C., relating to aviation 
investigations, proceedings, and penalties under Part A of 49 U.S.C. 
Subtitle VII except for those sections delegated to the General Counsel 
under Sec.  1.27, and to the Federal Aviation Administrator under Sec.  
1.83;
    (v) Chapter 473 of title 49, U.S.C., relating to international 
airport facilities.
    (vi) Section 11 of the Clayton Act, Pub. L. 63-212 [15 U.S.C. 21], 
relating to air carriers and foreign air carriers.
    (vii) Section 3 of An Act to Encourage Travel in the United States, 
and for other purposes, Pub. L. 76-755, 54 Stat. 773 [16 U.S.C. 18b].
    (viii) Sections 108(a)(4), 621(b)(5), 704(a)(5), and 814(b)(5) of 
the Consumer Credit Protection Act, Pub. L. 90-321 [15 U.S.C. 
1607(a)(4), 1681s(b)(5), 1691c(a)(5), and 1692l(b)(5)].
    (7) Carry out the functions vested in the Secretary by 49 U.S.C. 
44907(b)(1), (c), and (e) related to the security of foreign airports in 
coordination with the General Counsel, the Federal Aviation 
Administrator, and the Assistant Secretary for Administration.
    (8) Carry out section 101(a)(2) of the Air Transportation Safety and 
System Stabilization Act, Pub. L. 107-42 [49 U.S.C. 40101 note], as 
delegated to the Secretary of Transportation by the President pursuant 
to the Presidential Memorandum dated September 25, 2001, 3 CFR, 2001 
Comp., p. 911.
    (9) Carry out the functions vested in the Secretary by 49 U.S.C. 
47129, relating to resolution of disputes over the reasonableness of 
fees imposed upon air carriers.



Sec.  1.26  General Counsel.

    The General Counsel is the chief legal officer of the Department, 
legal

[[Page 15]]

advisor to the Secretary, and final authority within the Department on 
questions of law. The Office of the General Counsel provides legal 
advice to the Secretary and secretarial offices, and supervision, 
coordination, and review of the legal work of the Chief Counsel Offices 
in the Department. The General Counsel participates with each Operating 
Administrator in the performance reviews of Chief Counsel. The General 
Counsel is responsible for retention of outside counsel, and for the 
approval of the hiring and promotion of departmental attorneys (other 
than in the Federal Aviation Administration). The General Counsel is 
also responsible for departmental regulation under statutes including 
the Air Carrier Access Act, statutes prohibiting unfair and deceptive 
practices in air transportation, the Americans with Disabilities Act, 
the Disadvantaged Business Enterprise program, and the Uniform Time Act. 
The General Counsel coordinates all international legal matters, and 
departmental participation in proceedings before other federal and state 
agencies. The General Counsel provides oversight of departmental 
litigation, regulation, legislation, Freedom of Information Act 
compliance, and administrative enforcement.



Sec.  1.27  Delegations to the General Counsel.

    The General Counsel is delegated authority to:
    (a) Conduct all rulemaking proceedings under the Americans with 
Disabilities Act, the Disadvantaged Business Enterprise program, and the 
Uniform Time Act, as amended (15 U.S.C. 260 et seq.).
    (b) Determine the practicability of applying the standard time of 
any standard time zone to the movements of any common carrier engaged in 
interstate or foreign commerce and issue operating exceptions in any 
case in which the General Counsel determines that it is impractical to 
apply the standard time (49 CFR 71.1).
    (c) Issue regulations making editorial changes or corrections to the 
regulations of the Office of the Secretary.
    (d) Grant permission, under specific circumstances, to deviate from 
a policy or procedure prescribed by the regulations of the Office of the 
Secretary (49 CFR part 9) with respect to the testimony of OST employees 
as witnesses in legal proceedings, the serving of legal process and 
pleadings in legal proceedings involving the Secretary or his Office, 
and the production of records of that Office pursuant to subpoena.
    (e) Respond to petitions for rulemaking or petitions for exemptions 
in accordance with 49 CFR 5.3, and notify petitioners of decisions in 
accordance with 49 CFR 5.3(d)(5).
    (f) Provide counsel to employees on questions of conflict of 
interest covered by departmental regulations on employee responsibility 
and conduct.
    (g) Coordinate the issuance of proposed Executive Orders and 
proclamations for transmittal to the Office of Management and Budget for 
action by the White House.
    (h) Except with respect to proceedings relating to safety fitness of 
an applicant (49 U.S.C. 307), decide on requests to intervene or appear 
before courts (with the consent of the Department of Justice) or 
agencies to present the views of the Department, subject to the 
concurrence of the Secretary.
    (i) Exercise the authority delegated to the Department by the 
Assistant Attorney General, Land and Natural Resources Division, in his 
order of October 2, 1970, to approve the sufficiency of the title to 
land being acquired by purchase or condemnation by the United States for 
the use of the Department. (See also Appendix 1 relating to delegations 
to Operating Administration Chief Counsel).
    (j) Exercise the Secretary's authority under 28 U.S.C. 2672 and 28 
CFR part 14, related to the administrative disposition of federal tort 
claims, for claims involving the Office of the Secretary.
    (k) Compromise, suspend collection action on, or terminate claims of 
the United States that are referred to, or arise out of the activities 
of the Office of the Secretary of Transportation.
    (l) Conduct coordination with foreign governments under section 118 
of the Deep Seabed Hard Mineral Resources Act (30 U.S.C. 1428).
    (m) Exercise review authority under 49 U.S.C. 41307 (related actions 
about foreign air transportation) delegated to

[[Page 16]]

the Secretary by the President in Executive Order 12597.
    (n) Assist and protect consumers in their dealings with the air 
transportation industry and conduct all departmental regulation of 
airline consumer protection and civil rights pursuant to chapters 401 
(General Provisions), 411 (Air Carrier Certificates), 413 (Foreign Air 
Transportation), 417 (Operations of Carriers), and 423 (Passenger Air 
Service Improvements) of title 49 U.S.C.
    (o) Carry out the functions vested in the Secretary by 49 U.S.C. 
40119(b) (Security and research and development activities), as 
implemented by 49 CFR part 15 (Protection of Sensitive Security 
Information), in consultation and coordination with the Office of 
Intelligence, Security and Emergency Response.
    (p) Appear on behalf of the Department on the record in hearing 
cases, and initiate and carry out enforcement actions on behalf of the 
Department, under the authority transferred to the Department from the 
Civil Aeronautics Board as described in Sec. Sec.  1.25 and 1.25a 
(delegations to and redelegations by the Under Secretary), and 1.99 
(RITA). This includes the authority to compromise penalties under 49 
U.S.C. 46301 (civil penalties); to issue appropriate orders, including 
cease and desist orders, under 49 U.S.C. 46101 (complaints and 
investigations); and to require the production of information, under 49 
U.S.C. 41708, enter carrier property and inspect records, under 49 
U.S.C. 41709, and inquire into the management of the business of a 
carrier under 49 U.S.C. 41711 (Air carrier management inquiry and 
cooperation with other authorities), as appropriate to the enforcement 
responsibilities. In the event that such an enforcement matter comes 
before the Secretary of Transportation for adjudication, the Deputy 
General Counsel shall advise the Secretary.
    (q) Initiate and carry out enforcement actions relating to:
    (1) Foreign airport security on behalf of the Department under 49 
U.S.C. 44907; and
    (2) The Consumer Credit Protection Act under section 4(a)(5) of the 
Civil Aeronautics Board Sunset Act of 1984 (Pub. L. 98-443) [15 U.S.C. 
1607(a)(4), 1681s(b)(5), 1691c(a)(5) and 1692l(b)(5)].
    (r) Administer 5 U.S.C. 552 (FOIA) and 49 CFR part 7 (Public 
Availability of Information) in connection with the records of the 
Office of the Secretary and issue procedures to ensure uniform 
departmental implementation of statutes and regulations regarding public 
access to records.
    (s) Prepare reports by carriers on incidents involving animals 
during air transport pursuant to 49 U.S.C. 41721.
    (t) Exercise authority vested in the Secretary by the Federal Civil 
Penalties Inflation Adjustment Act of 1990 (Pub. L. 101-410, 104 Stat. 
890), as amended by the Debt Collection Improvement Act of 1996 (Pub. L. 
104-134, 110 Stat. 1321), to promulgate rules that adjust civil 
penalties with respect to aviation enforcement.
    (u) In coordination with the Under Secretary, to carry out the 
duties of the Secretary under Executive Orders 12866 and 13563 to 
establish the value of statistical life in connection with assessing the 
costs and benefits of Departmental regulatory action.
    (v) Approve the initiation of regulatory action, as defined in 
Executive Order 12866, by Secretarial offices and Operating 
Administrations in the event that the Deputy Secretary is absent or 
otherwise unavailable to exercise such authority (see Sec.  1.23(h)).
    (w) Approve requests to reclassify rulemakings as non-significant 
under DOT procedures.

[81 FR 19819, Apr. 5, 2016, as amended at 84 FR 71717, Dec. 27, 2019; 86 
FR 17294, Apr. 2, 2021]



Sec.  1.27a  Delegations to the Career Deputy General Counsel.

    The career Deputy General Counsel is delegated authority to:
    (a) Serve as the Department's Designated Agency Ethics Official in 
accordance with 5 CFR 2638.202;
    (b) Serve as the Department's Dispute Resolution Specialist pursuant 
to section 3(b) of the Alternative Dispute Resolution Act of 1996, Pub. 
L. 104-320, 5 U.S.C. App.; and
    (c) Serve as the Department's Chief FOIA Officer under 5 U.S.C. 
552(j).

[[Page 17]]



Sec.  1.27b  Delegations to the Assistant General Counsel for General Law.

    The Assistant General Counsel for General Law is delegated authority 
to serve as the Department's Alternate Agency Ethics Official in 
accordance with 5 CFR 2638.202.



Sec.  1.30  Assistant Secretaries.

    (a) In performing their functions, the Assistant Secretaries are 
responsible for continuing liaison and coordination among themselves and 
with the Operating Administrations to:
    (1) Avoid unnecessary duplication of effort by or in conflict with 
the performance of similar activities by the Operating Administrations 
and the other Assistant Secretaries pursuant to their Secretarial 
delegations of authority or other legal authorities; and
    (2) Assure that the views of the Operating Administrations are 
considered in developing departmental policies, plans, and proposals. 
The Assistant Secretaries are also available to assist, as appropriate, 
the Operating Administrations in implementing departmental policy and 
programs. As primary staff advisors to the Secretary, the Assistant 
Secretaries are concerned with transportation matters of the broadest 
scope, including modal, intermodal, and other matters of Secretarial 
interest.
    (b) There are exceptions to the normal staff role described in 
paragraph (a) of this section. In selected instances, the Secretary has 
specifically delegated to Assistant Secretaries authority which they may 
exercise on the Secretary's behalf.



Sec.  1.31  Assistant Secretary for Transportation Policy.

    The Assistant Secretary for Transportation Policy provides policy 
advice to the Secretary, the Deputy Secretary, and the Under Secretary. 
The Office of the Assistant Secretary for Transportation Policy is 
responsible for: Public policy development, coordination, and evaluation 
for all aspects of transportation, except in the areas of aviation and 
international affairs, with the goal of making the Nation's 
transportation resources function as an integrated national system; 
evaluation of private transportation sector operating and economic 
issues; evaluation of public transportation sector operating and 
economic issues; regulatory and legislative initiatives and review; 
energy, environmental, disability, and safety policy and program 
development and review; and transportation infrastructure assessment and 
review. For delegations to the Assistant Secretary for Transportation 
Policy, see Sec.  1.25a(a).



Sec.  1.32  Assistant Secretary for Aviation and International Affairs.

    The Office of the Assistant Secretary for Aviation and International 
Affairs is responsible for policy development, coordination, and 
evaluation of issues involving aviation, as well as international issues 
involving all areas of transportation; private sector evaluation; 
international transportation and transport-related trade policy and 
issues; regulatory and legislative initiatives and review of maritime/
shipbuilding policies and programs; transport-related trade promotion; 
coordination of land transport relations with Canada and Mexico; 
economic regulation of the airline industry while placing maximum 
reliance on market forces and on actual and potential competition; the 
essential air service program and other rural air service programs; and, 
in coordination with the FAA, promotion of the aerospace industry. For 
delegations to the Assistant Secretary for Aviation and International 
Affairs, see Sec.  1.25a(b).



Sec.  1.33  Chief Financial Officer and Assistant Secretary for Budget
and Programs.

    (a) The Chief Financial Officer (CFO) is the principal budget and 
financial advisor to the Secretary and serves as Assistant Secretary for 
Budget and Programs. The CFO and Assistant Secretary for Budget and 
Programs provides oversight and policy guidance for all budget, 
financial management, program performance, and internal control 
activities of the Department and its Operating Administrations.
    (b) The CFO and Assistant Secretary for Budget and Programs concurs 
in the appointment and promotion of Chief Financial Officers, Budget 
Officers, and Directors of Finance of the

[[Page 18]]

Department and its Operating Administrations, and participates with each 
Administrator in the performance reviews of Chief Financial Officers, 
Budget Officers, and Directors of Finance in each of the Operating 
Administrations.
    (c) The CFO and Assistant Secretary for Budget and Programs, in 
consultation with the Chief Information Officer, may designate any 
information technology system as a financial management system under the 
CFO's policy and oversight area of responsibility.
    (d) The CFO and Assistant Secretary for Budget and Programs serves 
as the Vice Chair of the Department's Credit Council. The Office of the 
Assistant Secretary supports the Department's Credit Council by 
analyzing applications for the Department's various credit programs. The 
CFO also oversees the TIFIA program and the TIFIA Joint Program Office 
on behalf of the Secretary, including the evaluation of individual 
projects, and provides overall policy direction and program decisions 
for the TIFIA program.
    (e) The CFO and Assistant Secretary for Budget and Programs is 
responsible for preparation, review, and presentation of Department 
budget estimates; liaison with the Office of Management and Budget and 
Congressional Budget and Appropriations Committees; preparation of the 
Department's annual financial statements; departmental financial plans, 
apportionments, reapportionments, reprogrammings, and allotments; 
program and systems evaluation and analysis; program evaluation 
criteria; program resource plans; analysis and review of legislative 
proposals and one-time reports and studies required by Congress; and 
budget and financial management relating to the Office of the Secretary.



Sec.  1.34  Delegations to the Chief Financial Officer and Assistant
Secretary for Budget and Programs.

    The Chief Financial Officer and Assistant Secretary for Budget and 
Programs is delegated authority to:
    (a) Serve as the Department's Chief Financial Officer pursuant to 31 
U.S.C. 901 (Establishment of Agency Chief Financial Officers).
    (b) Exercise day-to-day operating management responsibility over the 
Office of Budget and Program Performance, the Office of the OST Chief 
Financial Officer, the Office of Financial Management, and the Office of 
Credit Oversight and Risk Management.
    (c) Direct and manage the Departmental planning, evaluation, budget, 
financial management, and internal control activities.
    (d) Exercise oversight and provide exclusive policy guidance to the 
Enterprise Services Center (ESC) regarding all financial management 
activities conducted by ESC and financial systems operated by ESC. This 
authority includes concurrence with any organizational changes within 
the Federal Aviation Administration that may affect financial management 
operations of the ESC.
    (e) Request apportionment or reapportionment of funds by the Office 
of Management and Budget, provided that no request for apportionment or 
reapportionment which anticipates the need for a supplemental 
appropriation shall be submitted to the Office of Management and Budget 
without appropriate certification by the Secretary.
    (f) Issue allotments or allocations of funds to components of the 
Department.
    (g) Authorize and approve official travel and transportation for 
staff members of the Immediate Office of the Secretary including 
authority to sign and approve related travel orders and travel vouchers, 
but not including requests for overseas travel.
    (h) Issue monetary authorizations for use of reception and 
representation funds.
    (i) Except as otherwise delegated, establish or operate or both, any 
special funds that are required by statute or administrative 
determination.
    (j) Exercise the Secretary's authority under 31 U.S.C. 3711 to 
collect, compromise, suspend collection action on, or terminate claims 
of the United States which are referred to, or arise out of the 
activities of, the Office of the Secretary (excluding claims pertaining 
to the Working Capital Fund), subject to the limits on that authority

[[Page 19]]

imposed by 31 U.S.C. 3711 and the Federal Claims Collection Standards, 
31 CFR chapter IX.
    (k) Exercise the Secretary's authority under the Improper Payments 
Elimination and Recovery Act of 2010 (Pub. L. 111-204) (33 U.S.C. 3301 
note).
    (l) Exercise the Secretary's authority under the Improper Payments 
Information Act of 2002 (Pub. L. 107-300) (31 U.S.C. 3321 note).
    (m) Exercise the Secretary's authority under the Recovery Auditing 
Act (Section 831, Defense Authorization Act for FY 2002 (Pub. L. 107-
107)).
    (n) Exercise the Secretary's authority under the Federal Financial 
Management Improvement Act of 1996 (31 U.S.C. 3512 note).
    (o) Exercise the Secretary's authority under Federal Managers' 
Financial Integrity Act of 1982 (FMFIA) (31 U.S.C. 3512 note).
    (p) Exercise the Secretary's authority under the Accounting and 
Auditing Act of 1950 (31 U.S.C. 3512), as amended by FMFIA.
    (q) Exercise the Secretary's authority under the Government 
Performance and Results Act (GPRA) (Pub. L. 103-623).
    (r) Exercise the Secretary's authority under the Accountability of 
Tax Dollars Act of 2002, 31 U.S.C. 3515.
    (s) Exercise the Secretary's authority under the Government 
Management Reform Act of 1994 (GMRA) (Pub. L. 103-356).
    (t) Exercise the Secretary's authority under 5 U.S.C. 5584 and the 
OMB memorandum, ``Determination with Respect to Transfer of Functions 
Pursuant to Public Law 104-316'' (December 17, 1996) to waive claims of 
the United States arising out of an erroneous payment to an employee of 
pay or allowances, or travel, transportation, or relocation expenses and 
allowances, and deny requests for waiver of such claims.
    (u) Serve as the Department's Performance Improvement Officer under 
31 U.S.C. 1124.



Sec.  1.35  Assistant Secretary for Governmental Affairs.

    The Assistant Secretary for Governmental Affairs serves as the 
Department's primary point of contact for Congressional offices, as well 
as State and locally elected officials; works with other departmental 
offices to ensure that Congressional mandates are fully implemented by 
the Department; and works with the White House, other Federal agencies, 
and Congress to fulfill the Department's legislative priorities. The 
Assistant Secretary coordinates congressional and intergovernmental 
activities with governmental affairs offices in the Operating 
Administrations and is the final authority on governmental affairs 
issues within the Department. The Assistant Secretary participates with 
each Administrator in the hiring decisions (other than in the Federal 
Aviation Administration) and performance reviews of all of the Operating 
Administrations' Directors of Governmental Affairs. The Assistant 
Secretary supervises the Deputy Assistant Secretary for Tribal 
Government Affairs who plans and coordinates the Department's policies 
and programs with respect to Indian tribes and tribal organizations.

[82 FR 19192, Apr. 26, 2017]



Sec.  1.36  Delegations to the Assistant Secretary for Governmental
Affairs.

    The Assistant Secretary for Governmental Affairs is delegated 
authority to:
    (a) Establish procedures for responding to Congressional 
correspondence; and
    (b) Supervise the Deputy Assistant Secretary for Tribal Government 
Affairs.



Sec.  1.37  Assistant Secretary for Administration.

    The Assistant Secretary for Administration is the principal advisor 
to the Secretary and Deputy Secretary on Department-wide administrative 
matters and is the final authority on these matters within the 
Department. The Assistant Secretary for Administration serves as the 
Designated Agency Safety and Health Official. The Office of the 
Assistant Secretary for Administration's responsibilities include: 
Strategic management of human capital; monitoring the progress of 
departmental offices related to sustainability goals; controls and 
standards to ensure that procurement and financial assistance programs 
are in accord with good

[[Page 20]]

business practice; follow-up and resolution of Government Accountability 
Office and Inspector General audit reviews; information resource 
management; property management information; facilities; and security. 
The Assistant Secretary for Administration is responsible for 
recommending performance objectives for the Operating Administrations' 
Directors of Human Resources. The Assistant Secretary for Administration 
participates with each Administrator in the hiring decisions (other than 
in the Federal Aviation Administration) and performance reviews of all 
of the Operating Administrations' Associate Administrators for 
Administration.

[82 FR 19192, Apr. 26, 2017]



Sec.  1.38  Delegations to the Assistant Secretary for Administration.

    The Assistant Secretary for Administration is delegated authority 
for the following:
    (a) Acquisition. (1) Exercise procurement authority with respect to 
requirements of the Office of the Secretary or an Operating 
Administration, if requested under an agreement with that Operating 
Administration.
    (2) Make the required determinations with respect to mistakes in 
bids relative to sales of personal property conducted by the Office of 
the Secretary without power of redelegation.
    (3) Except as delegated to the National Highway Traffic Safety 
Administrator by Sec.  1.95, carry out the functions vested in the 
Secretary by section 3 of Executive Order 11912 (``Delegation of 
Authorities Relating to Energy Policy and Conservation''), as amended.
    (4) Carry out the functions delegated to the Secretary from time to 
time by the Administrator of General Services to lease real property for 
Department use.
    (5) Carry out the duties and responsibilities of agency head for 
departmental procurement within the meaning of the Federal Acquisition 
Regulation. This authority as agency head for departmental procurement 
excludes duties, responsibilities, and powers expressly reserved for the 
Secretary of Transportation.
    (6) Serve as Deputy Chief Acquisition Officer.
    (7) Provide departmental guidance on grants, cooperative agreements, 
and other financial assistance transactions, but not including loans, 
loan guarantees, interest subsidies, or insurance.
    (8) Issue departmental procurement regulations, subject to 
coordination with the General Counsel and interested Operating 
Administrations. In commenting upon proposed provisions for the 
procurement regulations, the Operating Administrations will indicate the 
nature and purpose of any additional implementing or supplementing 
policy guidance which they propose to issue at the Operating 
Administration level.
    (b) Personnel. (1) Conduct a personnel management program for the 
Office of the Secretary of Transportation, with authority to take, 
direct others to take, recommend or approve any personnel action with 
respect to such authority.
    (2) Serve as Vice Chair of the Departmental Executive Resources 
Board.
    (3) Exercise emergency authority to hire without the prior approval 
of the Deputy Secretary normally required by departmental procedures 
implementing general employment limitations when in the judgment of the 
Assistant Secretary immediate action is necessary to effect the hire and 
avoid the loss of a well-qualified job applicant, and for similar 
reasons.
    (4) Review proposals of the Office of the Secretary for each new 
appointment or transfer to verify the essentiality of the position.
    (5) Approve employment of experts and consultants in accordance with 
5 U.S.C. 3109.
    (6) Provide policy and overall direction in the execution of the DOT 
Labor-Management Relations Program.
    (7) Develop and operate the Federal Employee Workplace Drug and 
Alcohol Testing Program in accordance with Executive Order 12564 and The 
Omnibus Transportation Employee Testing Act of 1991, Public Law 102-143, 
Title V.
    (8) Serve as the Chief Human Capital Officer:
    (i) Oversee, direct, and execute all authorities included in the 
Chief

[[Page 21]]

Human Capital Officers Act of 2002 (5 U.S.C. 1401 et seq.); and
    (ii) Advise the Secretary on the Department's human capital needs 
and obligations, and implement all related rules and regulations of the 
President and the Office of Personnel Management, and all laws governing 
human resource management.
    (9) Serve as the Telework Managing Officer under 5 U.S.C. 6505.
    (c) Sustainability. (1) Responsible for ensuring that the Department 
meets its sustainability goals pursuant to the Energy Independence and 
Security Act (EISA) of 2007 (Pub. L. 110-140); the Energy Policy Act of 
2005 (Pub. L. 109-58); and Executive Order 13693 (``Planning for Federal 
Sustainability in the Next Decade'').
    (2) Serve as the Chief Sustainability Officer under Executive Order 
13693.
    (d) Finance. (1) Settle and pay claims by employees of the Office of 
the Secretary for personal property losses as provided by 31 U.S.C. 
3721.
    (2) Oversee the Working Capital Fund for the Office of the 
Secretary, established by 49 U.S.C. 327.
    (3) Exercise the Secretary's authority under 31 U.S.C. 3711 to 
collect, compromise, suspend collection action on, or terminate claims 
of the United States which are referred to, or arise out of the 
activities of the Working Capital Fund, subject to the limits on that 
authority imposed by 31 U.S.C. 3711 and the Federal Claims Collection 
Standards, 31 CFR chapter IX.
    (e) Security. (1) Serves as the agency representative appointed by 
the Secretary of Transportation to participate on the Interagency 
Security Committee in accordance with Executive Order 12977, to 
establish policies for the security in and protection of Federal 
facilities.
    (2) Represents the department on the White House Communications 
Agency Principal Communications Working Group and the Department of 
State Overseas Security Policy Board.
    (3) Conducts an internal security management program for the 
Department of Transportation with authority to take, direct others to 
take, recommend, or approve security actions with respect to such 
authorities related to personnel security, physical security, technical 
security, and classified and sensitive information management.
    (4) Issues identification media as directed by Homeland Security 
Presidential Directive 12, ``Policy for Common Identification Standard 
for Federal Employees and Contractors'' and other identification media 
(including credentials, passports and visas) by direction of the 
Secretary.
    (5) Manages the Department's classified information program as 
directed by Executive Order 13526 (``Classified National Security 
Information'').
    (6) Takes certain classified actions on behalf of the Department in 
connection with technical counter-surveillance programs as required by 
Executive Order 13526 (``Classified National Security Information'').
    (7) In conjunction with the Office of Security, Intelligence and 
Emergency Response, and the Office of the General Counsel, carries out 
the functions vested in the Secretary by 49 U.S.C. 40119(b), as 
implemented by 49 CFR part 15, related to the protection of information 
designated as Sensitive Security Information.
    (8) Ensure Department-wide compliance with Executive Orders 12968 as 
amended, 13467, 13488, 13526, 13556, and related regulations and 
issuances.
    (f) Printing. Request approval of the Joint Committee on Printing, 
Congress of the United States, for any procurement or other action 
requiring Committee approval.
    (g) Hearings. Provide logistical and administrative support to the 
Department's Office of Hearings.
    (h) Federal real property management. Carry out the functions 
assigned to the Secretary with respect to Executive Order 13327, as 
amended.
    (i) The Uniform Act. Carry out the functions vested in the Secretary 
to implement the Uniform Relocation Assistance and Real Property 
Acquisition Act of 1970 (Uniform Act), 42 U.S.C. Chapter 61, with 
respect to programs administered by the Office of the Secretary. The 
Assistant Secretary may prescribe additional Uniform Act guidance that 
is appropriate to those particular programs, provided that such 
additional guidance must be consistent with the Uniform Act and 49 CFR 
part

[[Page 22]]

24. The lead agency for Uniform Act matters is the Federal Highway 
Administration (see Sec.  1.85 and 49 CFR part 24).
    (j) Designated Agency Safety and Health Official. Serve as the 
Designated Agency Safety and Health Official under 29 CFR 1960.6(a) to 
represent the interest of, and support, the Department's occupational 
safety and health program.
    (k) Senior Real Property Officer. Serve as the Senior Real Property 
Officer for the Department pursuant to Executive Order 13327 (``Federal 
Real Property Asset Management'') (as amended), and chair the 
Departmental Real Property Planning Council.
    (l) Transportation fringe benefits. (1) Oversee the Department's 
transportation fringe benefit program under 5 U.S.C. 7905 and 26 U.S.C. 
132(f).
    (2) Consult with and provide guidance to other Federal agencies on 
transportation fringe benefit programs under 5 U.S.C. 7905 and 26 U.S.C. 
132(f).
    (3) Establish and maintain uniform Federal Government standards for 
developing and supporting Federal agencies' transportation fringe 
benefit programs under 5 U.S.C. 7905 and 26 U.S.C. 132(f).



Sec.  1.38a  Redelegations by the Assistant Secretary for Administration.

    (a) The Director, Office of the Senior Procurement Executive is 
redelegated the authority to:
    (1) Carry out the duties and responsibilities of agency head for 
departmental procurement within the meaning of the Federal Acquisition 
Regulation except for those duties expressly reserved for the Secretary 
of Transportation.
    (2) Carry out the functions of the Chief Acquisition Officer (CAO) 
except for those functions specifically reserved for the Deputy 
Secretary. In carrying out these functions and in support of 
requirements under Services Acquisition Reform Act (SARA), enacted as 
part of the National Defense Authorization Act for 2004--Public Law 108-
136, the Senior Procurement Executive (SPE) is expected to interact 
directly, and without intervening authority, with the CAO on issues 
related to strategic acquisition policy, implementation, and management. 
The nature and frequency of interactions with the CAO will be determined 
mutually between the SPE and the CAO.
    (3) Procure and authorize payment for property and services for the 
Office of the Secretary, with power to re-delegate and authorize 
successive re-delegations.
    (b) The Director of Human Resources Management is redelegated the 
authority to:
    (1) Develop departmental human capital policies and objectives, and 
monitor and oversee the implementation of those policies.
    (2) Establish departmental human capital performance objectives and 
metrics.
    (3) Conduct a personnel management program for the Office of the 
Secretary with authority to take, direct others to take, recommend or 
approve any personnel action with respect to such authority.
    (4) Concur in the appointment and promotion of all Human Resources 
(HR) Directors in each Operating Administration and participate in the 
performance reviews of HR Directors.
    (5) Provide policy and overall direction in the execution of the DOT 
Labor-Management Relations Program.
    (6) Develop and operate the Federal Employee Workplace Drug and 
Alcohol Testing Program in accordance with Executive Order 12564 and The 
Omnibus Transportation Employee Testing Act of 1991, Public Law 102-143, 
Title V.
    (7) Develop, coordinate, and issue wage schedules for Department 
employees under the Federal Wage System.
    (c) The Director of Financial Management within the Office of the 
Assistant Secretary for Administration is redelegated the authority to:
    (1) Settle and pay claims by Working Capital Fund employees for 
personal property losses as provided by 31 U.S.C. 3721 if the amount of 
the payment does not exceed $500.
    (d) The Director, Transit Benefit Program is redelegated the 
authority to:
    (1) Oversee the Department's transportation fringe benefit program 
under 5 U.S.C. 7905 and 26 U.S.C. 132(f).

[[Page 23]]

    (2) Consult with and provide guidance to other Federal agencies on 
transportation fringe benefit programs under 5 U.S.C. 7905 and 26 U.S.C. 
132(f).
    (3) Establish and maintain uniform Federal Government standards for 
developing and supporting Federal agencies' transportation fringe 
benefit programs under 5 U.S.C. 7905 and 26 U.S.C. 132(f).



Sec.  1.39  Executive Secretariat.

    The Executive Secretariat provides organized staff services to the 
Secretary and Deputy Secretary to assist them in carrying out their 
management functions and their responsibilities for formulating, 
coordinating and communicating major policy decisions. The Office 
controls and coordinates internal and external material directed to the 
Secretary and Deputy Secretary and ensures that their decisions and 
instructions are implemented.



Sec.  1.40  Departmental Office of Civil Rights.

    The Departmental Office of Civil Rights serves as the Department's 
Equal Employment Opportunity (EEO) Officer and Title VI Coordinator. The 
Director also serves as principal advisor to the Secretary and the 
Deputy Secretary on the civil rights and nondiscrimination statutes, 
regulations, and Executive Orders applicable to the Department, 
including titles VI and VII of the Civil Rights Act of 1964, as amended, 
the Age Discrimination in Employment Act of 1967, as amended, the Age 
Discrimination Act of 1975, as amended, section 504 of the 
Rehabilitation Act of 1973, as amended, the Americans with Disabilities 
Act of 1990, the Equal Pay Act of 1963, the ADA Amendments Act of 2008, 
and the Genetic Information Nondiscrimination Act of 2008. The 
Departmental Office of Civil Rights provides guidance to the Operating 
Administrations and Secretarial officers on these matters. The Office 
periodically reviews and evaluates the civil rights programs of the 
Operating Administrations to ensure that recipients of financial 
assistance meet applicable Federal civil rights requirements.



Sec.  1.41  Delegations to the Director of the Departmental Office
of Civil Rights.

    The Director of the Departmental Office of Civil Rights is delegated 
authority to conduct all stages of the formal employment discrimination 
complaints process (including acceptance/dismissal, investigation, and 
final adjudication); to provide guidance to the Operating 
Administrations and Secretarial officers concerning the implementation 
and enforcement of all civil rights laws, regulations and Executive 
Orders for which the Department is responsible; to otherwise perform 
activities to ensure compliance with external civil rights programs; and 
to review and evaluate the Operating Administrations' enforcement of 
these authorities. These authorities include:
    (a) Title VI and VII of the Civil Rights Act of 1964, 42 U.S.C. 
2000d et seq. and 2000e et seq.
    (b) Sections 501 and 504 of the Rehabilitation Act of 1973, 29 
U.S.C. 791 and 794-794a.
    (c) Age Discrimination in Employment Act of 1967, 29 U.S.C. 621 et 
seq.
    (d) Age Discrimination Act of 1975, 42 U.S.C. 6101 et seq.
    (e) Americans with Disabilities Act of 1990, 42 U.S.C. 12101-121213.
    (f) ADA Amendments Act of 2008 (Pub. L. 110-325) [42 U.S.C. 12101 
Note].
    (g) Genetic Information Nondiscrimination Act of 2008, 42 U.S.C. 
2000ff et seq.
    (h) Equal Pay Act of 1963, 29 U.S.C. 206(d).
    (i) Alcohol, Drug Abuse, and Mental Health Administration 
Reorganization Act (Pub. L. 102-321)
    (j) Chapter XIV of subtitle B, of title 29 of the CFR (Equal 
Employment Opportunity Commission Regulations).
    (k) Title VIII of the Civil Rights Act of 1968 (Pub. L. 90-284) [42 
U.S.C. 3601 et seq.].
    (l) 40 U.S.C. 476 (prohibition on sex discrimination).
    (m) Title IX of the Education Amendments of 1972, 20 U.S.C. 1681.
    (n) In coordination with the Assistant Secretary for Transportation 
Policy, Executive Order 12898 (``Federal Actions to Address 
Environmental Justice in Minority Populations and Low-

[[Page 24]]

Income Populations'') (See also Executive Order 12948).
    (o) 49 U.S.C. 306 (prohibition on discrimination in programs 
receiving financial assistance), 5310 (transportation for elderly 
persons and persons with disabilities), 5332 (nondiscrimination in mass 
transportation), 41705 (discrimination by air carriers against 
handicapped persons), 47113 (minority and disadvantaged business 
participation), and 47123 (nondiscrimination in airport improvement 
programs).
    (p) 23 U.S.C. 324 and 402(b)(1)(D) (nondiscrimination in highway 
programs).
    (q) The Intermodal Surface Transportation Efficiency Act of 1991, 
Public Law 102-240, 105 Stat. 1919, section 1003.



Sec.  1.42  Office of Small and Disadvantaged Business Utilization.

    The Director of the Office of Small and Disadvantaged Business 
Utilization ensures that the Department's small and disadvantaged 
business policies and programs are developed in a fair, efficient, and 
effective manner. The Office is responsible for the Department's 
implementation and execution of the functions and duties under the Small 
Business Act, and providing opportunities, technical assistance, and 
financial services to the small and disadvantaged business community.



Sec.  1.43  Delegations to the Director of the Office of Small and
Disadvantaged Business Utilization.

    The Director of Small and Disadvantaged Business Utilization is 
delegated authority to:
    (a) Exercise departmental responsibility for the implementation and 
execution of functions and duties under sections 2[8] and 2[15] of the 
Small Business Act (Pub. L. 85-836) [15 U.S.C. 637 and 644].
    (b) Carry out the functions vested in the Secretary by 49 U.S.C. 332 
(Minority Resource Center).



Sec.  1.44  Office of Intelligence, Security and Emergency Response.

    The Director of the Office of Intelligence, Security and Emergency 
Response is responsible for the development, coordination, and execution 
of plans and procedures for the Department to balance transportation 
security requirements with the safety, mobility and economic needs of 
the Nation through effective intelligence, security, preparedness and 
emergency response programs. The Director is the Department's principal 
Emergency Coordinator for the implementation of these programs.



Sec.  1.45  Delegations to the Director of the Office of Intelligence,
Security and Emergency Response.

    The Director of Intelligence, Security, and Emergency Response is 
delegated authority to:
    (a) Carry out the functions related to emergency preparedness and 
response vested in the Secretary by the following authorities: 49 U.S.C. 
101 and 301; Executive Order 12148, as amended (``Federal Emergency 
Management''); Executive Order 12656 (``Assignment of Emergency 
Preparedness Responsibilities'') (as amended; see Executive Order 
13286); Executive Order 12742 (``National Security Industrial 
Responsiveness''); Executive Order 13434 (``National Security 
Professional Development''); Reorganization Plan No. 3 of 1978 (5 U.S.C. 
app at 235 (2012); and such other statutes, executive orders, and other 
directives as may pertain to emergency preparedness and response.
    (b) Serve as the Department's Continuity Coordinator in accordance 
with National Security Presidential Directive 51/Homeland Security 
Presidential Directive 20, National Continuity Policy, and Federal 
Continuity Directives (FCD) 1 Federal Executive Branch National 
Continuity Program and Requirements and FCD 2 Federal Executive Branch 
Mission Essential Function and Primary Mission Essential Function 
Identification and Submission Process. Provide leadership for 
departmental programs pertaining to intelligence related to the 
transportation sector, transportation security policy, and civil 
transportation emergency preparedness and response activities.
    (c) Lead departmental collaboration efforts with the Department of 
Homeland Security and other Departments and Agencies related to 
transportation security and transportation infrastructure protection as 
required by Homeland Security Presidential Directive 7,

[[Page 25]]

Critical Infrastructure Identification, Prioritization, and Protection.
    (d) Together with the Assistant Secretary for Administration, carry 
out oversight and management of the duties pertaining to national 
security professional development assigned to the Secretary under 
Executive Order 13434 (``National Security Professional Development'').
    (e) Together with the Office of the Assistant Secretary for Aviation 
and International Affairs, coordinate the Department's responsibilities 
under National Security Presidential Directive 44, Management of 
Interagency Efforts Concerning Reconstruction and Stabilization, and 
Presidential Decision Directive 56, Managing Complex Contingency 
Operations, pertaining to interagency reconstruction and stabilization 
assistance.
    (f) Lead departmental efforts pertaining to transportation-related 
international civil emergency preparedness activities, including 
coordinating DOT representation on North Atlantic Treaty Organization 
committees, as directed under Executive Order 12656 (as amended; see 
Executive Order 13286).
    (g) Carry out the functions vested in the Secretary by 49 U.S.C. 
40119(b), as implemented by 49 CFR part 15, in consultation and 
coordination with the General Counsel.
    (h) Oversee the Department's protective service program.
    (i) Serve as the Secretary's representative to the Transportation 
Security Oversight Board, in accordance with 49 U.S.C. 115, when so 
designated.
    (j) Lead Departmental participation in internal and interagency 
planning efforts related to preparedness in accordance with Presidential 
Policy Directive 8, National Preparedness, in coordination with the 
Under Secretary.
    (k) Serve as the Secretary's senior advisor on matters pertaining to 
public health, biological, and medical matters.
    (l) Develop departmental plans to support the Department of Defense 
Civil Reserve Air Fleet (CRAF) program and allocate civil air carrier 
aircraft to CRAF based on Department of Defense requirements.
    (m) Oversee operation of the Department's Crisis Management Center.
    (n) Lead departmental efforts for all interaction with the Program 
Manager, Information Sharing Environment to include appointing the 
Associate Director for Intelligence as the DOT Information Sharing 
Program Manager to coordinate day-to-day Information Sharing Environment 
matters.
    (o) Carry out departmental responsibilities under Executive Order 
13587 (``Structural Reforms to Improve the Security of Classified 
Networks and the Responsible Sharing and Safeguarding of Classified 
Information'') including overseeing classified information sharing and 
safeguarding efforts for DOT. Oversee the day-to-day activities for 
monitoring the Top Secret and Secret classified network used by DOT and 
function as the Senior Official principally responsible for establishing 
and implementing the DOT Insider Threat Program.
    (p) Serve as the department's program manager responsible for 
oversight of all intelligence programs, to include the DOT 
Counterintelligence effort as it pertains to the DOT classified 
networks, and coordinate intelligence matters throughout the department. 
Nothing in this provision is intended to prohibit or limit a component's 
ability to conduct intelligence activities authorized by law.
    (q) Carry out the functions under the Defense Production Act of 
1950, Public Law 81-774, 64 Stat. 798, as amended (50 U.S.C. app. 2061 
et seq.), that were vested in the Secretary by Executive Order 13603 
(``National Defense Resources Preparedness'').



Sec.  1.46  Office of Public Affairs.

    The Director of Public Affairs is the principal advisor to the 
Secretary and Secretarial Officers on public affairs issues and the 
final authority on public affairs issues within the Department. The 
Office of Public Affairs prepares news releases and supporting media 
materials, and maintains a new media presence. The Office also provides 
information to the Secretary on opinions and reactions of the public and 
news media on programs and transportation issues. The Office of Public 
Affairs is responsible for the supervision, coordination, and review of 
the activities of

[[Page 26]]

the public affairs offices within the Operating Administrations. The 
Director of Public Affairs participates with each Administrator in the 
hiring decisions (other than in the Federal Aviation Administration) and 
performance reviews of all of the Operating Administrations' Directors 
of Public Affairs.

[82 FR 19193, Apr. 26, 2017]



Sec.  1.47  Delegations to the Assistant to the Secretary and Director
of Public Affairs.

    The Assistant to the Secretary and Director of Public Affairs is 
delegated authority to:
    (a) Monitor the overall public information program and review and 
approve departmental informational materials having policy-making 
ramifications before they are printed and disseminated.
    (b) Carry out the functions to promote carpooling and vanpooling 
transferred to the Department of Transportation by section 310 of the 
Department of Energy Organization Act of 1977 (Pub. L. 95-91) [42 U.S.C. 
7159].



Sec.  1.48  Office of the Chief Information Officer.

    The Chief Information Officer (CIO) is the principal information 
technology (IT), cyber security, privacy, and records management advisor 
to the Secretary, and is the final authority on these matters within the 
Department. The Office of the CIO supports the Organizational Excellence 
Strategic Goal by providing leadership on all matters associated with 
the Department's IT portfolio. The CIO participates with each 
Administrator in the hiring decisions and performance reviews of the 
Operating Administrations' CIOs.

[82 FR 19193, Apr. 26, 2017]



Sec.  1.49  Delegations to the Chief Information Officer.

    The Chief Information Officer is delegated authority to:
    (a) Carry out all functions and responsibilities assigned to the 
Secretary with respect to the Paperwork Reduction Act of 1995 (44 U.S.C. 
3506);
    (b) Carry out all functions and responsibilities assigned to the 
Secretary with respect to the Clinger-Cohen Act of 1996 (40 U.S.C. 11312 
to 11314, and 11317);
    (c) Carry out all functions and responsibilities assigned to the 
Secretary with respect to the E-Government Act of 2002, Public Law 107-
347;
    (d) Carry out all functions and responsibilities necessary to ensure 
compliance with the Federal Information Security Management Act of 2002 
(44 U.S.C. 3534 and 3544);
    (e) Serve as the Chief Privacy Officer, 42 U.S.C. 2000ee-2, and 
administer the Privacy Act of 1974, 5 U.S.C. 552a, and 49 CFR part 10 
(Maintenance of and Access to Records Pertaining to Individuals) in 
connection with the records of the Office of the Secretary;
    (f) Carry out all functions and responsibilities necessary to issue 
notices of Department of Transportation systems of records as required 
by the Privacy Act;
    (g) Carry out all functions and responsibilities assigned to the 
Secretary with respect to the Federal Records Act (44 U.S.C. 3101-3102) 
and necessary to ensure compliance with the regulations of the National 
Archives and Records Administration (36 CFR parts 1220 through 1299; 44 
U.S.C. Chapters 21, 29, 31, and 33), in coordination with the General 
Counsel; and
    (h) Serve as the Senior Agency Official for Geospatial Information 
under Office of Management and Budget Memorandum M-06-07, ``Designation 
of a Senior Agency Official for Geospatial Information'' (March 3, 
2006).



Sec.  1.50  Office of Drug & Alcohol Policy & Compliance.

    The Office of Drug & Alcohol Policy & Compliance advises the 
Secretary on national and international drug testing and control issues 
and is the principal advisor to the Secretary on rules related to the 
drug and alcohol testing of safety-sensitive transportation employees in 
aviation, trucking, railroads, mass transit, pipelines, and other 
transportation industries. The Office, in coordination with the Office 
of the General Counsel, publishes and provides interpretations of rules 
related to 49 CFR part 40 on the conduct of drug and alcohol tests, 
including how to conduct tests, and which procedures to use when 
testing. The Office

[[Page 27]]

coordinates with Federal Agencies and assists foreign governments in 
developing drug and alcohol testing programs and implementing the 
President's National Drug Control Strategy.



Sec.  1.60  General Authorizations and Delegations to Secretarial
Officers.

    (a) Acting in his or her own name and title, the Under Secretary, 
the General Counsel, and each Assistant Secretary, within his or her 
sphere of responsibility, is authorized to identify and define the 
requirements for, and to recommend to the Secretary, new or revised 
departmental policies, plans, and proposals. Each of these officers is 
authorized to issue departmental standards, criteria, systems and 
procedures that are consistent with applicable laws, Executive Orders, 
Government-wide regulations and policies established by the Secretary, 
and to inspect, review, and evaluate departmental program performance 
and effectiveness and advise the Secretary regarding the adequacy 
thereof.
    (b) Except for nondelegable statutory duties including those that 
transfer as a result of succession to act as Secretary of 
Transportation, each Deputy Assistant Secretary and Deputy General 
Counsel is authorized to act for and perform the duties of his or her 
principal in the absence or disability of the principal and as otherwise 
directed by the principal.
    (c) The Deputy Secretary, the Under Secretary, the General Counsel, 
and the Assistant Secretaries for Administration, Budget and Programs, 
and Governmental Affairs are delegated authority to:
    (1) Redelegate and authorize successive redelegations of authority 
granted by the Secretary within their respective organizations, except 
as limited by law or specific administrative reservation, including 
authority to publish those redelegations in appendix A of this part.
    (2) Authorize and approve official travel (except foreign travel) 
and transportation for themselves, their subordinates, and others 
performing services for, or in cooperation with, the Office of the 
Secretary.
    (3) Establish ad hoc committees for specific tasks within their 
assigned staff area.
    (4) Establish, modify, extend, or terminate standing committees 
within their specific areas of responsibility when directed or 
authorized to do so by the Secretary.
    (5) Designate members of interagency committees when such committees 
are specifically concerned with responsibilities of direct interest to 
their office.
    (6) Exercise the following authorities with respect to positions in 
the Senior Executive Service and Senior Level within their respective 
areas of responsibility:
    (i) Determine how executive level positions will be filled; i.e., by 
reassignment, promotion, or appointment.
    (ii) Establish selection criteria to be used in identifying eligible 
candidates.
    (iii) Confer with the Administrators on selection criteria and 
candidates for an executive level position that is a counterpart of an 
activity or position in the Office of the Secretary.
    (iv) Recommend final selection for executive level positions, 
subject to review by the Executive Committee of the Departmental 
Executive Resources Board and approval by the Secretary and the Office 
of Personnel Management.
    (7) Enter into inter- and intra-departmental reimbursable agreements 
other than with the head of another department or agency (31 U.S.C. 
686). This authority may be redelegated only to office directors or 
other comparable levels and to contracting officers.
    (8) Administer and perform the functions described in their 
respective functional statements.
    (9) Exercise the authority of the Secretary to make certifications, 
findings and determinations under the Regulatory Flexibility Act (Pub. 
L. 96-354) with regard to any rulemaking document for which issuance 
authority is delegated by other sections in this part. This authority 
may be redelegated to those officials to whom document issuance 
authority has been redelegated.
    (10) Exercise the authority of the Secretary to resolve informal 
allegations of discrimination arising in or relating to their respective 
organizations

[[Page 28]]

through Equal Employment Opportunity counseling or the Alternative 
Dispute Resolution process and to develop and implement affirmative 
action and diversity plans within their respective organizations.
    (11) Exercise the authority vested in the Secretary by 49 U.S.C. 
326(a) and 31 U.S.C. 1353 to accept, subject to the concurrence of the 
Designated Agency Ethics Official, the following: Gifts of property 
(other than real property) not exceeding $1,000 in value, gifts of 
services (in carrying out aviation duties and powers) not exceeding 
$1,000 in value, and reimbursement of travel expenses from non-federal 
sources not exceeding $3,000 in value. Acceptance of gifts or travel 
reimbursement that exceed these limits in value or are otherwise 
significant may only take place with the additional concurrence of the 
General Counsel. This delegation extends only to the acceptance of gifts 
or travel expenses and does not authorize the solicitation of gifts, 
which is reserved to the Secretary at Sec.  1.21.



                  Subpart C_Office of Inspector General



Sec.  1.70  Overview.

    This subpart describes the key responsibilities of the Office of 
Inspector General, the structure of the office, and the authority of the 
Inspector General.



Sec.  1.71  Key responsibilities.

    The Inspector General conducts, supervises, and coordinates audits 
and investigations; reviews existing and proposed legislation and makes 
recommendations to the Secretary and Congress concerning their effect on 
the economy and efficiency of program administration, or the prevention 
and detection of fraud and abuse; recommends policies for and conducts, 
supervises, or coordinates other activities of the Department for the 
purpose of promoting economy and efficiency in program administration, 
or preventing and detecting fraud and abuse; and keeps the Secretary and 
the Congress fully and currently informed.



Sec.  1.72  Structure.

    This Office is composed of:
    (a) The Office of the Deputy Inspector General;
    (b) The Office of the Principal Assistant Inspector General for 
Investigations;
    (c) The Office of the Principal Assistant Inspector General for 
Auditing and Evaluation;
    (d) The Office of the Assistant Inspector General for 
Administration; and
    (e) The Office of the Assistant Inspector General for Legal, 
Legislative and External Affairs.



Sec.  1.73  Authority of Inspector General.

    The Inspector General shall report to and be under the general 
supervision of the Secretary and Deputy Secretary. The Inspector General 
has such authority as is provided by the Inspector General Act of 1978, 
as amended, and as is otherwise provided by law. Authorities provided to 
the Inspector General by law are reserved to the Inspector General. In 
accordance with the statutory intent of the Inspector General Act to 
create an independent and objective unit, the Inspector General is 
authorized to make such investigations and reports relating to the 
administration of the programs and operations of the Department as are, 
in the judgment of the Inspector General, necessary and desirable. 
Neither the Secretary nor the Deputy Secretary shall prevent or prohibit 
the Inspector General from initiating, carrying out, or completing any 
audit or investigation, or from issuing any subpoena during the course 
of any audit or investigation.



Sec.  1.74  Delegations to Inspector General.

    The Inspector General is delegated authority to:
    (a) Redelegate and authorize successive redelegations of authority 
granted by the Secretary within the Office of Inspector General, except 
as limited by law or specific administrative reservation.
    (b) Authorize and approve official travel, including foreign travel 
and transportation for themselves, their subordinates, and others 
performing services for, or in cooperation with, the Office of Inspector 
General.
    (c) Exercise the authority of the Secretary to resolve informal 
allegations

[[Page 29]]

of discrimination arising in or relating to the Office of Inspector 
General through Equal Employment Opportunity counseling or the 
Alternative Dispute Resolution process and to develop and implement 
affirmative action and diversity plans.
    (d) Exercise the authority vested in the Secretary by 49 U.S.C. 
326(a) to accept gifts of property (other than real property) or 
services (in carrying out aviation duties and powers), and the authority 
to accept travel reimbursements from non-federal sources under 31 U.S.C. 
1353.
    (e) Exercise the implied authority to solicit gifts associated with 
49 U.S.C. 326(a), notwithstanding the reservation of authority to the 
Secretary in Sec.  1.21.
    (f) Carry out the emergency preparedness functions assigned to the 
Secretary by Executive Order 12656 (as amended; see Executive Order 
13286) and by the Federal Emergency Management Agency and General 
Services Administration (FEMA and GSA) as they pertain to the Office of 
Inspector General, including those relating to continuity of operations, 
emergency resource management, and training.
    (g) Determine the existence and amount of indebtedness and the 
method of collecting repayments from employees and members within the 
Office of Inspector General and collect repayments accordingly, as 
provided by 5 U.S.C. 5514.
    (h) Waive claims of the United States arising out of an erroneous 
payment to an employee of the Office of Inspector General of pay or 
allowances, or travel, transportation, or relocation expenses and 
allowances, and deny requests for waiver of such claims, as authorized 
by 5 U.S.C. 5584 and the OMB memorandum, ``Determination with Respect to 
Transfer of Functions Pursuant to Public Law 104-316'' (December 17, 
1996). But for claims arising from erroneous payments to current 
employees, this delegation of authority is limited to claims greater 
than $500. For claims arising from erroneous payments to former 
employees, this delegation of authority is not limited by claim amount. 
Redelegation of this authority may be made only to the principal 
officials responsible for financial management or such officials' 
principal assistants.
    (i) Settle and pay claims by employees of the Office of Inspector 
General for personal property losses as provided by 31 U.S.C. 3721 
(Claims of personnel of agencies and the District of Columbia government 
for personal property damage or loss).
    (j) Review and approve for payment any voucher for $25 or less the 
authority for payment of which is questioned by a certifying or 
disbursing officer.
    (k) [Reserved]
    (l) Exercise the Secretary's authority under 31 U.S.C. 3711 to 
collect, compromise, suspend collection action on, or terminate claims 
of the United States which are referred to, or arise out of the 
activities of, the Office of Inspector General, subject to the limits on 
that authority imposed by 31 U.S.C. 3711 and the Federal Claims 
Collection Standards, 31 CFR chapter IX.
    (m) Exercise the Secretary's authority under 28 U.S.C. 2672 and 28 
CFR part 14, related to the administrative disposition of federal tort 
claims, for claims involving the Office of Inspector General. The 
Inspector General may request the approval of the Attorney General to 
adjust, compromise, and settle any such claim if the amount of the 
adjustment, compromise, or award exceeds $100,000, but only after the 
General Counsel concurs with the request. If the Inspector General 
believes that a pending claim presents a novel question of law or of 
policy, he or she shall coordinate with the General Counsel to obtain 
the advice of the Assistant Attorney General in charge of the Civil 
Division. If the Inspector General settles a claim for an amount greater 
than $50,000, the Inspector General shall prepare a memorandum fully 
explaining the basis for the action taken and coordinate with the 
General Counsel before sending a copy of the memorandum to the Director, 
Federal Torts Claims Act Staff, Torts Branch of the Civil Division, U.S. 
Department of Justice.
    (n) Make written requests under subsection (b)(7) of the Privacy Act 
of 1974, 5 U.S.C. 552a(b)(7), for records maintained by other agencies 
that are necessary to carry out an authorized law enforcement activity.

[[Page 30]]

    (o) Administer the Freedom of Information Act, 5 U.S.C. 552, and 49 
CFR part 7 (Public Availability of Information) in connection with the 
records of the Office of the Inspector General.
    (p) Administer the Privacy Act of 1974, 5 U.S.C. 552a, and 49 CFR 
part 10 (Maintenance of and Access to Records Pertaining to Individuals) 
in connection with the records of the Office of the Inspector General.
    (q) Exercise the authority of the Secretary over and with respect to 
any personnel within the Office of Inspector General, except as 
prescribed by the Secretary or limited by law.
    (r) Approve payment of recruitment, relocation, and retention 
incentives under 5 U.S.C. 5753 and 5754.
    (s) Administer 49 CFR part 9 (Testimony of Employees of the 
Department and Production of Records in Legal Proceedings) in connection 
with the records of the Office of Inspector General and testimony of 
current and former employees of the Office of Inspector General.



                   Subpart D_Operating Administrations



Sec.  1.80  Overview.

    This subpart sets forth the key responsibilities of the Operating 
Administrations, and the delegations of authority from the Secretary of 
Transportation to the Administrators.



Sec.  1.81  Delegations to all Administrators.

    (a) Except as prescribed by the Secretary of Transportation, each 
Administrator is authorized to:
    (1) Exercise the authority of the Secretary over and with respect to 
any personnel within their respective organizations.
    (2) [Reserved]
    (3) Exercise the authority vested in the Secretary to prescribe 
regulations under 49 U.S.C. 322(a) with respect to statutory provisions 
for which authority is delegated by other sections in this part.
    (4) Carry out the functions of the Secretary concerning 
environmental enhancement by 49 U.S.C. 303 (Duties of the Secretary of 
Transportation: Policy on lands, wildlife and waterfowl refuges, and 
historic sites) and 23 U.S.C. 138 as they relate to matters within the 
primary responsibility of each Operating Administration.
    (5) Carry out the functions of the Secretary under the National 
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), section 
176(c) of the Clean Air Act (42 U.S.C. 7506(c)), and related 
environmental laws as they relate to matters within the primary 
responsibility of each Operating Administration.
    (6) Carry out the functions of the Secretary under section 106 of 
the Historic Preservation Act of 1966, 16 U.S.C. 470f, as they relate to 
matters within the primary responsibility of each Operating 
Administration.
    (7) Administer FOIA and 49 CFR part 7 (Public Availability of 
Information) in connection with the records of the Operating 
Administration.
    (8) Administer the Privacy Act of 1974, 5 U.S.C. 552a, and 49 CFR 
part 10 (Maintenance of and Access to Records Pertaining to Individuals) 
in connection with the records of the Operating Administration.
    (9) Make written requests under subsection (b)(7) of the Privacy Act 
for records maintained by other agencies that are necessary to carry out 
an authorized law enforcement activity.
    (10) Carry out the emergency preparedness functions assigned to the 
Secretary by Executive Order 12656, (as amended; see Executive Order 
13286) and by the Federal Emergency Management Agency and General 
Services Administration (FEMA and GSA) as they pertain to his or her 
administration, including those relating to continuity of operations, 
emergency resource management, associated Federal claimant procedures, 
facilities protection and warfare effects monitoring and reporting, 
research, stockpiling, financial aid, and training.
    (11) Enter into inter- and intradepartmental reimbursable agreements 
other than with the head of another department or agency. This authority 
may be redelegated only to Office Directors, Regional Directors, 
District Commanders or other comparable levels and Contracting Officers.

[[Page 31]]

    (12) Determine the existence and amount of indebtedness and the 
method of collecting repayments from employees within their respective 
administrations and collect repayments accordingly, as provided by 5 
U.S.C. 5514. Redelegation of this authority may be made only to the 
principal officials responsible for financial management or such 
officials' principal assistants.
    (13) Waive claims of the United States arising out of an erroneous 
payment to an employee of the Operating Administration of pay or 
allowances, or travel, transportation, or relocation expenses and 
allowances, and deny requests for waiver of such claims, as authorized 
by 5 U.S.C. 5584 and the OMB memorandum, ``Determination with Respect to 
Transfer of Functions Pursuant to Public Law 104-316'' (December 17, 
1996). But for claims arising from erroneous payments to current 
employees, this delegation of authority is limited to claims greater 
than $500. For claims arising from erroneous payments to former 
employees, this delegation of authority is not limited by claim amount. 
Redelegation of this authority may be made only to the principal 
officials responsible for financial management or such officials' 
principal assistants.
    (14) Settle and pay claims by employees of the Operating 
Administration for personal property losses as provided by 31 U.S.C. 
3721 (Claims of personnel of agencies and the District of Columbia 
government for personal property damage or loss). This authority may be 
redelegated only to Office Directors, Regional Directors, or other 
comparable levels and to those individuals that report to the above 
officials.
    (15) Exercise the authority of the Secretary to resolve informal 
allegations of discrimination arising in or relating to their respective 
organizations through Equal Employment Opportunity counseling or the 
Alternative Dispute Resolution process and to develop and implement 
affirmative action and diversity plans within their respective 
organizations. With regard to external civil rights programs, each 
Administrator exercises authority pursuant to statutes, regulations, 
Executive Orders, or delegations in this subpart to carry out these 
programs, under the guidance of the Director of the Departmental Office 
of Civil Rights, including conducting compliance reviews and other 
activities relating to the enforcement of these statutes, regulations, 
and Executive Orders.
    (16) Review and approve for payment any voucher for $25 or less the 
authority for payment of which is questioned by a certifying or 
disbursing officer.
    (17) Authorize and approve official non-foreign travel and 
transportation for themselves, their subordinates, and others performing 
services for, or in cooperation with, their Operating Administrations.
    (18) Exercise the authority of the Secretary to make certifications, 
findings and determinations under the Regulatory Flexibility Act (5 
U.S.C. 601, et seq.) with regard to any rulemaking document for which 
issuance authority is delegated by other sections in this part. This 
authority may be redelegated to those officials to whom document 
issuance authority has been delegated.
    (19) Carry out the functions vested in the Secretary by 15 U.S.C. 
3710(a), which authorizes agencies to permit their laboratories to enter 
into cooperative research and development agreements.
    (20) [Reserved]
    (21) Exercise the Secretary's authority under 31 U.S.C. 3711 to 
collect, compromise, suspend collection action on, or terminate claims 
of the United States which are referred to, or arise out of the 
activities of, the Operating Administration, subject to the limits on 
that authority imposed by 31 U.S.C. 3711 and the Federal Claims 
Collection Standards, 31 CFR chapter IX.
    (22) Exercise the Secretary's authority under 28 U.S.C. 2672 and 28 
CFR part 14, related to the administrative disposition of federal tort 
claims, for claims involving the Operating Administration. The 
Administrator may request the approval of the Attorney General to 
adjust, compromise, and settle any such claim if the amount of the 
adjustment, compromise, or award exceeds $100,000, but only after the 
General Counsel concurs with the request. If the Administrator believes 
that a pending claim presents a novel

[[Page 32]]

question of law or of policy, he or she shall coordinate with the 
General Counsel to obtain the advice of the Assistant Attorney General 
in charge of the Civil Division. If the Administrator settles a claim 
for an amount greater than $50,000, the Administrator shall prepare a 
memorandum fully explaining the basis for the action taken and 
coordinate with the General Counsel before sending a copy of the 
memorandum to the Director, Federal Torts Claims Act Staff, Torts Branch 
of the Civil Division, U.S. Department of Justice.
    (23) Enter into memoranda of agreement with the Occupational Safety 
and Health Administration (OSHA) in regard to setting and enforcing 
occupational safety or health standards and whistleblower protection for 
employees in DOT-regulated industries. The General Counsel shall concur 
in each memorandum of understanding with OSHA prior to its execution by 
the Administrator of the Operating Administration concerned.
    (24) Enter into memoranda of agreement with the Mine Safety Health 
Administration (MSHA) in regard to setting and enforcing safety 
standards for employees in DOT-regulated industries while on mine 
property. The General Counsel shall concur in each memorandum of 
agreement with MSHA prior to its execution by the Administrator of the 
Operating Administration concerned.
    (25) Exercise the authority vested in the Secretary by Section 329A 
of the Department of Transportation and Related Agencies Appropriations 
Act, 1995, Public Law 103-331, 329A, 108 Stat. 2471, 2493 (September 30, 
1994), to enter into grants, cooperative agreements, and other 
transactions with any person, agency, or instrumentality of the United 
States, any unit of state or local government, any educational 
institution, and any other entity in execution of the Technology 
Reinvestment Project authorized under the Defense Conversion, 
Reinvestment, and Transition Assistance Act of 1992, Public Law 102-484, 
106 Stat. 2658 (October 23, 1992), and related legislation.
    (26) Carry out the functions vested in the Secretary by 49 U.S.C. 
40119(b), as implemented by 49 CFR part 15, in coordination with the 
Office of the General Counsel and the Office of Intelligence, Security 
and Emergency Response, relating to the determination that information 
is Sensitive Security Information within their respective organizations.
    (27) Exercise the authority vested in the Secretary by 49 U.S.C. 
326(a) and 31 U.S.C. 1353 to accept, subject to the concurrence of the 
Operating Administration's Deputy Ethics Official, the following: Gifts 
of property (other than real property) not exceeding $1,000 in value, 
gifts of services (in carrying out aviation duties and powers) not 
exceeding $1,000 in value, and reimbursement of travel expenses from 
non-federal sources not exceeding $3,000. Acceptance of gifts or travel 
reimbursement that exceed these limits in value or are otherwise 
significant may only take place with the additional concurrence of the 
General Counsel. This delegation extends only to the acceptance of gifts 
or travel expenses and does not authorize the solicitation of gifts, 
which is reserved to the Secretary at Sec.  1.21.
    (28) Exercise the authority vested in the Secretary by the Federal 
Civil Penalties Inflation Adjustment Act of 1990 (Pub. L. 101-410, 104 
Stat. 890), as amended by the Debt Collection Improvement Act of 1996 
(Pub. L. 104-134, 110 Stat. 1321), to promulgate rules that adjust civil 
penalties.
    (29) Carry out the functions vested in the Secretary to implement 
the Uniform Relocation Assistance and Real Property Acquisition Act of 
1970 (Uniform Act), 42 U.S.C. Chapter 61, with respect to programs 
administered by their respective Operating Administrations. Each 
Operating Administration may prescribe additional Uniform Act guidance 
that is appropriate to those particular programs, provided that such 
additional guidance must be consistent with the Uniform Act and 49 CFR 
part 24. The lead agency for Uniform Act matters is the Federal Highway 
Administration (see Sec.  1.85 and 49 CFR part 24).



Sec.  1.81a  Redelegation by all Administrators.

    Except as otherwise specifically provided in this part, each 
Administrator

[[Page 33]]

may redelegate and authorize successive redelegations of authority 
within the organization under that official's jurisdiction.



Sec.  1.82  The Federal Aviation Administration.

    Is responsible for:
    (a) Promulgating and enforcing regulations on all safety matters 
relating to the operation of airports, the manufacture, operation, and 
maintenance of aircraft, and the efficiency of the National Airspace 
System;
    (b) Planning and supporting the development of an integrated 
national system of airports, with due consideration of safety, capacity, 
efficiency, environmental compatibility and sustainability;
    (c) Administering federal financial assistance programs for airports 
including airport grants-in-aid;
    (d) Preserving and enhancing the safety and efficiency of the 
Nation's air transportation system by implementing NextGen and other 
technologies, as appropriate;
    (e) Registering aircraft and recording rights in aircraft;
    (f) Developing, modifying, testing, and evaluating systems, 
procedures, facilities, and devices needed for the safe and efficient 
navigation and traffic control of aircraft;
    (h) Locating, constructing or installing, maintaining and operating 
Federal aids to air navigation, wherever necessary;
    (i) Developing air traffic regulations, and administering air 
navigation services for control of civil and military air operations 
within U.S. airspace, as well as administering such air navigation 
services as the FAA has accepted responsibility for providing in 
international airspace and the airspace of foreign countries;
    (j) Promoting aviation safety and efficiency through technical 
aviation assistance to foreign aviation authorities;
    (k) Developing strategies to improve runway safety at all commercial 
service airports;
    (l) Administering the Continuous Lower Energy, Emissions and Noise 
program, improving connections to surface transportation, and other 
efforts to increase the environmental sustainability of the Nation's air 
transportation systems;
    (m) Conducting an effective airport technology research program to 
improve airport safety, efficiency, and sustainability;
    (n) Exercising the final authority for carrying out all functions, 
powers, and duties of the Administration in accordance with 49 U.S.C. 
106(f) and adjudication in accordance with 49 U.S.C. 40110(d) and that 
such authorities supersede any conflicting provisions elsewhere in this 
part.
    (o) Promoting and encouraging U.S. leadership in commercial space 
activities, and promulgating and enforcing regulations on safety matters 
relating to commercial space transportation.



Sec.  1.83  Delegations to the Federal Aviation Administrator.

    The Federal Aviation Administrator is delegated authority to:
    (a) Carry out the following functions vested in the Secretary by 49 
U.S.C. Subtitle VII (Aviation Programs):
    (1) Sections 40103(a)(2), relating to the consultation with the 
Architectural and Transportation Barriers Compliance Board before 
prescribing regulations or procedures that will have a significant 
impact on accessibility of commercial airports or commercial air 
transportation for individuals with disabilities; 40109(c), but only as 
it relates to the regulation of 49 U.S.C. 46301(b) (smoke alarm device 
penalties), and 40109(e), relating to maximum flying hours 40113(a) as 
it relates to the functions vested in the Secretary and delegated in 
this section; 40114, relating to reports and records requirements; 
40115, relating to withholding information from public disclosure; 
40116, relating to the prohibition on State taxation as the prohibition 
may affect an airport sponsor's grant assurances; 40117, relating to 
passenger facility charges; 40119(b), relating to the issuance of 
regulations on disclosure of information obtained or developed in 
ensuring security; and 40127(b) of chapter 401, relating to prohibition 
on discrimination by private airports;

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    (2) Section 41723 of subchapter I of chapter 417, relating to notice 
concerning aircraft assembly;
    (3) Section 44102(b) of chapter 441, relating to defining the term 
``based and primarily used in the United States'';
    (4) Chapter 443, relating to insurance;
    (5) Chapter 445, relating to facilities, personnel, and research, 
except section 44502(a)(3) as it relates to authorizing a department, 
agency, or instrumentality of the United States Government to carry out 
any duty or power under subsection 44502(a) with the consent of the head 
of the department, agency, or instrumentality;
    (6) Chapter 447, relating to safety regulation;
    (7) Chapter 451, relating to alcohol and controlled substances 
testing;
    (8) Subpart IV of Part A of 49 U.S.C. Subtitle VII (chapters 461-
465) relating to the Secretary's authority to enforce and impose 
penalties under sections of Subtitle VII that have been delegated to the 
Federal Aviation Administrator in this section;
    (9) Part B of 49 U.S.C. Subtitle VII (chapters 471-475) relating to 
airport development and noise, except 49 U.S.C. 47129(a);
    (10) Part C of 49 U.S.C. Subtitle VII (chapters 481-483) relating to 
financing; and
    (11) Part E of 49 U.S.C. Subtitle VII (chapter 501) relating to Buy-
American Preferences.
    (b) Carry out the functions vested in the Secretary by chapters 509 
and 511 (commercial space) of title 51, U.S.C. and coordinate with the 
Assistant Secretary for Aviation and International Affairs regarding 
those functions related to the promotion of the aerospace industry.
    (c) Carry out the functions vested in the Secretary by part B of 
title II of the Clean Air Act, as amended (Pub. L. 91-604, sec. 11, 84 
Stat. 1703), and by 40 CFR part 87 as it relates to exemptions from 
aircraft air pollution standards.
    (d)(1) Except as delegated to the Under Secretary of Transportation 
for Policy by Sec.  1.25, carry out the functions vested in the 
Secretary by 49 U.S.C. 5121(a), (b), (c), and (d), 5122, 5123, and 5124, 
relating to the transportation or shipment of hazardous materials by 
air.
    (2) Carry out the functions vested in the Secretary by 49 U.S.C. 
5114, relating to the establishment of procedures for monitoring and 
enforcing regulations with respect to the transportation of radioactive 
materials on passenger-carrying aircraft.
    (3) Participate, with the Administrator of the Pipeline and 
Hazardous Materials Safety Administration, in the Dangerous Goods Panel 
at the International Civil Aviation Organization, under the authority 
vested in the Secretary by 49 U.S.C. 5120.
    (e) Serve, or designate a representative to serve, as Vice Chairman 
and alternate Department of Transportation member of the Interagency 
Group on International Aviation (IGIA) pursuant to the interagency 
agreement of December 9, 1960, and Executive Order 11382, and provide 
for the administrative operation of the IGIA Secretariat.
    (f) Carry out the functions assigned to the Secretary by Executive 
Order 12465 relating to commercial expendable launch vehicle activities.
    (g) Carry out the functions vested in the Secretary by the National 
Aeronautics and Space Administration Authorization Act, Fiscal Year 1993 
(Pub. L. 102-588, 106 Stat 5119, November 4, 1992).



Sec.  1.84  The Federal Highway Administration.

    Is responsible for:
    (a) Improving mobility on our Nation's highways through national 
leadership, innovation, and program delivery.
    (b) Developing safety strategies using a data-driven, systematic 
approach to address safety for motorists, bicyclists, and pedestrians 
from engineering, education, enforcement, and emergency medical services 
perspectives and coordinating with FMCSA and NHTSA as appropriate.
    (c) Planning, in cooperation with the States, the nation's highway 
system.
    (d) Improving, in cooperation with the States (via the provision of 
grants), infrastructure condition, safety, mobility and freight movement 
roads on the National Highway System, including the Interstate System 
and to other federal-aid roads and other surface transportation 
infrastructure.

[[Page 35]]

    (e) Identifying and deploying innovation aimed at shortening project 
delivery, enhancing the safety of our roadways, and protecting the 
environment.
    (f) Surveying and constructing Federal lands transportation 
facilities, Federal lands access transportation facilities, tribal 
transportation facilities, defense highways and access roads, and 
parkways and roads in national parks and other federally-administered 
areas.
    (g) Developing and administering uniform State standards for highway 
safety programs with respect to identification and surveillance of crash 
locations; highway design, construction, and maintenance, including 
context sensitive solutions, highway-related aspects of pedestrian 
safety, and traffic control devices.
    (h) Administering the Department's National Bridge Inspection 
Standards and the National Tunnel Inspection Standards to ensure the 
Nation has safe, well-maintained bridges and tunnels for use by the 
traveling public.
    (i) In coordination with NHTSA, RITA, and FMCSA, conducting vehicle-
to-vehicle and vehicle-to-infrastructure research.
    (j) Managing TIFIA funds, 23 U.S.C. 601-609, in conjunction with the 
TIFIA Joint Program Office, including managing accounting and budgeting 
activities, and procuring any necessary financial or technical support 
services for the TIFIA program.
    (k) Maximizing the positive impacts on the U.S. economy by 
encouraging domestic manufacturing on highway projects through the 
enforcement of Buy America provisions.



Sec.  1.85  Delegations to the Federal Highway Administrator.

    (a) The Federal Highway Administrator is delegated authority to 
administer the following provisions of title 23, U.S.C. (Highways):
    (1) Chapter 1, Federal-Aid Highways, except for:
    (i) Section 142 (as it relates to matters within the primary 
responsibility of the Federal Transit Administrator);
    (ii) The following sections as they relate to matters within the 
primary responsibility of the National Highway Traffic Safety 
Administration: 153, 154, 158, 161, 163, and 164; and
    (iii) Section 167(f) (National Freight Strategic Plan).
    (2) Chapter 2, Other Highways, except for section 205.
    (3) Chapter 3, General Provisions (as it relates to matters within 
the primary responsibility of the Federal Highway Administration), 
except for section 322.
    (4) Section 409 of chapter 4, Highway Safety.
    (5) Chapter 5, Research, Technology, and Education, except for 
section 508.
    (6) Chapter 6, Infrastructure Finance, subject to the limitations 
set forth in Sec. Sec.  1.33 (Assistant Secretary for Budget and 
Programs) and 1.21 (reservation to the Secretary of final approval of 
TIFIA credit assistance applications).
    (b) The Federal Highway Administrator is delegated authority to 
administer the following provisions of title 49, U.S.C. 
(Transportation):
    (1) Section 20134(a) with respect to the laws administered by the 
Federal Highway Administrator pertaining to highway safety and highway 
construction; and
    (2) Sections 31111 and 31112 (as it relates to matters within the 
primary responsibility of the Federal Highway Administration).
    (3) Section 31314 (as it relates to matters within the primary 
responsibility of the Federal Highway Administration).
    (c) The Federal Highway Administrator is delegated authority to 
administer the following laws relating generally to highways:
    (1) Section 502(c) of the General Bridge Act of 1946, as amended, 
Public Law 79-601, tit. V, 60 Stat. 847, [33 U.S.C. 525(c)].
    (2) Reorganization Plan No. 7 of 1949 (63 Stat. 1070).
    (3) The Federal-Aid Highway Act of 1954, as amended (Pub. L. 83-350, 
68 Stat. 70).
    (4) The Federal-Aid Highway Act of 1956, as amended (Pub. L. 84-627, 
tit. I, 70 Stat. 374).
    (5) The Highway Revenue Act of 1956, as amended (Pub. L. 84-627, 
tit. II, 70 Stat. 374, 387).
    (6) The Alaska Omnibus Act, as amended (Pub. L. 86-70, 73 Stat. 
141).
    (7) The Act of September 26, 1961, as amended (Pub. L. 87-307, 75 
Stat. 670).

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    (8) The Act of April 27, 1962 (Pub. L. 87-441, 76 Stat. 59).
    (9) The Federal-Aid Highway Act of 1962, as amended (Pub. L. 87-866, 
76 Stat. 1145).
    (10) The Joint Resolution of August 28, 1965, as amended (Pub. L. 
89-139, 79 Stat. 578).
    (11) The Federal-Aid Highway Act of 1966, as amended (Pub. L. 889-
574, 80 Stat. 766).
    (12) The Federal-Aid Highway Act of 1968, as amended (Pub. L. 90-
495, 82 Stat. 815).
    (13) The Federal-Aid Highway Act of 1970, as amended (except section 
118) (Pub. L. 91-605, 84 Stat. 1713).
    (14) Sections 103, 104, 111(b), 128(b), 131, 135, 136, 141, 147, 
149, 154, 158 through 161, 163, 203, 206, 401, and 402 of the Federal-
Aid Highway Act of 1973, as amended (Pub. L. 93-87, 87 Stat. 250; Pub. 
L. 93-643, 88 Stat. 2281).
    (15) Sections 102(b) (except subparagraph (2)) and (c); 105 (b)(1) 
and (c); 141; 146; 147; and 152 of the Federal-Aid Highway Act of 1976 
(Pub. L. 94-280, 90 Stat. 425).
    (16) The Highway Beautification Act of 1965, as amended (Pub. L. 89-
285, 79 Stat. 1028, 23 U.S.C. 131 et seq., notes).
    (17) The Federal-Aid Highway Act of 1982 (Pub. L. 97-327, 96 Stat. 
1611), except section 6 as it relates to matters within the primary 
responsibility of the Federal Transit Administrator.
    (18) The Surface Transportation Assistance Act of 1982, as amended, 
(Pub. L. 97-424, 96 Stat. 2097) except:
    (i) Sections 165 and 531 as they relate to matters within the 
primary responsibility of the Federal Transit Administrator;
    (ii) Sections 105(f), 413; 414(b)(2); 421, 426, and Title III; and
    (iii) Section 414(b)(1), unless with the concurrence of the National 
Highway Traffic Safety Administrator.
    (19) Sections 103(e), 105(a) through (g), 106(a), and (b), 110(b), 
114(d), 117(f), 120(c) and (d), 123(g) and (i), 133(f), 134, 136, 137, 
139 through 145, 146(b), 147(c), 149(a) through (f), (h), (i), (k), 151 
through 157, 164, and 208 of the Surface Transportation and Uniform 
Relocation Assistance Act of 1987 (Pub. L. 100-17, 101 Stat. 132).
    (20) Sections 105, 107(c) through (e), 123(a) and (b), 124(c), 
126(d) through (g), 138(c), 142, 144, 147 through 154, 167, and 171, 
Title IV, as amended (as it relates to matters within the primary 
responsibility of the Federal Highway Administrator), and sections 502-
504 of Title V of the Surface Transportation Assistance Act of 1978 
(Pub. L. 95-599, 92 Stat. 2689).
    (21) Sections 201 through 205, 327 through 336, 339, 340, 349, 352, 
353, and 408 of the National Highway System Designation Act of 1995 
(Pub. L. 104-59, 109 Stat. 568).
    (22) Sections 1002(e), 1006(h), 1009(c), 1012(b) and (d) through 
(f), 1015, 1016(g), 1017(c), 1021(c) and (d), 1022(c), 1023(f) through 
(g), 1032(d), 1038 through 1041, 1044, 1046(d), 1047, 1051, 1057 through 
1060, 1072, 1073, 1105, and 6016 of the Intermodal Surface 
Transportation Efficiency Act of 1991 (Pub. L. 102-240, 105 Stat. 1914).
    (23) Sections 1108(f) and (g) and 1224 of the Transportation Equity 
Act for the 21st Century (Pub. L. 105-178, 112 Stat. 107).
    (24) Sections 1101(a), 1102, 1109(f), 1111(b)(4), 1112, 1115(c), 
1116(a) and (b), 1117, 1119(n), 1120(c), 1201, 1301, 1302, 1303, 1304, 
1305, 1306, 1308, 1310, 1404, 1408, 1409(a) and (b), 1410, 1411, 1502, 
1604, 1803, 1907, 1908, 1910, 1911, 1916, 1917, 1918, 1923, 1928, 1934, 
1935, 1937, 1939, 1940, 1941, 1943, 1944, 1945, 1948, 1949, 1950, 1952, 
1957, 1959, 1962, 1964, 4404 (as it relates to matters within the 
primary responsibility of the Federal Highway Administrator), 5101(b), 
5202(b)(3)(B), (c), and (d), 5203(e) and (f), 5204(g) and (i), 5304, 
5305, 5306, 5307, 5308, 5309, 5502, 5504, 5508, 5511, 5512, 5513(b), 
(f), (k), and (m) (as (m) relates to (b), (f), and (k)), 5514, 6009(b) 
(as they relate to matters within the primary responsibility of the 
Federal Highway Administrator), 6017, 6018, 10210, and 10212 of the 
Safe, Accountable, Flexible, Efficient Transportation Equity Act: A 
Legacy for Users (Pub. L. 109-59, 119 Stat. 1144).
    (25) Sections 1101(a), 1102, 1106(b), 1112(b), 1113(c), 1116, 1123, 
1201(b), 1315 (as it relates to matters within the primary 
responsibility of the Federal Highway Administration), 1316 (as it 
relates to matters within the primary responsibility of the Federal 
Highway Administration), 1317 (as it relates to

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matters within the primary responsibility of the Federal Highway 
Administration), 1318(a) and (b) (as it relates to matters within the 
primary responsibility of the Federal Highway Administration), 1323 (a) 
and (b), 1401(b), (c) and (d), 1405, 1503(c), 1512(b), 1519(a), 1520, 
1522, 1523, 1524, 1525, 1526, 1527 (as it relates to matters within the 
primary responsibility of the Federal Highway Administration), 1528, 
1529, 1530 (as it relates to matters within the primary responsibility 
of the Federal Highway Administration), 1533, 1534, 1535, 32801, 32802, 
and 51001 of the Moving Ahead for Progress in the 21st Century Act (Pub. 
L. 112-141, 126 Stat. 405).
    (d) The Federal Highway Administrator is delegated authority to:
    (1) Carry out the functions vested in the Secretary of 
Transportation by section 601 of the Pipeline Safety Act of 1992 (Pub. 
L. 102-508, 106 Stat. 3289) relating to construction of the Page Avenue 
Extension Project in Missouri.
    (2) Carry out the functions of the Secretary under the Appalachian 
Regional Development Act of 1965, 40 U.S.C. Subtitle IV.
    (3) Carry out the Act of September 21, 1966, Public Law 89-599, 
relating to certain approvals concerned with a compact between the 
States of Missouri and Kansas.
    (4) Carry out the functions vested in the Secretary by section 5 (as 
it relates to bridges, other than railroad bridges, not over navigable 
waters), and section 8(a) (as it relates to all bridges other than 
railroad bridges) of the International Bridge Act of 1972 (Pub. L. 92-
434, 86 Stat. 731) [33 U.S.C. 535c and 535e(a)].
    (5) Carry out the Highway Safety Act of 1966, as amended (Pub. L. 
89-564, 80 Stat. 731) for highway safety programs, research, and 
development relating to highway design, construction and maintenance, 
traffic control devices, identification and surveillance of crash 
locations, and highway-related aspects of pedestrian safety.
    (6) Exercise the authority vested in the Secretary by 49 U.S.C. 
20134(a) with respect to the laws administered by the Federal Highway 
Administrator pertaining to highway safety and highway construction
    (7) Prescribe regulations, as necessary, at part 24 of this title, 
to implement the Uniform Act, 42 U.S.C. Chapter 61, and to act as the 
lead agency in carrying out all other functions vested in the Secretary 
by the Uniform Act, in coordination with the Under Secretary.
    (8) Exercise the authority vested in the Secretary by sections 101, 
118, 120(b), 123 and 124 of the Federal-Aid Highway Amendments of 1974 
(Pub. L. 93-643, January 4, 1975, 88 Stat. 2281).
    (9) Carry out the functions vested in the Secretary of 
Transportation by section 114 of Part C of the Paperwork Reduction 
Reauthorization Act of 1986 (contained in the Act Making Continuing 
Appropriations for Fiscal Year 1987 and for Other Purposes, Public Law 
99-591, 100 Stat. 3341, 2241-349), relating to construction of 
Interstate Highway H-3 in Hawaii.
    (10) Carry out the functions vested in the Secretary by Public Law 
98-229, 98 Stat. 55, insofar as it relates to apportioning certain funds 
for construction of the Interstate Highway System in Fiscal Year 1985, 
apportioning certain funds for Interstate substitute highway projects, 
and increasing amounts available for emergency highway relief.
    (11) Carry out all of the functions vested in the Secretary under 
section 324 of the Fiscal Year 1986 Department of Transportation 
Appropriations Act (Pub. L. 99-190, 99 Stat. 1288), notwithstanding the 
reservation of authority under Sec.  1.21.
    (12) Carry out the functions vested in the Secretary of 
Transportation by section 505 of the Railroad Revitalization and 
Regulatory Reform Act of 1976, as amended, (Pub. L. 94-210, 90 Stat. 31) 
relating to the Alameda Corridor Project in consultation with the 
Federal Railroad Administrator.
    (13) Act as the lead DOT agency in matters relating to the National 
Environmental Policy Act of 1969, Public Law 91-190, 83 Stat. 852 [42 
U.S.C. 4321 et seq.] pertinent to the authority vested in the Secretary 
to establish, operate, and manage the Nationwide Differential Global 
Positioning System (NDGPS) by section 346 of the Department of 
Transportation and Related Agencies Appropriations Act, 1998 (Pub. L. 
105-66, 111 Stat. 1425).

[[Page 38]]

    (14) Exercise the responsibilities of the Secretary under 49 U.S.C. 
309 (high speed ground transportation).
    (15) Carry out the functions vested in the Secretary by section 
201(4)(d) and (e) of the Alaska National Interest Lands Conservation 
Act, as amended (Pub. L. 96-487, 94 Stat. 2377) [16 U.S.C. 410hh(4)(d) 
and (e)].



Sec.  1.86  The Federal Motor Carrier Safety Administration.

    Is responsible for:
    (a) Managing program and regulatory activities, including 
administering laws and promulgating and enforcing regulations on safety 
matters relating to motor carrier safety;
    (b) Carrying out motor carrier registration and authority to 
regulate household goods transportation;
    (c) Developing strategies for improving commercial motor vehicle, 
operator, and carrier safety and administering grants to implement these 
strategies;
    (d) Inspecting records and equipment of commercial motor carriers, 
and investigating accidents and reporting violations of motor carrier 
safety regulations;
    (e) Carrying out research, development, and technology transfer 
activities to promote safety of operation and equipment of motor 
vehicles for the motor carrier transportation program; and
    (f) Carrying out an effective communications and outreach program 
which includes providing relevant safety data to the public.



Sec.  1.87  Delegations to the Federal Motor Carrier Safety Administrator.

    The Federal Motor Carrier Safety Administrator is delegated 
authority to:
    (a) Carry out the following functions and exercise the authority 
vested in the Secretary by 49 U.S.C., Subtitle IV, part B:
    (1) Chapter 131, relating to general provisions on transportation 
policy;
    (2) Chapter 133, relating to administrative provisions;
    (3) Chapter 135, relating to jurisdiction;
    (4) Sections 13704 and 13707 of chapter 137, relating to rates, 
routes, and services;
    (5) Chapter 139, relating to registration and financial 
responsibility requirements, except section 13907(d)(2);
    (6) Chapter 141, relating to operations of motor carriers;
    (7) Sections 14501, 14502, and 14504a relating to Federal-State 
relations, and section 14506 relating to identification of vehicles.
    (8) Sections 14701 through 14705, 14707, 14708, 14710, and 14711 of 
chapter 147, relating to enforcement remedies, investigations and motor 
carrier liability; and
    (9) Sections 14901 through 14913, 14915, and 14916 of chapter 149 
relating to civil and criminal penalties for violations of 49 U.S.C. 
subtitle IV, part B.
    (b) Carry out the functions vested in the Secretary by sections 104 
and 204 of the ICC Termination Act of 1995, Public Law 104-88, 109 Stat. 
803, relating to self-insurance rules and a savings clause.
    (c) Carry out the functions vested in the Secretary by 42 U.S.C. 
4917, relating to procedures for the inspection, surveillance and 
measurement of commercial motor vehicles for compliance with interstate 
motor carrier noise emission standards and related enforcement 
activities including the promulgation of necessary regulations.
    (d) Carry out the following functions and exercise the authority 
vested in the Secretary by chapter 51 of title 49, U.S.C.:
    (1) Except as delegated to the Under Secretary of Transportation for 
Policy by Sec.  1.25, carry out the functions vested in the Secretary by 
49 U.S.C. 5121(a), (b), (c), and (d), 5122, 5123, and 5124, relating to 
the transportation or shipment of hazardous materials by highway.
    (2) Carry out the functions vested in the Secretary by 49 U.S.C. 
5105(e), relating to inspections of motor vehicles carrying hazardous 
material; 49 U.S.C. 5109, relating to motor carrier safety permits, 
except subsection (f); 49 U.S.C. 5112, relating to highway routing of 
hazardous materials; 49 U.S.C. 5113, relating to unsatisfactory safety 
ratings of motor carriers; 49 U.S.C. 5119, relating to uniform forms and 
procedures;

[[Page 39]]

and 49 U.S.C. 5125(a) and (c)-(f), relating to preemption determinations 
or waivers of preemption of hazardous materials highway routing 
requirements.
    (e) Carry out the functions vested in the Secretary by:
    (1) Chapter 313 of 49, U.S.C., relating to commercial motor vehicle 
operators; and
    (2) Section 4123(c), (d) and (e) of SAFETEA-LU relating to grants, 
funding, and contract authority and availability, respectively, for 
commercial driver's license information system modernization.
    (f) Carry out the functions vested in the Secretary by subchapters 
I, III, and IV of chapter 311, title 49, U.S.C., and 49 U.S.C. 31111, 
relating to commercial motor vehicle programs, safety regulation, and 
international activities, except that the authority to promulgate safety 
standards for commercial motor vehicles and equipment subsequent to 
initial manufacture is limited to standards that are not based upon and 
similar to a Federal Motor Vehicle Safety Standard promulgated under 
chapter 301 of title 49, U.S.C.
    (g) Carry out the functions vested in the Secretary by 49 U.S.C. 
5701 relating to food transportation inspections of commercial motor 
vehicles.
    (h) Carry out the functions and exercise the authority delegated to 
the Secretary in section 2(d)(2) of Executive Order 12777, as amended, 
with respect to highway transportation, relating to the approval of 
means to ensure the availability of private personnel and equipment to 
remove, to the maximum extent practicable, a worst case discharge, the 
review and approval of response plans, and the authorization of motor 
carriers, subject to the Federal Water Pollution Control Act, Pub. L. 
87-88, as amended [33 U.S.C. 1321], to operate without approved response 
plans.
    (i) Carry out chapter 315 of title 49, U.S.C., relating to motor 
carrier safety.
    (j) Carry out 49 U.S.C. 502, 503, 504, 506, and 523 to the extent 
they relate to motor carriers, motor carriers of migrant workers, and 
motor private carriers; 49 U.S.C. 507 to the extent it relates to motor 
carriers, motor carries of migrant workers, motor private carriers, or 
freight forwarders; and 49 U.S.C. 505, 508, 521(b), and 525.
    (k) Carry out the functions and exercise the authority vested in the 
Secretary by 23 U.S.C. 502(a)(1)(A).
    (l) Carry out the functions vested in the Secretary by the following 
sections of SAFETEA-LU:
    (1) Section 4105(b)(1) relating to the study concerning predatory 
tow truck operations;
    (2) Section 4126, relating to the commercial vehicle information 
systems and networks deployment program;
    (3) Section 4127, relating to outreach and education;
    (4) Section 4128, relating to grants under the safety data 
improvement program;
    (5) Section 4130-4133, amending section 229 of the Motor Carrier 
Safety Improvement Act of 1999 (49 U.S.C. 31136 note) relating to the 
operators of vehicles transporting agricultural commodities and farm 
supplies, and hours of service for miscellaneous vehicle operators;
    (6) Section 4134 (49 U.S.C. 31301 note), relating to the grant 
program for persons to train operators of commercial motor vehicles;
    (7) [Reserved]
    (8) Section 4136 relating to interstate vans;
    (9) Section 4138 relating to high risk carrier compliance (49 U.S.C. 
31144 note);
    (10) Section 4139(a)(1), relating to the training of and outreach to 
State personnel; section (b)(1) relating to a review of Canadian and 
Mexican compliance with Federal motor vehicles safety standards; and the 
first sentence of section (b)(2) relating to the report concerning the 
findings and conclusions of the review required by section (b)(1) (see 
49 U.S.C. 31100 note);
    (11) Section 4143, granting authority to stop commercial motor 
vehicles, 18 U.S.C. 3064;
    (12) Section 4144, relating to a motor carrier safety advisory 
committee;
    (13) [Reserved]
    (14) Section 4147, relating to emergency conditions requiring 
immediate response (amending section 229 of the Motor Carrier Safety 
Improvement Act of 1999 (49 U.S.C. 31136 note);

[[Page 40]]

    (15) Section 4213, relating to the establishment of a working group 
for the development of practices and procedures to enhance Federal-State 
relations (49 U.S.C. 14710 note);
    (16) Section 4214, relating to the establishment of a system for 
collecting consumer complaint information and issuing regulations 
related to reporting requirements under the system (49 U.S.C. 14701 
note); and
    (17) Section 4308, granting authority to adopt regulations to carry 
out SAFETEA-LU, Title IV, subtitle C (49 U.S.C. 13902 note).
    (m) Carry out the functions vested in the Secretary by the following 
sections of the Moving Ahead for Progress in the 21st Century Act (Pub. 
L. 112-141, 126 Stat. 405):
    (1) Section 32101(b) concerning proficiency examination (49 U.S.C. 
13902 note).
    (2) Section 32101(c) concerning conforming amendments to proficiency 
examinations (49 U.S.C. 31144 note).
    (3) Section 32101(d) concerning agricultural and farm transportation 
exemption (49 U.S.C. 31136 note).
    (4) Section 32104 concerning a study of financial responsibility 
requirements (49 U.S.C. 13903 note).
    (5) Section 32206 concerning a rental truck accident study.
    (6) Section 32301(a) requiring an hours of service study.
    (7) Section 32302(c)(2) regarding the establishment of state 
licensing agency oversight (49 U.S.C. 31149 note).
    (8) Section 32303(b) relating to the establishment of a driver 
record notification system (49 U.S.C. 31304 note).
    (9) Section 32303(c) relating to a plan for national notification 
system.
    (10) Section 32308 regarding a study, plan, report and 
implementation of accelerated veteran's licensing procedures (49 U.S.C. 
31301 note).
    (11) Section 32603(i) relating to the administration of grant 
programs (49 U.S.C. 31100).
    (12) Section 32605 related to a report on the commercial vehicle 
information system and networks.
    (12) Sections 32702, 32707(b), 32708, 32709, 32710, and 32711 
related to the Motorcoach Enhanced Safety Act of 2012 (49 U.S.C. 31136 
note).
    (13) Section 32918(b) relating to broker and forwarder financial 
responsibility rulemaking requirement (49 U.S.C. 13906 note).
    (14) Section 32934 related to exemptions from requirements for 
covered farm vehicles (49 U.S.C. 31136 note).



Sec.  1.88  The Federal Railroad Administration.

    Is responsible for:
    (a) Regulating safety functions pertaining to railroads;
    (b) Conducting research and development activity in support of safer 
and more efficient rail transportation;
    (c) Investigating and issuing reports concerning collisions, 
derailments, and other railroad accidents resulting in serious injury to 
persons or to the property of a railroad;
    (d) Developing safety strategies to combat the causes of collisions, 
derailments, and other railroad accidents, as well as to reduce overall 
risk in the Nation's rail systems;
    (e) Promoting and strengthening the national rail system, including 
freight rail and high speed and higher performing intercity passenger 
rail.
    (f) Providing financial assistance, including grants, loans and loan 
guarantees, for rail freight and intermodal development, as well as 
high-speed and intercity passenger rail development;
    (g) Maximizing the positive impacts on the U.S. economy by 
encouraging domestic manufacturing on rail projects through the 
enforcement of Buy America provisions; and
    (h) Strengthening local communities by supporting station-area 
development and strong connections among rail passenger service, 
intercity bus, local transit, bicycle/pedestrian, and airport 
facilities.



Sec.  1.89  Delegations to the Federal Railroad Administrator.

    The Federal Railroad Administrator is delegated authority to:
    (a) Carry out the functions and exercise the authority vested in the 
Secretary by 49 U.S.C. Subtitle V, Part A (Safety, chapter 201 et seq.), 
Part B (Assistance, chapter 221 et seq.), Part C (Passenger 
Transportation, chapter 241

[[Page 41]]

et seq.), Part D (High-speed Rail, chapter 261), and section 28101 of 
Part E, relating to the law enforcement authority of railroad police 
officers; except 49 U.S.C. 20134 with respect to highway, traffic, and 
motor vehicle safety and highway construction.
    (b) Carry out the functions and exercise the authority vested in the 
Secretary by the Rail Safety Improvement Act of 2008 (Pub. L. 110-432, 
Div. A, 122 Stat. 4848).
    (c) Carry out the functions and exercise the authority vested in the 
Secretary by the Passenger Rail Investment and Improvement Act of 2008 
(Pub. L. 110-432, Div. B, 122 Stat. 4907), except Title VI (122 Stat. 
4968) as it relates to capital and preventive maintenance projects for 
the Washington Metropolitan Area Transit Authority.
    (d) Carry out the functions vested in the Secretary by section 5 (as 
it relates to railroad bridges not over navigable waterways) and section 
8(a) (as it relates to railroad bridges) of the International Bridge Act 
of 1972 (Pub. L. 92-434, 86 Stat. 731) (33 U.S.C. 535c and 535e(a)).
    (e) Exercise the administrative powers vested in the Secretary by 49 
U.S.C. Subtitle I, Chapter 5 (section 501 et seq.) pertaining to 
railroad safety and 49 U.S.C. 103 (Federal Railroad Administration).
    (f) Promote and undertake research and development relating to rail 
matters generally (49 U.S.C. Chapter 3 (section 301 et seq). and 49 
U.S.C. 102).
    (g) Carry out the functions vested in the Secretary by 45 U.S.C. Ch. 
15 (section 601 et seq.) with respect to emergency rail services, except 
the authority to make findings required by 45 U.S.C. 662(a) and the 
authority to sign guarantees of certificates issued by trustees.
    (h) Carry out the functions vested in the Secretary by 45 U.S.C. 
chapter 17 (section 801 et seq.) with respect to railroad revitalization 
and regulatory reform and the Railroad Rehabilitation and Improvement 
Financing program.
    (i) Carry out the functions vested in the Secretary by 45 U.S.C. 
chapter 21 (section 1201 et seq.) related to the Alaska Railroad 
transfer.
    (j) Except as delegated to the Under Secretary of Transportation for 
Policy by Sec.  1.25, carry out the functions vested in the Secretary by 
49 U.S.C. 5121-5124 relating to the transportation or shipment of 
hazardous materials by railroad.
    (k) Carry out the functions vested in the Secretary by section 7 of 
Executive Order 12580 (delegating sections 108 and 109, respectively, of 
the Comprehensive Environmental Response, Compensation, and Liability 
Act of 1980 as amended (49 U.S.C. 9615 et seq.), insofar as they relate 
to rolling stock.
    (l) Carry out the functions vested in the Secretary by 33 U.S.C. 
493, relating to disputes over the terms and compensation for use of 
railroad bridges built under that statute.
    (m) Carry out the functions vested in the Secretary by 49 U.S.C. 
5701 with respect to transportation of food and other products by 
railroad.
    (n) Carry out the functions vested in the Secretary by 23 U.S.C. 322 
(Magnetic Levitation Transportation Technology Deployment Program).
    (o) Carry out the functions vested in the Secretary by sections 1307 
(see note to 23 U.S.C. 322), and 1946 of SAFETEA-LU as they relate to 
deployment of magnetic levitation transportation projects and a study of 
rail transportation and regulation.
    (p) Carry out the function vested in the Secretary by the Bankruptcy 
Code (11 U.S.C. 1163), which relates to the nomination of trustees for 
rail carriers in reorganization, with the concurrence of the Office of 
the General Counsel.
    (q) Carry out the functions vested in the Secretary by 23 U.S.C. 
327, as it relates to railroad projects.
    (r) Carry out the functions vested in the Secretary by the sections 
1318(d) and 1534 of Moving Ahead for Progress in the 21st Century Act 
(Pub. L. 112-141, 126 Stat. 405), as they relate to railroads.
    (s) Carry out the functions vested in the Secretary by section 
2(d)(2) of Executive Order 12777, with respect to rail transportation, 
relating to the approval of means to ensure the availability of private 
personnel and equipment to remove, to the maximum extent practicable, a 
worst case discharge, the review and approval of response plans, and the 
authorization of

[[Page 42]]

railroads to operate without approved response plans.



Sec.  1.90  The Federal Transit Administration.

    Is responsible for:
    (a) Providing grants that support the development of safe, 
comprehensive and coordinated public transportation systems;
    (b) Creating and implementing a national public transportation 
safety program that includes the development of safety practices and 
standards;
    (c) Assisting public transportation systems to achieve and maintain 
their infrastructure, equipment and vehicles in a state of good repair;
    (d) Promoting the environmental benefits of public transportation 
through continuing, cooperative, and comprehensive planning that 
improves the performance of the intermodal transportation system.
    (e) Supporting research, development, demonstration, and deployment 
projects dedicated to assisting in the delivery of safe, efficient and 
effective public transportation service;
    (f) Supporting, in coordination with FHWA and FRA, strong 
connections between public transportation and other modes of 
transportation, including bicycle/pedestrian facilities and station-area 
development that strengthen local communities; and
    (g) Maximizing the positive impacts on the U.S. economy by 
encouraging domestic manufacturing on transit projects through the 
enforcement of Buy America provisions.



Sec.  1.91  Delegations to the Federal Transit Administrator.

    The Federal Transit Administrator is delegated authority to carry 
out the following:
    (a) Chapter 53 of title 49, United States Code, and notes thereto.
    (b) Sections 3 and 9 through 15 of the National Capital 
Transportation Act of 1969 (Pub. L. 91-143, 83 Stat. 320), as amended 
(DC Code, section 9-1101.01 et seq.).
    (c) Sections of title 23, United States Code, and notes thereto that 
involve public transportation projects, including those provisions that 
pertain to planning, environmental reviews and use of historic resources 
for public transportation projects.
    (d) Section 303 of title 49, United States Code, as it involves 
public transportation projects.
    (e) The following sections of Moving Ahead for Progress in the 21st 
Century Act (Pub. L. 112-141, 126 Stat. 405):
    (1) Sections 1315 [23 U.S.C. 109 note], 1316 [23 U.S.C. 109 note], 
1317 [23 U.S.C. 109 note], 1318 [23 U.S.C. 109 note], and 1321, as they 
relate to public transit projects; and
    (2) Sections 20005(b) [49 U.S.C. 5303 note], 20008(b) [49 U.S.C. 
5309 note], 20013(b) [49 U.S.C. 5315 note], 20017(b) [49 U.S.C. 5324 
note], 20021(b), and 20025(b) [49 U.S.C. 5335 note].
    (f) Section 601 of the Passenger Rail Investment and Improvement Act 
of 2008 (Pub. L. 110-432, Div. B).



Sec.  1.92  The Maritime Administration.

    Is responsible for:
    (a) Fostering the development and maintenance of a United States 
merchant marine sufficient to meet the needs of the national security 
and of the domestic and foreign commerce of the United States;
    (b) Operating the U.S. Merchant Marine Academy in order to train 
officers for the Nation's merchant marine;
    (c) Promoting development of ports and intermodal transportation 
systems through investments in port infrastructure via grant programs 
and America's Marine Highway program;
    (d) Promoting the growth and modernization of the U.S. merchant 
marine and U.S. shipyards by administering loan and guarantee programs;
    (e) Overseeing the administration of cargo preference statutes;
    (f) Maintaining custody of, operating, and preserving ships in the 
National Defense Reserve Fleet as well as other vessels under the 
custody of MARAD and managing, maintaining and operating its Ready 
Reserve Force component;
    (g) Conducting research and development to improve and promote the 
waterborne commerce of the United States.

[[Page 43]]



Sec.  1.93  Delegations to the Maritime Administrator.

    The Maritime Administrator is delegated authority to:
    (a) Carry out the functions and exercise the authorities vested in 
the Secretary under Subtitle V of title 46, U.S.C., except for 46 U.S.C. 
51303 and 55601(c) and (d);
    (b) Carry out the functions and exercise the authorities vested in 
the Secretary under Subtitle III of title 46, U.S.C.;
    (c) Carry out the functions and exercise the authorities vested in 
the Secretary under the Merchant Ship Sales Act of 1946, as amended (50 
U.S.C. App. 1735 et seq.);
    (d) Carry out the functions and exercise the authorities vested in 
the Secretary under 50 U.S.C. App 1744 with respect to the National 
Shipping Authority;
    (e) Exercise the authority vested in the Administrator of General 
Services by the Act of June 1, 1948, Public Law 80-566, 62 Stat. 281, 40 
U.S.C. 318-318c and the Federal Property and Administrative Services Act 
of 1949, as amended, Public Law 81-152, 63 Stat. 377, and delegated to 
the Secretary of Transportation by the Administrator of General Services 
on March 23, 2000, relating to the enforcement of laws for the 
protection of property and persons at the United States Merchant Marine 
Academy, located in Kings Point, New York. This may be accomplished 
through appointment of uniformed personnel as special police, 
establishment of rules and regulations governing conduct on the affected 
property, and execution of agreements with other Federal, State, or 
local authorities.
    (f) Carry out the functions and exercise the authorities vested in 
the Secretary by section 3(d) of the Act to Prevent Pollution from Ships 
(33 U.S.C. 1902(d)) as it relates to ships owned or operated by the 
Maritime Administration when engaged in noncommercial service;
    (g) Carry out the functions vested in the Secretary by 40 U.S.C. 554 
relating to authority to convey surplus real property to public entities 
for use in the development or operation of port facilities;
    (h) Carry out the following powers and duties and exercise the 
authorities vested in the Secretary by the Deepwater Port Act of 1974, 
Public Law 93-627, as amended (33 U.S.C. 1501 et seq.):
    (1) Section 4: The authority to issue, transfer, amend, or reinstate 
a license for the construction and operation of a deepwater port (33 
U.S.C. 1503(b));
    (2) Section 4: The authority to process applications for the 
issuance, transfer, amendment, or reinstatement of a license for the 
construction and operation of a deepwater port (33 U.S.C. 1503(b)), in 
coordination with the Commandant of the Coast Guard;
    (3) Section 5(h)(2): Approval of fees charged by adjacent coastal 
States for use of a deepwater port and directly related land-based 
facilities (33 U.S.C. 1504(h)(2));
    (4) Section 4: Make Adjacent Coastal State designations pursuant to 
33 U.S.C. 1508(a)(2);
    (5) Section 11: In collaboration with the Assistant Secretary for 
Aviation and International Affairs and the Assistant Secretary for 
Transportation Policy, consultation with the Secretary of State relating 
to international actions and cooperation in the economic, trade and 
general transportation policy aspects of the ownership and operation of 
deepwater ports (33 U.S.C. 1510);
    (6) Section 16(b): Submission of notice of the commencement of a 
civil suit (33 U.S.C. 1515(b));
    (7) Section 16(c): Intervention in any civil action to which the 
Secretary is not a party (33 U.S.C. 1515(c));
    (8) Sections 8(b), 12: Authority to request the Attorney General to 
seek the suspension or termination of a deepwater port license and to 
initiate a proceeding before the Surface Transportation Board (33 U.S.C. 
1507, 1511);
    (i) Carry out the functions and exercise the authority vested in the 
Secretary by section 109 of the Maritime Transportation Security Act of 
2002, Public Law 107-295, 116 Stat. 2064, 46 U.S.C. 70101 note, to 
provide training for maritime security professionals;
    (j) Exercise all the powers of the Secretary under 49 U.S.C. 336 
with respect to civil penalties;
    (k) Carry out all of the duties, authorities and powers of the 
Secretary

[[Page 44]]

under the Reefs for Marine Life Conservation law, 16 U.S.C. 1220 et 
seq.;
    (l) In consultation and coordination with the Office of 
Intelligence, Security and Emergency Response, carry out the functions 
under the Defense Production Act of 1950, Public Law 81-774, 64 Stat. 
798, as amended (50 U.S.C. app. 2061 et seq.), that were vested in the 
Secretary by Executive Order 13603 (``National Defense Resources 
Preparedness'') as such authorities relate to the use of sealift support 
and port facilities, and other maritime industry related facilities and 
services, and maritime-related voluntary agreements pursuant to Section 
708 of the Act;
    (m) Carry out the functions related to the National Defense Reserve 
Fleet vested in the Secretary pursuant to 50 U.S.C. App. 1744;
    (n) Carry out all of the duties, authorities and powers of the 
Secretary under the following statutes:
    (1) 10 U.S.C. 2218, the National Defense Sealift Fund;
    (2) 40 U.S.C. 3134, Bond waiver authority for certain contracts;
    (3) 46 U.S.C. 501(b), Waiver of navigation and vessel-inspection 
laws and determination of non-availability of qualified U.S. flag 
vessels;
    (4) 46 U.S.C. 3316, granting authority to appoint a representative 
to Executive Board of the American Bureau of Shipping (ABS);
    (5) 46 U.S.C. 12119(a)(5), authority to waive or reduce the 
qualified proprietary cargo requirements and determine citizenship;
    (6) 50 U.S.C. 196, Emergency foreign vessel acquisition; purchase 
and requisition of vessels lying idle in United States waters;
    (7) 50 U.S.C. 197, Voluntary purchase or charter agreement;
    (8) 50 U.S.C. 198, granting authority over requisitioned vessels;
    (o) Carry out all of the duties, authorities and powers of the 
Secretary with respect to 16 U.S.C. 1220 et seq. (use of obsolete ships 
as reefs for marine life conservation);
    (p) Carry out all of the duties, powers and authorities delegated to 
the Secretary of Transportation by the Administrator of General Services 
with respect to the leasing and management of property under 41 CFR 102-
72.30, Delegations of Authority;
    (q) Carry out all of the duties, authorities and powers vested in 
the Secretary by 46 U.S.C. 70101 note, to provide training for maritime 
security professionals;
    (r) Carry out the duties, authorities and powers of the Secretary 
under the following statutes:
    (1) Title XV, Subtitle B of the Food, Agriculture, Conservation, and 
Trade Act of 1990, Public Law 101-624 (104 Stat. 3359, 3665), 7 U.S.C. 
1421 and Chapter 553 of Title 46, U.S.C., authorizing the Secretary to 
designate ``American Great Lakes'' vessels that are exempt from the 
restrictions relating to the carriage of preference cargoes;
    (2) 46 U.S.C. 2302(e) (determination of substandard vessels);
    (3) Section 304(a) of Coast Guard and Maritime Transportation Act of 
2006, 33 U.S.C. 1503(i), a program to promote liquefied natural gas 
tanker transportation;
    (4) Section 306 of Public Law 111-281, concerning the phaseout of 
vessels supporting oil and gas development;
    (s) Carry out the functions and exercise the authorities vested in 
the President by Section 1019 of John Warner National Defense 
Authorization Act for Fiscal Year 2007 (Pub. L. 109-364) and delegated 
to the Secretary by the President;
    (t) Lead efforts pertaining to civil emergency planning for sealift 
support for North Atlantic Treaty Organization (NATO) operations, 
including coordinating DOT representation on sealift-related committees, 
in coordination with the Office of Intelligence, Security and Emergency 
Response;
    (u) Carry out the duties, functions, authorities, and powers of the 
Secretary under 49 U.S.C. 109(e), (f), (h), (j)(3);
    (v) Carry out all of the duties, authorities, and powers of the 
Secretary of Transportation, with respect to matters involving the 
Clarification Act, Public Law 78-17, 57 Stat. 45, as amended (50 U.S.C. 
App. 1291);
    (w) Carry out all of the duties, authorities, and powers of the 
Secretary under 46 U.S.C. 12102(d).

[[Page 45]]



Sec.  1.94  The National Highway Traffic Safety Administration.

    Is responsible for:
    (a) In highway safety, setting uniform guidelines for a coordinated 
national highway safety formula grant program carried out by the States 
and local communities; conducting research and development activities, 
including demonstration projects and the collection and analysis of 
highway and motor vehicle safety data and related information; 
administering highway safety grant programs to encourage State efforts 
in such areas as occupant protection, impaired and distracted driving, 
traffic safety data information system improvements, motorcyclist 
safety, child safety restraints, and graduated driver's licensing; 
determining State compliance with highway traffic safety law 
requirements; administering a nationwide high visibility enforcement 
program; administering the National Driver Register; and leading and 
coordinating efforts to establish, expand, and improve State, local, 
tribal, and regional emergency medical services and 9-1-1 systems.
    (b) In motor vehicle safety, establishing and enforcing safety 
standards and regulations for the manufacture and importation of motor 
vehicles and motor vehicle equipment; conducting research, development, 
and testing concerning motor vehicle safety, including vehicle-to-
vehicle and vehicle-to-infrastructure technologies and other new or 
advanced vehicle technologies; and investigating safety-related defects 
and non-compliance in motor vehicles and motor vehicle equipment and 
administering related recalls.
    (c) In automobile fuel economy, establishing automobile fuel economy 
standards for passenger and non-passenger automobiles and fuel 
efficiency standards for medium and heavy vehicles.
    (d) In consumer protection and information, establishing 
requirements and carrying out programs for passenger motor vehicle 
information, such as the New Car Assessment Program; bumper standards 
for passenger motor vehicles; odometer requirements; and passenger motor 
vehicle theft prevention standards.



Sec.  1.95  Delegations to the National Highway Traffic Safety Administrator.

    The National Highway Traffic Safety Administrator is delegated 
authority to:
    (a) Exercise the authority vested in the Secretary under chapters 
301, 303, 321, 323, 325, 327, 329, and 331, of Title 49, U.S.C., except 
for 49 U.S.C. 32916(b).
    (b) Exercise the authority vested in the Secretary by 49 U.S.C. 
20134(a) with respect to laws administered by the National Highway 
Traffic Safety Administration pertaining to highway, traffic and motor 
vehicle safety.
    (c) Carry out, in coordination with the Federal Motor Carrier Safety 
Administrator, the authority vested in the Secretary by subchapter III 
of chapter 311 of title 49, U.S.C., to promulgate safety standards for 
commercial motor vehicles and equipment subsequent to initial 
manufacture when the standards are based upon and similar to a Federal 
Motor Vehicle Safety Standard promulgated, either simultaneously or 
previously, under chapter 301 of title 49, U.S.C.
    (d) Carry out the Highway Safety Act of 1966, as amended (Pub. L. 
89-564, 80 Stat. 731), for highway safety programs, research, and 
development except those relating to highway design, construction and 
maintenance, traffic control devices, identification and surveillance of 
crash locations, and highway-related aspects of pedestrian safety.
    (e) Exercise the authority vested in the Secretary under chapter 4 
of title 23, U.S.C., except for 23 U.S.C. 409.
    (f) Carry out the functions and exercise the authority vested in the 
Secretary for the following provisions of title 23, U.S.C. (with respect 
to matters within the primary responsibility of the National Highway 
Traffic Safety Administration): 153, 154, 158, 161, 163, 164, and 313 
(Buy America).
    (g) Carry out the consultation functions vested in the Secretary by 
Executive Order 11912, as amended (``Delegation of Authorities Relating 
to Energy Policy and Conservation'') relating to automobiles.
    (h) Exercise the authority vested in the Secretary by section 210(2) 
of the

[[Page 46]]

Clean Air Act, Public Law 90-148, as amended [42 U.S.C. 7544(2)].
    (i) Carry out the functions and exercise the authority vested in the 
Secretary by the following sections of the Safe, Accountable, Flexible, 
Efficient Transportation Equity Act: A Legacy for Users, Public Law 109-
59:
    (1) Section 1906 [23 U.S.C. 402 note], relating to the grant program 
to prohibit racial profiling;
    (2) Section 2010 [23 U.S.C. 402 note], relating to motorcyclist 
safety;
    (3) Section 2011 [23 U.S.C. 405 note], relating to child safety and 
child booster seat incentive grants;
    (4) Section 10202 [42 U.S.C. 300d-4], relating to emergency medical 
services, as amended by section 31108 of the Moving Ahead for Progress 
in the 21st Century Act, Public Law 112-141;
    (5) Section 10305(b) [49 U.S.C. 30101 note], relating to the 
publication of non-traffic incident data collection; and
    (6) Section 10309(a), relating to the testing of 15-passenger van 
safety.
    (j) Carry out the following functions and exercise the authority 
vested in the Secretary under the Energy Independence and Security Act 
of 2007 (Pub. L. 110-140):
    (1) Section 106 [49 U.S.C. 32902 note], relating to the continued 
applicability of existing standards;
    (2) Section 107 [49 U.S.C. 32902 note], relating to the National 
Academy of Sciences studies;
    (3) Section 108, relating to the National Academy of Sciences study 
of medium-duty and heavy-duty truck fuel economy;
    (4) Section 110 [49 U.S.C. 32908 note], relating to the periodic 
review of accuracy of fuel economy labeling;
    (5) Section 113 [49 U.S.C. 32904 note], relating to the exemption 
from separate calculation requirement;
    (6) Section 131(b)(2) and (c)(1) [42 U.S.C. 17011(b)(2), (c)(1)], 
relating to the Plug-in Electric Drive Vehicle Program;
    (7) Section 225(a), relating to the study of optimization of 
flexible fueled vehicles to use E-85 fuel;
    (8) Section 227(a), relating to the study of optimization of biogas 
used in natural gas vehicles;
    (9) Section 242 [42 U.S.C. 17051], relating to renewable fuel 
dispenser requirements; and
    (10) Section 248(a) [42 U.S.C. 17054(a)], relating to biofuels 
distribution and advanced biofuels infrastructure.
    (k) Carry out the functions and exercise the motor vehicle safety 
authority vested in the Secretary under section 7103 of the 
Transportation Equity Act for the 21st Century, Public Law 105-178.
    (l) Carry out the functions and exercise the motor vehicle safety 
authority vested in the Secretary under sections 3(d), 10, 11 and 13 
through 17 [uncodified provisions] of the Transportation Recall 
Enhancement, Accountability, and Documentation (TREAD) Act, Public Law 
106-414.
    (m) Carry out the functions and exercise the motor vehicle safety 
authority vested in the Secretary under Anton's Law, Public Law 107-318.
    (n) Carry out the functions and exercise the motor vehicle safety 
authority vested in the Secretary under the Cameron Gulbransen Kids 
Transportation Safety Act of 2007 or the K.T. Safety Act of 2007, Public 
Law 110-189.
    (o) Carry out the functions and exercise the motor vehicle safety 
authority vested in the Secretary under the Pedestrian Safety 
Enhancement Act of 2010, Public Law 111-373.
    (p) Carry out the functions and exercise the authority vested in the 
Secretary by the following sections of the Moving Ahead for Progress in 
the 21st Century Act, Public Law 112-141:
    (1) Sections 31101(d) and (f) (23 U.S.C. 402 note), Authorization of 
Appropriations;
    (2) Sections 31203(b), Civil Penalty Criteria Rule, 31301, Public 
Availability of Recall Information, 31302, NHTSA Outreach to 
Manufacturer, Dealer, and Mechanic Personnel, 31309(a), Study of Crash 
Data Collection, 31401, NHTSA Electronics, Software, and Engineering 
Expertise, 31402, Electronics Systems Performance, 31501, Child Safety 
Seats, 31502, Child Restraint Anchorage Systems, 31503, Rear Seat Belt 
Reminders, 31504, Unattended Passenger Reminders, 31505, New Deadline, 
and 31601, Rulemaking on Visibility of Agricultural Equipment;

[[Page 47]]

    (3) Section 32201, Crashworthiness Standards; and
    (4) Sections 32703, Regulations for Improved Occupant Protection, 
Passenger Evacuation, and Crash Avoidance, 32704, Fire Prevention and 
Mitigation, 32705, Occupant Protection, Collision Avoidance, Fire 
Causation, and Fire Extinguisher Research and Testing, and 32706, 
Concurrence of Research and Rulemaking.
    (q) Carry out the functions and exercise the authority vested in the 
Secretary to implement section 3(g)-(h) of the Automobile Information 
Disclosure Act (Pub. L. 85-506, 72 Stat. 325), as amended (15 U.S.C. 
1232(g)-(h)).



Sec.  1.96  The Pipeline and Hazardous Materials Safety Administration.

    Is responsible for:
    (a) Pipelines. (1) Administering a national program of safety in 
natural gas and hazardous liquid pipeline transportation including 
identifying pipeline safety concerns, developing uniform safety 
standards, and promulgating and enforcing safety regulations;
    (2) Increasing the gas and liquid pipeline industry's focus on 
safety beyond compliance with minimum standards, with particular 
attention to developing strong safety cultures in regulated entities;
    (3) Enhancing information awareness systems at the State and local 
levels to reduce pipeline damage from excavation and providing grants to 
support these systems; and
    (4) Encouraging the timely replacement of aging and deteriorating 
pipelines in distribution systems, especially in areas with high 
potential negative consequences to public safety and the environment.
    (b) Hazardous materials. (1) Administering a national program of 
safety, including security, in multi-modal hazardous materials 
transportation including identifying hazardous materials safety 
concerns, developing uniform safety standards, and promulgating and 
enforcing safety and security regulations; and
    (2) Conducting outreach and provide available grants assistance to 
increase awareness and emergency preparedness.



Sec.  1.97  Delegations to the Pipeline and Hazardous Materials
Safety Administrator.

    The Pipeline and Hazardous Materials Safety Administrator is 
delegated responsibility to:
    (a) Pipelines. (1) Exercise the authority vested in the Secretary 
under chapter 601 of title 49, U.S.C.
    (2) Exercise the authority vested in the Secretary under section 28 
of the Mineral Leasing Act, as amended (30 U.S.C. 185(a) and 30 U.S.C. 
185(w)(3)).
    (3) Exercise the authority vested in the Secretary under section 21 
of the Deepwater Port Act of 1974, as amended (33 U.S.C. 1520) relating 
to the establishment, enforcement and review of regulations concerning 
the safe construction, operation or maintenance of oil or natural gas 
pipelines on Federal lands and the Outer Continental Shelf.
    (4) Carry out the functions vested in the Secretary by section 5 (as 
it relates to pipelines not over navigable waterways) and section 8(a) 
(as it relates to pipelines) of the International Bridge Act of 1972 
(Pub. L. 92-434, 86 Stat. 731) (33 U.S.C. 535c and 535e(a)).
    (5) Exercise the authority vested in the Secretary under the Outer 
Continental Shelf Lands Act, as amended (43 U.S.C. 1331 et seq.) with 
respect to the establishment, enforcement and review of regulations 
concerning pipeline safety.
    (6) Carry out the functions vested in the Secretary by section 7 of 
Executive Order 12580 (delegating sections 108 and 109, respectively, of 
the Comprehensive Environmental Response, Compensation, and Liability 
Act of 1980 as amended (49 U.S.C. 9615 et seq.), insofar as they relate 
to pipelines.
    (7) Exercise the authority vested in the Secretary by 49 U.S.C. 
60301 as it relates to pipeline safety user fees.
    (8) Exercise the authority vested in the Secretary by 49 U.S.C. 6101 
et seq. as it relates to pipeline damage prevention One Call programs.
    (9) Exercise the authority vested in the Secretary by the Pipeline 
Safety Improvement Act of 2002 (Pub. L. 107-355, 116 Stat. 2985).
    (10) Exercise the authority vested in the Secretary by the Pipeline 
Safety, Regulatory Certainty, and Job Creation Act of 2011 (Pub. L. 112-
90).

[[Page 48]]

    (b) Hazardous materials. Except as delegated to the Under Secretary 
of Transportation for Policy by Sec.  1.25:
    (1) Carry out the functions vested in the Secretary by 49 U.S.C. 
5121(a), (b), (c), (d) and (e), 5122, 5123, and 5124, with particular 
emphasis on the shipment of hazardous materials and the manufacture, 
fabrication, marking, maintenance, reconditioning, repair or test of 
multi-modal containers that are represented, marked, certified, or sold 
for use in the transportation of hazardous materials; and
    (2) Participate, with the Administrator of the Federal Aviation 
Administration, in the Dangerous Goods Panel at the International Civil 
Aviation Organization, under the authority vested in the Secretary by 49 
U.S.C. 5120; and
    (3) Carry out, in coordination with the Administrators of the 
Federal Aviation Administration (for matters relating to the transport 
of hazardous materials by aircraft), the Federal Motor Carrier Safety 
Administration (for matters relating to the transport of hazardous 
materials by public highway), and the Federal Railroad Administration 
(for matters relating to the transport of hazardous materials by rail), 
the functions vested in the Secretary by all other provisions of the 
Federal hazardous material transportation law (49 U.S.C. 5101 et seq.) 
except as delegated by Sec. Sec.  1.83(d)(2) and (3) (FAA) and 
1.87(d)(2) (FMCSA) and by paragraph 2(99) of Department of Homeland 
Security Delegation No. 0170.
    (4) Exercise the authority vested in the Secretary by sections 33005 
(49 U.S.C. 5121 note), 33006, 33008 (49 U.S.C. 5121 note), 33009(b)(2) 
(49 U.S.C. 5121 note), and 33012 (49 U.S.C. 5117 note) of the Moving 
Ahead for Progress in the 21st Century Act (Pub. L. 112-141, 126 Stat. 
405).
    (c) Exercise the authority delegated to the Secretary in the 
following sections of Executive Order 12777:
    (1) Section 2(b)(2) relating to the establishment of procedures, 
methods, equipment and other requirements to prevent discharges from, 
and to contain oil and hazardous substances in, pipelines, motor 
carriers, and railroads; and
    (2) Section 2(d)(2) relating to the issuance of regulations 
requiring the owners or operators of pipelines, motor carriers, and 
railroads, subject to the Federal Water Pollution Control Act (33 U.S.C. 
1321 et seq.), to prepare and submit response plans. For pipelines 
subject to the Federal Water Pollution Control Act, this authority 
includes the approval of means to ensure the availability of private 
personnel and equipment to remove, to the maximum extent practicable, a 
worst case discharge, the review and approval of response plans, and the 
authorization of pipelines to operate without approved response plans.



Sec.  1.98  The Research and Innovative Technology Administration.

    Is responsible for:
    (a) Coordinating, facilitating, and reviewing the Department's 
research and development programs and activities, except as related to 
NHTSA;
    (b) After consultation with Operating Administration and OST 
offices, making recommendations to the Secretary on all Operating 
Administration and OST research budgets;
    (c) Providing leadership on technical, navigation, communication, 
and systems engineering activities, and spectrum management on behalf of 
the civil and civilian PNT communities;
    (d) Directing and administering university transportation research 
grants;
    (e) In coordination with FHWA, NHTSA, and FMCSA, conducting vehicle-
to-vehicle and vehicle-to-infrastructure research;
    (f) Advancing Intelligent Transportation Systems (ITS) research and 
deployment of real-time multi-modal travel information for travelers, 
carriers, and public agencies;
    (g) Providing oversight of the activities of the Volpe National 
Transportation Systems Center, the ITS Joint Program Office, the Bureau 
of Transportation Statistics, and the Transportation Safety Institute; 
and
    (h) Providing technical support to advance the mission of the 
Secretary's Safety Council.

[[Page 49]]



Sec.  1.99  Delegations to the Research and Innovative Technology
Administrator.

    The Research and Innovative Technology Administrator is delegated 
authority for the following:
    (a) Coordination of departmental research and development programs 
and activities. (1) Coordinate, facilitate, and review all departmental 
research and development programs and activities, except those carried 
out by the National Highway Traffic Safety Administration, as described 
in section 4(b) of the Norman Y. Mineta Research and Special Programs 
Improvement Act (Pub. L. 108-426, 118 Stat. 2423).
    (2) After consultation with Operating Administration and OST 
offices, RITA shall make recommendations to the Secretary on all 
Operating Administration and OST research budgets.
    (b) Science and technology. (1) With respect to scientific and 
technological matters, serve as principal advisor to the Secretary and 
representative of the Department to the academic community, the private 
sector, professional organizations, and other federal, state and local 
government agencies.
    (2) Serve as principal liaison official for the Department of 
Transportation with the Office of Science and Technology Policy in the 
Executive Office of the President, the National Science and Technology 
Council, and the President's Committee of Advisors on Science and 
Technology.
    (3) Serve as primary official responsible for coordination and 
oversight of the Department's implementation of section 2 of the Federal 
Technology Transfer Act of 1986 (15 U.S.C. 3710a), relating to the 
transfer of Federal technology to the marketplace; and section 12(d) of 
the National Technology Transfer and Advancement Act of 1996 (Pub. L. 
104-113), as implemented by OMB Circular A-119: Federal Participation in 
the Development and Use of Voluntary Consensus Standards and in 
Conformity Assessment Activities.
    (4) Serve as Chair and Executive Secretary of the Department of 
Transportation's Research, Development and Technology Planning Council 
and Planning Team.
    (5) Advocate Department of Transportation policy and program 
coordination efforts associated with transportation research.
    (6) Represent the Department of Transportation on departmental, 
national and international committees and meetings dealing with 
transportation research and development (R & D).
    (7) Manage the strategic planning process for transportation R & D 
across the Department of Transportation and, through the National 
Science and Technology Council, across the Federal Government.
    (8) Carry out the transportation research and development strategic 
planning function vested in the Secretary by 23 U.S.C. 508.
    (9) Conduct transportation system-level assessments and policy 
research.
    (10) Facilitate the creation of transportation public/private 
partnerships.
    (11) Foster innovation in the transportation sector.
    (12) Disseminate information on departmental, national, and 
international transportation R & D activities.
    (13) Provide legal support for Departmental intellectual property 
and patent issues.
    (14) Manage department- and government-wide (inter/multimodal) 
transportation R & D programs.
    (15) Oversee such advisory boards that deal with transportation 
system-level R & D assessments and issues, such as the Transportation 
Research Board Committee on the Federal Transportation R & D Strategic 
Planning Process.
    (c) Advanced vehicle technology. Carry out the functions vested in 
the Secretary by section 5111 of the Transportation Equity Act for the 
21st Century (49 U.S.C. 5506), as extended by the Surface Transportation 
Extension Act of 2004, Part V, Public Law 108-310, September 30, 2004, 
118 Stat. 1144, and section 5513(j) of SAFETEA-LU.
    (d) Remote sensing technology. Carry out the functions vested in the 
Secretary by section 5113 of the Transportation Equity Act for the 21st 
Century (23 U.S.C. 502 Note), as extended by the Surface Transportation 
Extension Act

[[Page 50]]

of 2004, Part V, Public Law 108-310, September 30, 2004, 118 Stat. 1144, 
and section 5506 of SAFETEA-LU.
    (e) University transportation research. Carry out the functions 
vested in the Secretary by section 5110 of the Transportation Equity Act 
for the 21st Century (49 U.S.C. 5505), as extended by the Surface 
Transportation Extension Act of 2004, Part V, Public Law 108-310, 
September 30, 2004, 118 Stat. 1144, and sections 5401 and 5402 of 
SAFETEA-LU.
    (f) Volpe National Transportation Systems Center. Exercise the 
authority vested in the Secretary with respect to the activities of the 
Volpe National Transportation Systems Center as described in 49 U.S.C. 
112(d)(1)(E) and carry out the functions vested in the Secretary by 49 
U.S.C. 328 with respect to the working capital fund for financing the 
activities of the Volpe National Transportation Systems Center.
    (g) Exercise authority over the Transportation Safety Institute.
    (h) Carry out the functions vested in the Secretary by 49 U.S.C. 111 
relating to transportation statistics, analysis, and reporting.
    (i) Carry out the functions vested in the Secretary by 49 U.S.C. 
5503(d) (Office of Intermodalism).
    (j) Aviation information. (1) Carry out the functions vested in the 
Secretary by 49 U.S.C. 329(b)(1) relating to the collection and 
dissemination of information on civil aeronautics.
    (2) Carry out the functions vested in the Secretary by section 
4(a)(7) of the Civil Aeronautics Board Sunset Act of 1984 (Pub. L. 98-
443) relating to the reporting of the extension of unsecured credit to 
political candidates (section 401, Federal Election Campaign Act of 
1971; 2 U.S.C. 451), in conjunction with the General Counsel and the 
Assistant Secretary for Aviation and International Affairs.
    (3) Carry out the functions vested in the Secretary by: 49 U.S.C. 
40113 (relating to taking such actions and issuing such regulations as 
may be necessary to carry out its air commerce and safety 
responsibilities), 49 U.S.C. 41702 (relating to the duty of carriers to 
provide safe and adequate service), 49 U.S.C. 41708 and 41709 (relating 
to the requirement to keep information and the forms in which it is to 
be kept), and 49 U.S.C. 41701 (relating to establishing just and 
reasonable classifications of carriers and rules to be followed by each) 
as appropriate to carry out the responsibilities under this paragraph in 
conjunction with the General Counsel and the Assistant Secretary for 
Aviation and International Affairs.
    (k) Hazardous materials information. In coordination with the Under 
Secretary, work with the Operating Administrations to determine data 
needs, collection strategies, and analytical techniques appropriate for 
implementing 49 U.S.C. 5101 et seq.
    (l) Carry out the functions vested in the Secretary by section 
1801(e) of SAFETEA-LU (establishing and maintaining a national ferry 
database).
    (m) Carry out the functions vested in the Secretary by section 
5513(c), (d), (g), (h), (i), (l), and (m) of SAFETEA-LU (establishing 
various research grants).
    (n) Carry out the functions vested in the Secretary by section 
5201(m) of SAFETEA-LU (biobased transportation research program).
    (o) Carry out the functions vested in the Secretary by 23 U.S.C. 509 
(establishing and supporting a national cooperative freight 
transportation research program).
    (p) Positioning, navigation and timing (PNT) and spectrum 
management. Carry out the functions described in the Secretarial memo of 
August 1, 2007, ``Positioning, Navigation and Timing (PNT) and Spectrum 
Management Realignment under the Research and Innovative Technology 
Administration (RITA).''
    (q) Carry out the Secretary's authority to establish, operate and 
manage the Nationwide Differential Global Positioning System (NDGPS) as 
described in Section 346 of Public Law 105-66 (Department of 
Transportation and Related Agencies Appropriations Act of 1998).



Sec.  1.100  The Saint Lawrence Seaway Development Corporation.

    Is responsible for the development, operation, and maintenance of 
that part of the Saint Lawrence Seaway within the territorial limits of 
the United States.

[[Page 51]]



Sec.  1.101  Delegations to the Saint Lawrence Seaway Development
Corporation Administrator.

    The Administrator of the Saint Lawrence Seaway Development 
Corporation is delegated authority to:
    (a) Carry out the functions vested in the Secretary by sections 4, 
5, 6, 7, 8, 12 and 13 of section 2 of the Port and Tanker Safety Act of 
1978 (Pub. L. 95-474, 92 Stat. 1471) [33 U.S.C. 1223-1225, 1227, and 
1231-1232] as they relate to the operation of the Saint Lawrence Seaway.
    (b) Carry out the functions vested in the Secretary by section 5 and 
section 8(a) of the International Bridge Act of 1972 (Pub. L. 92-434, 86 
Stat. 731) [33 U.S.C. 535c and 535e(a)] as it relates to the Saint 
Lawrence River.
    (c) Carry out the functions vested in the Secretary by section 3(d) 
of the Act to Prevent Pollution from Ships [33 U.S.C. 1902e] as it 
relates to ships owned or operated by the Corporation when engaged in 
noncommercial service.



Sec. Appendix A to Part 1--Delegations and Redelegations by Secretarial 
                                Officers

    1. Director of Budget. The Assistant Secretary for Budget and 
Programs and CFO has redelegated to the Director of Budget authority 
to--
    (a) Request apportionment and reapportionment of funds by the Office 
of Management and Budget, provided that no request for apportionment or 
reapportionment which anticipates the need for a supplemental 
appropriation shall be submitted to the Office of Management and Budget 
without appropriate certification by the Secretary.
    (b) Issue allotments or allocations of funds to components of the 
Department.
    2. Chief Counsels. The General Counsel has delegated to the Chief 
Counsels the authority delegated to the General Counsel by Amendment 1-
41 to part 1 of title 49, Code of Federal Regulations, 35 FR 17658, 
November 17, 1970, as follows:
    Section 855 of the Revised Statutes, as amended by Public Law 91-
393, 84 Stat. 835 (40 U.S.C. 255) authorizes the Attorney General to 
delegate to other departments and agencies his authority to give written 
approval of the sufficiency to the title to land being acquired by the 
United States. The Attorney General has delegated to the Assistant 
Attorney General in charge of the Land and Natural Resources Division 
the authority to make delegations under that law to other Federal 
departments and agencies (28 CFR 0.66). The Assistant Attorney General, 
Land and Natural Resources Division, has further delegated certain 
responsibilities in connection with the approval of the sufficiency of 
the title to land to the Department of Transportation as follows:

 Delegation to the Department of Transportation for the Approval of the 
        Title to Lands Being Acquired for Federal Public Purposes

    Pursuant to the provision of Public Law 91-393, approved September 
1, 1970, 84 Stat. 835, amending R.S. 355 (40 U.S.C. 255), and acting 
under the provisions of Order No. 440-70 of the Attorney General, dated 
October 2, 1970, the responsibility for the approval of the sufficiency 
of the title to land for the purpose for which the property is being 
acquired by purchase or condemnation by the United States for the use of 
your Department is, subject to the general supervision of the Attorney 
General and to the following conditions, hereby delegated to your 
Department.
    This delegation of authority is further subject to:
    1. Compliance with the regulations issued by the Assistant Attorney 
General on October 2, 1970, a copy of which is enclosed.
    2. This delegation is limited to:
    (a) The acquisition of land for which the title evidence, prepared 
in compliance with these regulations, consists of a certificate of 
title, title insurance policy, or an owner's duplicate Torrens 
certificate of title.
    (b) The acquisition of lands valued at $100,000 or less, for which 
the title evidence consists of abstracts of title or other types of 
title evidence prepared in compliance with said regulations.
    As stated in the above-mentioned Act, any Federal department or 
agency which has been delegated the responsibility to approve land 
titles under the Act may request the Attorney General to render his 
opinion as to the validity of the title to any real property or interest 
therein, or may request the advice or assistance of the Attorney General 
in connection with determinations as to the sufficiency of titles.
    The Chief Counsels of the Federal Aviation Administration, Federal 
Highway Administration, Federal Railroad Administration, National 
Highway Traffic Safety Administration, Federal Transit Administration, 
the Saint Lawrence Seaway Development Corporation, Maritime 
Administration, and Research and Innovative Technology Administration 
are hereby authorized to approve the sufficiency of the title to land 
being acquired by purchase or condemnation by the United States for the 
use of their respective organizations. This delegation is subject to the 
limitations imposed by the Assistant Attorney General, Land and Natural 
Resources Division, in his delegation to the Department

[[Page 52]]

of Transportation. Redelegation of this authority may only be made by 
the Chief Counsels to attorneys within their respective organizations.
    If the organization does not have an attorney experienced and 
capable in the examination of title evidence, a Chief Counsel may, with 
the concurrence of the General Counsel, request the Attorney General to 
(1) furnish an opinion as to the validity of a title to real property or 
interest therein, or (2) provide advice or assistance in connection with 
determining the sufficiency of the title.



PART 3_OFFICIAL SEAL--Table of Contents



    Authority: 49 U.S.C. 102(e).

    Source: Amdt. 3-3, 45 FR 75666, Nov. 17, 1980, unless otherwise 
noted.



Sec.  3.1  Description.

    The official seal of the Department of Transportation is described 
as follows: A white abstract triskelion figure signifying motion appears 
within a circular blue field. The figure is symmetrical. The three 
branches of the figure curve outward in a counter-clockwise direction, 
each tapering almost to a point at the edge of the field. Surrounding 
the blue circle is a circular ring of letters. The upper half of the 
ring shows the words ``Department of Transportation''. The lower half of 
the ring shows the words ``United States of America''. The letters may 
be shown in either black or medium gray. The official seal of the 
Department is modified when embossed. It appears below in black and 
white.
[GRAPHIC] [TIFF OMITTED] TC02FE91.096



PART 5_ADMINISTRATIVE PROCEDURES--Table of Contents



                            Subpart A_General

Sec.
5.1 Applicability.

                     Subpart B_Rulemaking Procedures

5.3 Petitions.
5.5 Public contacts in informal rulemaking.
5.7 Policy updates and revisions.
5.9 Disclaimer.

    Authority: 49 U.S.C. 322(a).

    Source: 86 FR 17294, Apr. 2, 2021, unless otherwise noted.



                            Subpart A_General



Sec.  5.1  Applicability.

    (a) This part prescribes general procedures that apply to 
rulemakings of the U.S. Department of Transportation (the Department or 
DOT), including each of its operating administrations (OAs) and all 
components of the Office of Secretary of Transportation (OST).
    (b) For purposes of this part, Administrative Procedure Act (APA) is 
the Federal statute, codified in scattered sections of chapters 5 and 7 
of title 5, United States Code, that governs procedures for agency 
rulemaking and adjudication and provides for judicial review of final 
agency actions.



                     Subpart B_Rulemaking Procedures



Sec.  5.3  Petitions.

    (a) Any person may petition an OA or OST component with rulemaking 
authority to:
    (1) Issue, amend, or repeal a rule, as defined in 5 U.S.C. 551; or
    (2) Issue an exemption, either permanently or temporarily, from any 
requirements of a rule, consistent with applicable statutory or 
regulatory provisions.
    (b) When an OA or OST component receives a petition under this 
section, the petition should be filed with the Docket Clerk in a timely 
manner. If a petition is filed directly with the Docket Clerk, the 
Docket Clerk will submit the petition in a timely manner to the

[[Page 53]]

OA or component of OST with regulatory responsibility over the matter 
described in the petition.
    (c) The OA or component of OST should provide clear instructions on 
its website to members of the public regarding how to submit petitions, 
including, but not limited to, an email address or Web portal where 
petitions can be submitted, a mailing address where hard copy requests 
can be submitted, and an office responsible for coordinating such 
requests.
    (d) Unless otherwise provided by statute or in OA regulations or 
procedures, the following procedures apply to the processing of 
petitions for rulemaking or exemption:
    (1) Contents. Each petition filed under this section must:
    (i) Be submitted, either by paper submission to the U.S. Department 
of Transportation, Docket Operations, West Building Ground Floor, Room 
W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590, or 
electronically by emailing: [email protected];
    (ii) Describe the nature of the request and set forth the text or 
substance of the rule, or specify the rule that the petitioner seeks to 
have issued, amended, exempted, or repealed, as the case may be;
    (iii) Explain the interest of the petitioner in the action 
requested, including, in the case of a petition for an exemption, the 
nature and extent of the relief sought and a description of the persons 
to be covered by the exemption;
    (iv) Contain any information and arguments available to the 
petitioner to support the action sought; and
    (v) In the case of a petition for exemption, unless good cause is 
shown in that petition, be submitted at least 60 days before the 
proposed effective date of the exemption, as appropriate.
    (2) Processing. Each petition received under this section is 
referred to the head of the office responsible for the subject matter of 
that petition, and the Office of Regulation.
    (3) Grants. If the OA or component of OST with regulatory 
responsibility over the matter described in the petition determines that 
the petition contains adequate justification, it may request the 
initiation of a rulemaking action in accordance with departmental 
procedures or grant the petition, as appropriate.
    (4) Denials. If the OA or component of OST determines that the 
petition is not justified, the OA or component of OST denies the 
petition in coordination with the Office of Regulation.
    (5) Notification. Whenever the OA or OST component determines that a 
petition should be granted or denied, and after consultation with the 
Office of Regulation in the case of denial, the office concerned 
prepares a notice of that grant or denial for issuance to the 
petitioner, and issues it to the petitioner.



Sec.  5.5  Public contacts in informal rulemaking.

    (a) Agency contacts with the public during informal rulemakings 
conducted in accordance with 5 U.S.C. 553. (1) DOT personnel may have 
meetings or other contacts with interested members of the public 
concerning an informal rulemaking under 5 U.S.C. 553 or similar 
procedures at any stage of the rulemaking process, provided the 
substance of material information submitted by the public that DOT 
relies on in proposing or finalizing the rule is adequately disclosed 
and described in the public rulemaking docket such that all interested 
parties have notice of the information and an opportunity to comment on 
its accuracy and relevance.
    (2) During the pendency of a rulemaking proceeding, DOT personnel 
must avoid giving persons outside the executive branch information 
regarding the rulemaking that is not available generally to the public.
    (3) If DOT receives an unusually large number of requests for 
meetings with interested members of the public during the comment period 
for a proposed rule or after the close of the comment period, the 
issuing OA or component of OST should consider whether there is a need 
to extend or reopen the comment period, to allow for submission of a 
second round of ``reply comments,'' or to hold a public meeting on the 
proposed rule.
    (4) If the issuing OA or OST component meets with interested persons 
on the rulemaking after the close of the comment period, it should be 
open to

[[Page 54]]

giving other interested persons a similar opportunity to meet.
    (5) If DOT learns of significant new information, such as new 
studies or data, after the close of the comment period that the issuing 
OA or OST component wishes to rely upon in finalizing the rule, the OA 
or OST component should reopen the comment period to give the public an 
opportunity to comment on the new information. If the new information is 
likely to result in a change to the rule that is not within the scope of 
the notice of proposed rulemaking (NPRM), the OA or OST component should 
consider issuing a supplemental NPRM to ensure that the final rule 
represents a logical outgrowth of DOT's proposal.
    (b) [Reserved]



Sec.  5.7  Policy updates and revisions.

    This subpart shall be reviewed from time to time to reflect 
improvements in the rulemaking process or changes in Administration 
policy.



Sec.  5.9  Disclaimer.

    This subpart is intended to improve the internal management of the 
Department. It is not intended to, and does not, create any right or 
benefit, substantive or procedural, enforceable at law or in equity by 
any party against the United States, its agencies or other entities, 
officers or employees, or any other person. In addition, this subpart 
shall not be construed to create any right to judicial review involving 
the compliance or noncompliance with this subpart by the Department, its 
OAs or OST components, its officers or employees, or any other person.



PART 6_IMPLEMENTATION OF EQUAL ACCESS TO JUSTICE ACT IN AGENCY PROCEEDINGS-
-Table of Contents



                      Subpart A_General Provisions

Sec.
6.1 Purpose of these rules.
6.3 Applicability.
6.5 Proceedings covered.
6.7 Eligibility of applications.
6.9 Standards for awards.
6.11 Allowable fees and expenses.
6.13 Delegations of authority.

             Subpart B_Information Required from Applicants

6.17 Contents of application.
6.19 Net worth exhibit.
6.21 Documentation of fees and expenses.

            Subpart C_Procedures for Considering Applications

6.23 Filing and service of documents.
6.25 Answer to application.
6.27 Comments by other parties.
6.29 Settlement.
6.31 Further proceedings.
6.33 Decision.
6.35 Agency review.
6.37 Judicial review.
6.39 Payment of award.

    Authority: 5 U.S.C. 504; 28 U.S.C. 2412.

    Source: 48 FR 1070, Jan. 10, 1983, unless otherwise noted.



                      Subpart A_General Provisions



Sec.  6.1  Purpose of these rules.

    The Equal Access to Justice Act, 5 U.S.C. 504 (called ``the Act'' in 
this part), provides for the award of attorney fees and other expenses 
to eligible individuals and entities who are parties to certain 
administrative proceedings (called ``adversary adjudications'') before 
government agencies, such as the Department of Transportation or any of 
its operating administrations. The rules in this part describe the 
parties eligible for awards and the proceedings that are covered. They 
also explain how to apply for awards, and the procedures and standards 
that this agency will use to make them. The use of the term 
``Department'', in this rule, will be understood to mean the Department 
of Transportation or any of its operating administrations, unless 
otherwise specified. The term ``agency counsel'' will be understood to 
mean counsel for the Department of Transportation or any of its 
operating administrations.

[48 FR 1070, Jan. 10, 1983, as amended at 62 FR 19233, Apr. 21, 1997]



Sec.  6.3  Applicability.

    Section 6.9(a) applies to any adversary adjudication pending before 
the Department on or after October 1, 1981. In addition, applicants for 
awards must also meet the standards of Sec.  6.9(b) for

[[Page 55]]

any adversary adjudication commenced on or after March 29, 1996.

[62 FR 19233, Apr. 21, 1997]



Sec.  6.5  Proceedings covered.

    (a) The Act applies to adversarial adjudications conducted by the 
Department of Transportation. These are adjudications under 5 U.S.C. 554 
in which the position of the Department is represented by an attorney or 
other representative who enters an appearance and participates in the 
proceeding. Coverage of the Act begins at designation of a proceeding or 
issuance of a charge sheet. Any proceeding in which the Department may 
prescribe or establish 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.'' For the Department of 
Transportation, the types of proceedings covered include, but may not be 
limited to: National Highway Traffic Safety Administration (NHTSA) 
automotive fuel economy enforcement under 49 CFR part 511; Federal Motor 
Carrier Safety Administration (FMCSA) enforcement of motor carrier 
safety regulations under 49 CFR 386; and the Department's aviation 
economic enforcement proceedings conducted by its Office of Aviation 
Enforcement and Proceedings pursuant to 14 CFR Chapter II. Also covered 
is any hearing conducted under Chapter 38 of title 31 of the U.S. Code 
or the Religious Freedom Restoration Act of 1993 (42 U.S.C. 2000bb et 
seq.).
    (b) If a proceeding includes both matters covered by the Act and 
matters specifically excluded from coverage, any award made will include 
only fees and expenses related to covered issues.

[48 FR 1070, Jan. 10, 1983, as amended at 62 FR 19233, Apr. 21, 1997; 81 
FR 71385, Oct. 17, 2016]



Sec.  6.7  Eligibility of applications.

    (a) To be eligible for an award of attorney fees and other expenses 
under the Act, the applicant must be a party to an adversary 
adjudication for which it seeks an award. The term ``party'' is defined 
in 5 U.S.C. 504(b)(1)(B). The applicant must show that it meets all 
conditions of eligibility set out in this subpart and in paragraph (b) 
of this section.
    (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 as 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 a net worth of not 
more than $5 million and not more than 500 employees.
    (5) Any other partnership, corporation, association, or public or 
private organization with a net worth of not more than $7 million and 
not more than 500 employees.
    (6) For the purposes of Sec.  6.9(b), eligible applicants include 
small entities as defined in 5 U.S.C. 601.
    (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 designated.
    (d) An applicant who owns an unincorporated business will be 
considered 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 number of employees of an applicant includes all persons who 
regularly perform services for remuneration for the applicant, under the 
applicant's direction and control. Part-time employees shall be included 
on a proportional basis.
    (f) The net worth and number of employees of the applicant and all 
of its affiliates shall be aggregated to determine eligibility. Any 
individual, corporation or other entity that directly

[[Page 56]]

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 administrative law judge 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 administrative law judge 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.
    (h) An applicant who appears pro se in a proceeding is ineligible 
for award of attorney fees. However, eligibility for other expenses is 
not affected by pro se representation.

[48 FR 1070, Jan. 10, 1983, as amended at 62 FR 19234, Apr. 21, 1997]



Sec.  6.9  Standards for awards.

    (a) An eligible applicant may receive an award for fees and expenses 
incurred by that party in connection with a decision in favor of the 
applicant in a proceeding covered by this Part, unless the position of 
the Department over which the applicant has prevailed was substantially 
justified or special circumstances make the award sought unjust. The 
burden of proof that an award should not be made to an eligible 
applicant is on the Department where it has initiated the proceeding. No 
presumption arises that the Department's position was not substantially 
justified simply because the Department did not prevail. Whether or not 
the position of the Department was substantially justified shall be 
determined on the basis of the administrative record, as a whole, in the 
adversary adjudication for which fees and other expenses are sought. The 
``position of the Department'' means, in addition to the position taken 
by the agency in the adversary adjudication, the action or failure to 
act by the Department upon which the adversary adjudication may be 
based.
    (b) In the context of a Departmental proceeding to enforce a party's 
compliance with a statutory or regulatory requirement, if the demand by 
the Department is substantially in excess of the amount awarded to the 
government pursuant to the decision of the adjudicative officer and is 
unreasonable when compared with such decision, under the facts and 
circumstances of the case, the adjudicative officer shall award to an 
eligible applicant party the fees and expenses related to defending 
against the excessive demand, unless the applicant party has committed a 
willful violation of law or otherwise acted in bad faith, or special 
circumstances make an award unjust. Fees and expenses awarded under this 
paragraph shall be paid only as a consequence of appropriations provided 
in advance. As used in this section, ``demand'' means the express demand 
of the Department which led to the adversary adjudication, but does not 
include a recitation by the Department of the maximum statutory penalty
    (i) In the administrative complaint, or
    (ii) Elsewhere when accompanied by an express demand for a lesser 
amount.
    (c) The decision of the Department on the application for fees and 
other expenses shall be the final administrative decision under this 
section.
    (d) An award will be reduced or denied if the applicant has unduly 
or unreasonably protracted the proceeding.

[62 FR 19234, Apr. 21, 1997]



Sec.  6.11  Allowable fees and expenses.

    (a) Awards will be based on rates customarily charged by persons 
engaged in the business of acting as attorneys, agents or expert 
witnesses.
    (b) No award for the fee of an attorney or agent under these rules 
may exceed $125.00 per hour. This amount shall include all other 
expenses incurred by the attorney or agent in connection with the case. 
No award to compensate an expert witness may exceed the highest market 
rate at which the Department pays expert witnesses, or $24.09 per hour, 
whichever is less.

[[Page 57]]

    (c) In determining the reasonableness of the fee sought for an 
attorney, agent or expert witness, the administrative law judge shall 
consider the following:
    (1) If the attorney, agent or witness is in private practice, his or 
her customary fee for similar services, or, if an employee of the 
applicant, the fully allocated cost of the services;
    (2) The prevailing rate for similar services in the community in 
which the attorney, agent or witness ordinarily performs services;
    (3) The time actually spent in the representation of the applicant;
    (4) The time reasonably spent in light of the difficulty or 
complexity of the issues in the proceeding; and
    (5) Such other factors as may bear on the value of the services 
provided.
    (d) The reasonable cost of any study, analysis, engineering report, 
test, project or similar matter prepared on behalf of a party may be 
awarded, to the extent that the charge for the service does not exceed 
the prevailing rate for similar services, and the study or other matter 
was necessary for preparation of the applicant's case.
    (e) Fees may be awarded only for work performed after designation of 
a proceeding.

[48 FR 1070, Jan. 10, 1983, as amended at 62 FR 19234, Apr. 21, 1997]



Sec.  6.13  Delegations of authority.

    The Secretary of Transportation delegates to the head of each 
operating administration of this Department the authority to take final 
action, other than rulemaking, on matters pertaining to the Act in 
actions that require section 554 proceedings. The head of each operating 
administration may redelegate this authority.



             Subpart B_Information Required from Applicants



Sec.  6.17  Contents of application.

    (a) An application for an award of fees and expenses under the Act 
shall identify the applicant and the proceeding for which an award is 
sought. The application shall show that the applicant has prevailed and 
identify the position of an agency or agencies in the proceeding that 
the applicant alleges was not substantially justified. Unless the 
applicant is an individual, the application shall also state that it did 
not have more than 500 employees at the time the proceeding was 
initiated, giving the number of employees of the applicant and 
describing briefly the type and purpose of its organization or business.
    (b) The application shall also include a statement that the 
applicant's net worth does not exceed $1 million (if an individual) or 
$5 million (for all other applicants, including their affiliates). 
However, an applicant may omit this statement if:
    (1) It attaches a copy of a ruling by the Internal Revenue Service 
that it qualifies as an organization described in section 501(c)(3) of 
the Internal Revenue Code (26 U.S.C. 501(c)(3)) or, in the case of a 
tax-exempt organization not required to obtain a ruling from the 
Internal Revenue Service on its exempt status, a statement that 
describes the basis for the applicant's belief that it qualifies under 
such section; or
    (2) It states that it is a cooperative association as defined in 
section 15(a) of the Agricultural Marketing Act (12 U.S.C. 114j(a)).
    (c) The application shall state the amount of fees and expenses for 
which an award is sought.
    (d) The application may also include any other matters that the 
applicant wishes this agency to consider in determining whether and in 
what amount an award should be made.
    (e) The application shall be signed by the applicant or an 
authorized officer or attorney of the applicant. It shall also contain 
or be accompanied by a written verification under oath or under penalty 
of perjury that the information provided in the application is true and 
correct.
    (f) If the applicant is a partnership, corporation, association, or 
organization, or a sole owner of an unincorporated business, the 
application shall state that it did not have more than 500 employees at 
the time the proceeding was initiated, giving the number of its 
employees and describing briefly the type and purpose of its 
organization or business.

[[Page 58]]



Sec.  6.19  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 this part) when the proceeding was designated. If any 
individual, corporation, or other entity directly or indirectly controls 
or owns a majority of the voting shares or other interest of the 
applicant, or if the applicant directly or indirectly owns or controls a 
majority of the voting shares or other interest of any corporation or 
other entity, the exhibit must include a showing of the net worth of all 
such affiliates or of the applicant including the affiliates. 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 subpart. The administrative law 
judge may require an applicant to file additional information to 
determine its eligibility for an award.
    (b) The net worth exhibit shall describe any transfers of assets 
from, or obligations incurred by, the applicant or any affiliate, 
occurring in the one-year period prior to the date on which the 
proceeding was initiated, that reduced the net worth of the applicant 
and its affiliates below the applicable net worth ceiling. If there were 
no such transactions, the applicant shall so state.
    (c) The net worth exhibit shall be included in the public record of 
the proceeding.



Sec.  6.21  Documentation of fees and expenses.

    (a) The application shall be accompanied by full documentation of 
the fees and expenses, including the cost of any study, analysis, 
engineering report, test, project or similar matter, for which an award 
is sought.
    (b) The documentation shall include an affidavit from any attorney, 
agent, or expert witness representing or appearing in behalf of the 
party, stating the actual time expended and the rate at which fees and 
other expenses were computed and describing the specific services 
performed.
    (1) The affidavit shall state the services performed. In order to 
establish the hourly rate, the affidavit shall state the hourly rate 
which is billed and paid by the majority of clients during the relevant 
time periods.
    (2) If no hourly rate is paid by the majority of clients because, 
for instance, the attorney or agent represents most clients on a 
contingency basis, the attorney or agent shall provide information about 
two attorneys or agents with similar experience, who perform similar 
work, stating their hourly rate.
    (c) The documentation shall also include a description of any 
expenses for which reimbursement is sought and a statement of the 
amounts paid and payable by the applicant or by any other person or 
entity for the services provided.
    (d) The administrative law judge may require the applicant to 
provide vouchers, receipts, or other substantiation for any expenses 
claimed.
    (e) The administrative law judge may, within his or her discretion, 
make a determination as to whether a study, conducted by the applicant, 
was necessary to the preparation of the applicant's case.



            Subpart C_Procedures for Considering Applications



Sec.  6.23  Filing and service of documents.

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



Sec.  6.25  Answer to application.

    (a) Within 30 calendar days after service of an application, the 
agency counsel may file an answer to the application. Unless the agency 
counsel requests an extension of time for filing or files a statement of 
intent to negotiate under paragraph (b) of this section, failure to file 
an answer within the 30-day period may be treated as a consent to the 
award request.

[[Page 59]]

    (b) If agency counsel and applicant believe that they can reach a 
settlement concerning the award, the agency counsel may file a statement 
of intent to negotiate. The filing of such a statement shall extend the 
time for filing an answer an additional 30 days.
    (c) The answer shall explain in detail any objections to the award 
requested and identify the facts relied on in support of the 
Department's position. If the answer is based on any alleged facts not 
already in the record of the proceeding, the Department shall include 
with the answer either supporting affidavits or a request for further 
proceedings under Sec.  6.3.

[48 FR 1070, Jan. 10, 1983, as amended at 62 FR 19234, Apr. 21, 1997]



Sec.  6.27  Comments by other parties.

    Any party to a proceeding, other than the applicant and the 
Department may file comments on an application within 30 days after it 
is served or on an answer within 15 days after it is served. A 
commenting party may not participate further in proceedings on the 
application.



Sec.  6.29  Settlement.

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



Sec.  6.31  Further proceedings.

    (a) Ordinarily, the determination of an award will be made on the 
basis of the written record. However, on request of either the applicant 
or agency counsel, or on his or her own initiative, the administrative 
law judge may order further proceedings, such as an informal conference, 
oral argument, additional written submissions or an evidentiary hearing.

Such further proceedings shall be held only when necessary for full and 
fair resolution of the issues arising from the application, and shall be 
conducted as promptly as possible.
    (b) A request that the administrative law judge order further 
proceedings under this section shall specifically identify the 
information sought or the disputed issues and shall explain why the 
additional proceedings are necessary to resolve the issues.



Sec.  6.33  Decision.

    The administrative law judge shall issue an initial decision on the 
application as soon as possible after completion of proceedings on the 
application. 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 or any award made among the agencies, and shall explain the 
reasons for the allocation made.



Sec.  6.35  Agency review.

    Where Department review of the underlying decision is permitted, 
either the applicant or agency counsel, may seek review of the initial 
decision on the fee application, or the Department may decide to review 
the decision on its own initiative. If neither the applicant nor the 
agency counsel seeks review within 30 days after the decision is issued, 
it shall become final.



Sec.  6.37  Judicial review.

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



Sec.  6.39  Payment of award.

    An applicant seeking payment of an award from the Department of 
Transportation or any of its operating administrations under this part 
shall submit a copy of the Department of Transportation's or any of its 
operating administration's final decisions granting the award, 
accompanied by a statement that the applicant will not seek review of 
the decision in the United

[[Page 60]]

States courts. The copy of the decision and the statement should be 
submitted to the head of the affected operating administration or the 
Secretary of Transportation, where the Department of Transportation, 
Office of the Secretary, has initiated the proceedings.



PART 7_PUBLIC AVAILABILITY OF INFORMATION--Table of Contents



                      Subpart A_General Provisions

Sec.
7.1 General.
7.2 Definitions.

         Subpart B_Information Required To Be Made Public by DOT

7.11 What records are published in the Federal Register, and how are 
          they accessed?
7.12 What records are available in reading rooms, and how are they 
          accessed?
7.13 How are copies of publicly available records obtained?
7.14 Redaction of Information That is Exempt from Disclosure.
7.15 Protection of Records.

         Subpart C_Availability of Reasonably Described Records

                  Under the Freedom of Information Act

7.21 What does this subpart cover?
7.22 Who administers this subpart?
7.23 What limitations apply to disclosure?
7.24 How do I submit a FOIA request?
7.25 How does DOT handle first-party requests?
7.26 To what extent and in what format are records searched and made 
          available?
7.27 What are the designated DOT FOIA Requester Service Centers?
7.28 How does DOT handle requests that concern more than one Government 
          agency?
7.29 When and how does DOT consult with submitters of commercial 
          information?

                          Subpart D_Time Limits

7.31 What time limits apply to DOT with respect to initial 
          determinations?
7.32 What time limits apply to a requester when appealing DOT's initial 
          or final determination?
7.33 What time limits apply to DOT with respect to administrative 
          appeals (final determinations)?
7.34 When and how are time limits applicable to DOT extended?
7.35 When and how is the twenty day time limit for rendering an initial 
          determination tolled?

                             Subpart E_Fees

7.41 When and how are processing fees imposed for records that are made 
          available under subpart B or processed under subpart C of this 
          part?
7.42 What is DOT's fee schedule for records requested under subpart C of 
          this part?
7.43 When are fees waived or reduced for records requested under subpart 
          C of this part?
7.44 How can I pay a processing fee for records requested under subpart 
          B or subpart C of this part?
7.45 When are pre-payments required for records requested under subpart 
          C of this part, and how are they handled?
7.46 How are late payments handled?

    Authority: 5 U.S.C. 552; 31 U.S.C. 9701; 49 U.S.C. 322; E.O. 12600; 
E.O. 13392.

    Source: 79 FR 16209, Mar. 25, 2014, unless otherwise noted.



                      Subpart A_General Provisions



Sec.  7.1  General.

    (a) This part implements the Freedom of Information Act, 5 U.S.C. 
552, as amended, and prescribes rules governing the public availability 
of Department of Transportation (DOT) records.
    (b) Subpart B of this part contains the DOT regulations concerning 
the public availability of:
    (1) Records and indices that DOT is required to publish in the 
Federal Register pursuant to 5 U.S.C. 552(a)(1) (described in Sec.  
7.11(a)); and
    (2) Records and indices that DOT is required to make available to 
the public in a reading room without need for a specific request, 
pursuant to 5 U.S.C. 552(a)(2) (described in Sec.  7.12(a)).
    (c) Subpart C of this Part contains the DOT regulations concerning 
records that may be requested from DOT under the FOIA, namely, records 
that DOT is not required to publish in the Federal Register or make 
publicly available in a reading room under 5 U.S.C. 552(a)(2)(A), (B), 
(C), and (E) and frequently requested records even if DOT has made them 
publicly available as required under 5 U.S.C. 552(a)(2)(D). Because DOT 
and its components make many of these records available on their Web 
pages (http://www.dot.gov or http://www.dot.gov/foia), requesters may 
find it preferable to obtain such records directly from the

[[Page 61]]

Web pages instead of submitting a FOIA request, if the Web pages contain 
records that meet their needs.
    (d) Subpart D of this part contains the DOT regulations concerning 
time limits applicable to processing requests for records under subpart 
C.
    (e) Subpart E of this part contains the DOT regulations concerning 
processing fees applicable to records made available under subpart B or 
requested under subpart C.



Sec.  7.2  Definitions.

    Unless the context requires otherwise, the following definitions 
apply in this part:
    Act and FOIA mean the Freedom of Information Act, 5 U.S.C. 552, as 
amended.
    Administrator means the head of each Operating Administration.
    Components--see the definition of Department in this section.
    Concurrence means that the approval of the individual being 
consulted is required in order for the subject action to be taken.
    Confidential commercial information means trade secrets and 
confidential, privileged, and/or proprietary business or financial 
information submitted to DOT by any person.
    Consultation has its ordinary meaning; the approval of the 
individual being consulted is not required in order for the subject 
action to be taken.
    Department or DOT means the Department of Transportation, including 
the Office of the Secretary, the Office of Inspector General, and all 
DOT Operating Administrations, any of which may be referred to as a DOT 
component.
    First-party request means a request by an individual for records 
pertaining to that individual.
    Hourly rate means the actual hourly base pay for a civilian 
employee.
    Operating Administration means one of the following components of 
the Department:
    (1) Federal Aviation Administration;
    (2) Federal Highway Administration;
    (3) Federal Motor Carrier Safety Administration;
    (4) Federal Railroad Administration;
    (5) Federal Transit Administration;
    (6) Maritime Administration;
    (7) National Highway Traffic Safety Administration;
    (8) Pipeline and Hazardous Materials Safety Administration; and
    (9) Saint Lawrence Seaway Development Corporation.
    Reading room records are those records required to be made available 
to the public without a specific request under 5 U.S.C. 552(a)(2), as 
described in Sec.  7.12.
    Record includes any writing, drawing, map, recording, diskette, DVD, 
CD-ROM, tape, film, photograph, or other documentary material, 
regardless of medium, by which information is preserved. The term also 
includes any such documentary material stored electronically by 
computer.
    Redact means delete or mark over.
    Representative of the news media means any person or entity that 
gathers information of potential interest to a segment of the public, 
uses its editorial skills to turn the raw materials into a distinct 
work, and distributes that work to an audience. ``News'' means 
information that is about current events or that would be of current 
interest to the public.
    Responsible DOT official means the head of the DOT Operating 
Administration concerned, or the General Counsel or the Inspector 
General, as the case may be, or the designee of any of them authorized 
to take an action under this Part.
    Secretary means the Secretary of Transportation or any individual to 
whom the Secretary has delegated authority in the matter concerned.
    Toll means temporarily stop the running of a time limit.

[79 FR 16209, Mar. 25, 2014, as amended at 82 FR 21139, May 5, 2017]



         Subpart B_Information Required To Be Made Public by DOT



Sec.  7.11  What records are published in the Federal Register, 
and how are they accessed?

    (a) General. Pursuant to 5 U.S.C. 552(a)(1), DOT publishes the 
following records in the Federal Register and makes an index of the 
records publicly available. For purposes of this paragraph, material 
that is reasonably

[[Page 62]]

available to the class of persons affected by the material is considered 
to be published in the Federal Register when the material is 
incorporated by reference with the approval of the Director of the 
Federal Register.
    (1) Descriptions of DOT's organization and the established places at 
which, the officers from whom, and the methods by which, the public may 
secure information and make submittals or obtain decisions;
    (2) Statements of the general course and methods by which DOT's 
functions are channeled and determined, including the nature and 
requirements of all formal and informal procedures available;
    (3) Rules of procedure, descriptions of forms available or the 
places at which forms may be obtained, and instructions as to the scope 
and contents of all papers, reports, or examinations;
    (4) Substantive rules of general applicability adopted as authorized 
by law and statements of general policy or interpretations of general 
applicability formulated and adopted by DOT; and
    (5) Each amendment, revision, or repeal of any material listed in 
paragraphs (a)(1) through (4) of this section.
    (b) Federal Register locations. DOT makes its Federal Register 
publications and indices publicly available at the physical locations 
identified in Sec.  7.12(b). The publications and indices can be 
accessed online at http://www.federalregister.gov.



Sec.  7.12  What records are available in reading rooms, and how are 
they accessed?

    (a) General. Pursuant to 5 U.S.C. 552(a)(2), unless the following 
records are promptly published and offered for sale or published in the 
Federal Register, DOT and its components make the following records, and 
an index to the records, available in a reading room, including an 
electronic reading room if the records were created by DOT on or after 
November 1, 1996:
    (1) Final opinions, including concurring and dissenting opinions, as 
well as orders, made in the adjudication of cases;
    (2) Statements of policy and interpretations that have been adopted 
by DOT;
    (3) Administrative staff manuals and instructions to staff that 
affect a member of the public; and
    (4) Copies of all records, regardless of form or format, that have 
been released to any person under subpart C of this part and that:
    (i) Because of the nature of their subject matter, DOT determines 
have become or are likely to become the subject of subsequent requests 
for substantially the same records; or
    (ii) Have been requested three or more times.
    (5) A general index of the records listed in paragraph (a)(4) of 
this section.
    (b) Reading room locations. DOT makes its reading room records and 
indices (in the form of lists or links) available at https://
www.transportation.gov/foia. To the extent that DOT continues to make 
reading rooms available at a physical location, those locations are 
listed on the DOT FOIA Web site at https://www.transportation.gov/foia.

[79 FR 16209, Mar. 25, 2014, as amended at 82 FR 21139, May 5, 2017; 84 
FR 71733, Dec. 27, 2019; 86 FR 17295, Apr. 2, 2021]



Sec.  7.13  How are copies of publicly available records obtained?

    (a) Copies of materials covered by this subpart that are published 
and offered for sale. Records that are ordinarily made available to the 
public as a part of an information program of the Government, such as 
news releases and pamphlets, may be obtained upon request by contacting 
the appropriate DOT location identified in Sec.  7.12(b) or the sources 
identified in Sec.  7.41(g), and paying the applicable duplication fee 
or purchase price. Whenever practicable, DOT also makes the publications 
available at the appropriate physical locations identified in Sec.  
7.12(b).
    (b) Copies of materials covered by this subpart that are not 
published and offered for sale. Such records may be ordered, upon 
payment of the appropriate fee (if any fee applies), through the 
applicable FOIA Requester Service Center or through the DOT Dockets 
Office identified in Sec.  7.12(b):
    (1) Per copy of each page (not larger than 8.5 x 14 inches) 
reproduced by photocopy or similar means--US $0.10.

[[Page 63]]

    (2) Per copy prepared by any other method of duplication--actual 
direct cost of production.
    (3) Copies are certified upon request by contacting the applicable 
FOIA Requester Service Center listed in Sec.  7.27 and paying the fee 
prescribed in Sec.  7.41(e).



Sec.  7.14  Redaction of information that is exempt from disclosure.

    Whenever DOT determines it to be necessary to prevent the disclosure 
of information required or authorized to be withheld by FOIA or another 
Federal statute (such as, to prevent a clearly unwarranted invasion of 
personal privacy), DOT redacts such information from any record covered 
by this subpart that is published or made available. A full explanation 
of the justification for the deletion accompanies the record published 
or made available.



Sec.  7.15  Protection of records.

    Records made available to the public under this subpart may not be 
removed, altered, destroyed, or mutilated (this excludes duplicate 
copies that are provided to a member of the public to take and keep). 18 
U.S.C. 641 provides for criminal penalties for embezzlement or theft of 
Government records. 18 U.S.C. 2071 provides for criminal penalties for 
the willful and unlawful concealment, mutilation or destruction of, or 
the attempt to conceal, mutilate, or destroy, Government records.



Subpart C_Availability of Reasonably Described Records Under the Freedom 
                           of Information Act



Sec.  7.21  What does this subpart cover?

    (a) Except as otherwise provided in paragraph (b) of this section, 
this subpart applies to reasonably described records that are made 
available in response to written requests under FOIA.
    (b) This subpart does not apply to:
    (1) Records published in the Federal Register.
    (2) Records published and offered for sale.
    (3) Records (other than frequently requested records) made available 
in a reading room.
    (4) Records or information compiled for law enforcement purposes and 
covered by the disclosure exemption described in Sec.  7.23(c)(7)(A) 
if--
    (i) The investigation or proceeding involves a possible violation of 
criminal law; and
    (ii) There is reason to believe that--
    (A) The subject of the investigation or proceeding is not aware of 
its pendency; and
    (B) Disclosure of the existence of the records could reasonably be 
expected to interfere with enforcement proceedings.
    (5) Informant records maintained by any criminal law enforcement 
component of DOT under an informant's name or personal identifier, if 
requested by a third party according to the informant's name or personal 
identifier, unless the informant's status as an informant has been 
officially confirmed.



Sec.  7.22  Who administers this subpart?

    (a) A Chief FOIA Officer is appointed by the Secretary to oversee 
DOT's compliance with the Act pursuant to 5 U.S.C. 552(k). The DOT Chief 
FOIA Officer is designated at 49 CFR 1.27a as the Career Deputy General 
Counsel.
    (b) Each DOT FOIA Requester Service Center listed in Sec.  7.27 is 
the initial point of contact for providing information about its 
processing of requests.
    (c) One or more Public Liaisons are designated by the Chief FOIA 
Officer for each DOT FOIA Requester Service Center listed in Sec.  7.27. 
Public Liaisons assist requesters in reducing delays and resolving 
disputes, as described in 5 U.S.C. 552(k)(6).
    (d) Authority to administer this subpart and to issue determinations 
with respect to initial requests and appeals of initial denials has been 
delegated as follows:
    (1) To the General Counsel for the records of the Office of the 
Secretary by 49 CFR 1.27.
    (2) To the Inspector General for records of the Office of Inspector 
General by 49 CFR 1.74.
    (3) To the Administrator of each DOT Operating Administration for 
records of that component by 49 CFR 1.81.
    (4) Each responsible DOT official may redelegate the authority to 
issue final

[[Page 64]]

determinations of appeals of initial denials to that official's deputy 
or to not more than one other officer who reports directly to the 
official and who is located at the headquarters of that DOT component.
    (5) Any such final determination by an Administrator or an 
Administrator's designee (following an appeal of an initial denial) is 
subject to concurrence by the General Counsel or the General Counsel's 
designee, if the final determination is not to disclose a record or 
portion of a record under this part, or not to grant a request for a fee 
waiver or reduction.
    (6) The Inspector General or the Inspector General's designee must 
consult with the General Counsel or the General Counsel's designee 
before issuing a final determination following an appeal of an initial 
denial, if the final determination is not to disclose a record or 
portion of a record under this part, or not to grant a request for a fee 
waiver or reduction.



Sec.  7.23  What limitations apply to disclosure?

    (a) Policy. It is DOT policy to make its records available to the 
public to the greatest extent possible, in keeping with the spirit of 
FOIA. This includes releasing reasonably segregable and meaningful 
nonexempt information in a document from which exempt information is 
withheld.
    (b) Statutory disclosure requirement. As provided in 5 U.S.C. 
552(a)(3)(A), DOT makes reasonably described records available upon 
request from a member of the public, when the request is submitted in 
accordance with this subpart, except to the extent that the records 
contain information exempt from FOIA's mandate of disclosure as provided 
in 5 U.S.C. 552(b).
    (c) Statutory exemptions. Exempted from FOIA's statutory disclosure 
requirement are matters that are:
    (1) Specifically authorized under criteria established by an 
Executive Order to be kept secret in the interest of national defense or 
foreign policy, and are in fact properly classified pursuant to such 
Executive Order;
    (2) Related solely to the internal personnel rules and practices of 
an agency;
    (3) Specifically exempted from disclosure by statute (other than the 
Privacy Act, 5 U.S.C. 552a, or Open Meetings Act, 5 U.S.C. 552b, as 
amended), in that the statute:
    (i) Requires that the matters be withheld from the public in such a 
manner as to leave no discretion on the issue, establishes particular 
criteria for withholding, or refers to particular types of matters to be 
withheld; or
    (ii) Specifically allows withholding from release under FOIA by 
citation to 5 U.S.C. 552;
    (4) Trade secrets and commercial or financial information obtained 
from a person and privileged or confidential;
    (5) Inter-agency or intra-agency memorandums or letters that would 
not be available by law to a party other than an agency in litigation 
with the agency, provided that the deliberative process privilege shall 
not apply to records created 25 years or more before the date on which 
the records were requested;
    (6) Personnel and medical files and similar files the disclosure of 
which would constitute a clearly unwarranted invasion of personal 
privacy;
    (7) Records or information compiled for law enforcement purposes, 
but only to the extent that the production of such law enforcement 
records or information--
    (i) Could reasonably be expected to interfere with enforcement 
proceedings;
    (ii) Would deprive a person of a right to a fair or an impartial 
adjudication;
    (iii) Could reasonably be expected to constitute an unwarranted 
invasion of personal privacy;
    (iv) Could reasonably be expected to disclose the identity of a 
confidential source, including a State, local, tribal, or foreign agency 
or authority or any private institution which furnished information on a 
confidential basis, and, in the case of a record or information compiled 
by a criminal law enforcement authority in the course of a criminal 
investigation or by an agency conducting a lawful national security 
intelligence investigation, information furnished by a confidential 
source;

[[Page 65]]

    (v) Would disclose techniques and procedures for law enforcement 
investigations or prosecutions or would disclose guidelines for law 
enforcement investigations or prosecutions, if such disclosure could 
reasonably be expected to risk circumvention of the law; or
    (vi) Could reasonably be expected to endanger the life or physical 
safety of any individual;
    (8) Contained in or related to examination, operating, or condition 
reports prepared by, on behalf of, or for the use of an agency 
responsible for the regulation or supervision of financial institutions; 
or
    (9) Geological and geophysical information and data, including maps, 
concerning wells.
    (d) Application of exemptions. DOT shall withhold information 
pursuant to a statutory exemption only if:
    (1) DOT reasonably foresees that disclosure would harm an interest 
protected by an exemption under paragraph (c) of this section; or
    (2) Disclosure is prohibited by law or otherwise exempted from 
disclosure under paragraph (c)(3) of this section.
    (e) Redacted information. DOT indicates the amount of information 
redacted from records released under the FOIA and the exemption(s) 
relied upon in redacting the information, at the place in the record 
where the redaction is made, when technically feasible and when doing so 
does not harm an interest protected by the exemption concerned.
    (f) Non-confidentiality of requests. DOT releases the names of FOIA 
requesters and descriptions of the records they have sought, as shown on 
DOT FOIA logs, except to the extent that a statutory exemption 
authorizes or requires withholding of the log information.

[79 FR 16209, Mar. 25, 2014, as amended at 82 FR 21139, May 5, 2017; 82 
FR 25740, June 5, 2017]



Sec.  7.24  How do I submit a FOIA request?

    (a) Each person desiring access to or a copy of a record covered by 
this subpart must make a written request (via paper, facsimile or 
electronic mail) for the record. The request should--
    (1) Indicate that it is being made under FOIA;
    (2) Display the word ``FOIA'' prominently on the envelope or on the 
subject line of the email or facsimile;
    (3) Be addressed to the appropriate FOIA Requester Service Center as 
set forth in Sec.  7.27;
    (4) State the format (e.g., paper, compact disc) in which the 
information is sought, if the requester has a preference (see Sec.  
7.26(c)); and
    (5) Describe the record or records sought to the fullest extent 
possible. In this regard, the request should describe the subject matter 
of the record and, if known, indicate the date when it was made, the 
place where it was made, and the individual or office that made it. If 
the description does not enable the office handling the request to 
identify or locate the record sought, that office will contact the 
requester for additional information. So that the office may contact the 
requester for additional information, the request should provide the 
requester's complete contact information, including name, address, 
telephone number, and email address, if any.
    (b) With respect to fees, the request must--
    (1) Specify the fee category (commercial use, news media, 
educational institution, noncommercial scientific institution, or other; 
see Sec.  7.42(g)) in which the requester claims the request falls and 
the basis of this claim (see subpart E of this Part for fees and fee 
waiver requirements);
    (2) Support any request for fee waiver by addressing, to the fullest 
extent possible, how the criteria set out in Sec.  7.43(c) for 
establishing that the request is in the public interest have been met, 
if relevant;
    (3) State the maximum amount of fees that the requester is willing 
to pay and/or include a request for a fee waiver or reduction (if a 
maximum amount is not stated by the requester, DOT will assume the 
requester is willing to pay up to US $25);
    (c) If the requester seeks expedited processing at the time of the 
initial request, the request must include a statement supporting 
expedited processing, as set forth in Sec.  7.31(c);

[[Page 66]]

    (d) A request is not considered to be a FOIA request if the record 
or records sought are insufficiently described such that DOT is unable 
to respond as required by FOIA. The twenty Federal working day limit for 
responding to requests, described in Sec.  7.31(a)(2), will not start to 
run until the request is determined by DOT to be sufficiently understood 
to enable DOT to respond as contemplated under FOIA (or would have been 
so determined with the exercise of due diligence by an employee of DOT) 
and is considered received (see paragraph (e)); and
    (e) Provided the request is considered to be a FOIA request (see 
paragraph (d)), the request is considered received when it is first 
received by the FOIA office to which it should have been originally 
sent, as shown in Sec.  7.27, but in any event not later than ten 
Federal working days after it is first received by any DOT FOIA 
Requester Service Center identified in Sec.  7.27.
    (f) As provided in Sec.  7.35, DOT's time limit for responding to a 
FOIA request as set forth in subpart D may be tolled one time to seek 
additional information needed to clarify the request and as often as 
necessary to clarify fee issues with the requester.



Sec.  7.25  How does DOT handle first-party requests?

    (a) DOT processes FOIA requests from first-party requesters in 
accordance with this regulation. DOT also processes such requests in 
accordance with the Privacy Act (5 U.S.C. 552a) if the records reside in 
a Privacy Act system of records (defined in 5 U.S.C. 552a(a)(5) as a 
system from which information is retrieved by the individual's name or 
some other personal identifier). Whichever statute provides greater 
access is controlling.
    (b) First party requesters must establish their identity to DOT's 
satisfaction before DOT will process the request under the Privacy Act. 
DOT may request that first party requesters authenticate their identity 
to assist with our evaluation of the application of FOIA exemptions, 
such as FOIA Exemption 6, 5 U.S.C. 552(b)(6), to the requested records. 
Acceptable methods of authenticating the requester's identity include 
those outlined in DOT's Privacy Act regulations at 49 CFR 10.37.



Sec.  7.26  To what extent and in what format are records searched and
made available?

    (a) Existing records. A request may seek only records that are in 
existence at the time of the request. In determining which records are 
responsive to a request, DOT ordinarily will include only records in its 
possession as of the date it begins its search for them. If any other 
date is used, DOT will inform the requester of that date. DOT considers 
records created after the beginning of the search to be non-responsive 
to a request. A request made under this subpart may not require that new 
records be created in response to the request by, for example, combining 
or compiling selected items from manual files, preparing a new computer 
program, or calculating proportions, percentages, frequency 
distributions, trends, or comparisons. DOT may, in its discretion, 
create a new record as an alternative to disclosing existing records, if 
DOT determines that creating a new record will be less burdensome than 
disclosing large volumes of unassembled material and if the requester 
consents to accept the newly-created record in lieu of the existing 
records.
    (b) Electronic records. DOT makes a reasonable effort to search 
electronic records without significantly interfering with the operation 
of the affected information system.
    (c) Format of production. DOT provides records in the form or format 
sought by the requester, if the records are readily reproducible in that 
form or format.
    (d) Photocopying of records. Original records ordinarily are copied 
except where, in DOT's judgment, copying would endanger the quality of 
the original or raise the reasonable possibility of irreparable harm to 
the record. Original records are not released from DOT custody. DOT may 
make records requested under this subpart available for inspection and 
copying during regular business hours at the place where the records are 
located.

[[Page 67]]

    (e) If no responsive record is located. If DOT cannot locate a 
requested record in agency files after a reasonable search (e.g., 
because the record was never created or was disposed of), DOT so 
notifies the requester.



Sec.  7.27  What are the designated DOT FOIA Requester Service Centers?

    (a) A request for a record under this subpart may be submitted via 
paper, facsimile, or electronic mail to the FOIA Requester Service 
Center designated for the DOT component where the records are located, 
at the electronic mail addresses or facsimile numbers identified at 
https://www.transportation.gov/foia or the mailing addresses indicated 
below (unless a more up-to-date mailing address has been designated at 
https://www.transportation.gov/foia):
    (1) FOIA Requester Service Centers at 1200 New Jersey Avenue SE., 
Washington, DC 20590:
    (i) FOIA Requester Service Center at Federal Highway Administration, 
Room E64-302 (unless a more specific address has been designated by FHWA 
at http://www.fhwa.dot.gov/foia);
    (ii) FOIA Requester Service Center at Federal Motor Carrier Safety 
Administration, Room W66-458;
    (iii) FOIA Requester Service Center at Federal Railroad 
Administration, Room W33-437;
    (iv) FOIA Requester Service Center at Federal Transit 
Administration, Room E42-315;
    (v) FOIA Requester Service Center at Maritime Administration, Room 
W24-233;
    (vi) FOIA Requester Service Center at National Highway Traffic 
Safety Administration, Room W41-311;
    (vii) FOIA Requester Service Center at Office of the Secretary of 
Transportation, Room W94-122;
    (viii) FOIA Requester Service Center at Office of Inspector General, 
Room W70-329;
    (ix) FOIA Requester Service Center at Pipeline and Hazardous 
Materials Safety Administration, Room E23-306; and
    (2) FOIA Requester Service Center at Federal Aviation 
Administration, 800 Independence Avenue SW., Room 306, Washington, DC 
20591 (unless a more specific address has been designated by FAA at 
http://www.faa.dot.gov/foia).
    (3) FOIA Requester Service Center at Associate Administrator's 
Office, Saint Lawrence Seaway Development Corporation, 180 Andrews 
Street, P.O. Box 520, Massena, NY 13662-0520.
    (b) If the person making the request does not know where in DOT the 
records are located, the person may submit the request to the FOIA 
Requester Service Center at Office of the Secretary of Transportation, 
1200 New Jersey Avenue SE., Room W94-122, Washington, DC 20590 or by 
facsimile: 202-366-8536. Requesters also may contact the FOIA Requester 
Service Center at the Office of the Secretary of Transportation at 202-
366-4542 with questions about how to submit a FOIA request or to confirm 
the mailing addresses indicated in this part.
    (c) Requests for records under this part, and FOIA inquiries 
generally, may be made by accessing the DOT Home Page on the Internet 
(https://www.transportation.gov) and clicking on the Freedom of 
Information Act link (https://www.transportation.gov/foia).

[79 FR 16209, Mar. 25, 2014, as amended at 82 FR 21139, May 5, 2017]



Sec.  7.28  How does DOT handle requests that concern more than one
Government agency?

    (a) If the release of a DOT-created record covered by this subpart 
would be of concern to DOT and one or more other Federal agencies, the 
determination as to release is made by DOT, but only after consultation 
with the other concerned agency.
    (b) If the release of a DOT-created record covered by this subpart 
would be of concern to DOT and a State, local, or tribal Government, a 
territory or possession of the United States, or a foreign Government, 
the determination as to release is made by DOT, but only after 
consultation with the other concerned Governmental jurisdiction.
    (c) DOT refers a request for a non-DOT-created record covered by 
this subpart (or the relevant portion thereof) for decision by the 
Federal agency that is best able to determine the record's exemption 
status (usually, this is the agency that originated the

[[Page 68]]

record), but only if that agency is subject to FOIA. DOT makes such 
referrals expeditiously and notifies the requester in writing that a 
referral has been made. DOT informs the requester that the Federal 
agency to which DOT referred the request will respond to the request, 
unless DOT is precluded from attributing the record in question to that 
agency.
    (d) DOT components will handle all consultations and referrals they 
receive from other agencies or DOT components according to the date the 
FOIA request initially was received by the first agency or DOT 
component, not any later date.



Sec.  7.29  When and how does DOT consult with submitters of commercial
information?

    (a) If DOT receives a request for a record that includes information 
designated by the submitter of the information as confidential 
commercial information, or that DOT has some other reason to believe may 
contain information of that type (see Sec.  7.23(c)(4)), DOT notifies 
the submitter expeditiously and asks the submitter to submit any written 
objections to release (unless paragraphs (c) and (d) of this section 
apply). At the same time, DOT notifies the requester that notice and an 
opportunity to comment are being provided to the submitter. To the 
extent permitted by law, DOT affords the submitter a reasonable period 
of time to provide a detailed statement of any such objections. The 
submitter's statement must specify all grounds for withholding any of 
the information. The burden is on the submitter to identify with 
specificity all information for which exempt treatment is sought and to 
persuade the agency that the information should not be disclosed.
    (b) The responsible DOT component, to the extent permitted by law, 
considers carefully a submitter's objections and specific grounds for 
nondisclosure prior to determining whether to disclose commercial 
information. Whenever DOT decides to disclose such information over the 
objection of a submitter, the office responsible for the decision 
provides the submitter with a written notice of intent to disclose, 
which is sent to the submitter a reasonable number of days prior to the 
specified date upon which disclosure is intended. The written notice to 
the submitter includes:
    (1) A statement of the reasons for which the submitter's disclosure 
objections were not accepted;
    (2) A description of the commercial information to be disclosed; and
    (3) A specific disclosure date.
    (c) The notice requirements of this section do not apply if:
    (1) DOT determines that the information should not be disclosed;
    (2) The information lawfully has been published or otherwise made 
available to the public; or
    (3) Disclosure of the information is required by law (other than 5 
U.S.C. 552).
    (d) The procedures established in this section do not apply in the 
case of:
    (1) Information submitted to the National Highway Traffic Safety 
Administration and addressed in 49 CFR part 512.
    (2) Information contained in a document to be filed or in oral 
testimony that is sought to be withheld pursuant to Rule 12 of the Rules 
of Practice in Aviation Economic Proceedings (14 CFR 302.12).
    (3) Information submitted to the Federal Motor Carrier Safety 
Administration and addressed in 49 CFR 389.9.
    (e) Whenever a requester brings suit seeking to compel disclosure of 
confidential commercial information, the responsible DOT component 
promptly notifies the submitter. The submitter may be joined as a 
necessary party in any suit brought against DOT or a DOT component for 
nondisclosure.

[79 FR 16209, Mar. 25, 2014, as amended at 82 FR 21139, May 5, 2017]



                          Subpart D_Time Limits



Sec.  7.31  What time limits apply to DOT with respect to initial 
determinations?

    (a) In general. (1) DOT ordinarily responds to requests according to 
their order of receipt.
    (2) DOT makes an initial determination whether to release a record 
requested pursuant to subpart C of this Part within twenty Federal 
working days after the request is received by

[[Page 69]]

the appropriate FOIA Requester Service Center designated in Sec.  7.27, 
except that DOT may extend this time limit by up to ten Federal working 
days, or longer, in accordance with Sec.  7.34. In addition, DOT may 
toll this time limit one time to seek additional information needed to 
clarify the request and as often as necessary to clarify fee issues with 
the requester (see Sec.  7.35).
    (3) DOT notifies the requester of DOT's initial determination. If 
DOT decides to grant the request in full or in part, DOT makes the 
record (or the granted part) available as promptly as possible and 
provides the requester with written notification of DOT's determination, 
the reasons for the determination, and the right of the requester to 
seek assistance from the FOIA Public Liaison. If DOT denies the request 
in full or in part, because the record (or the denied part) is subject 
to an exemption, is not within DOT's custody and control, or was not 
located following a reasonable search, DOT notifies the requester of the 
denial in writing and includes in the notice the reason for the 
determination, the right of the requester to appeal the determination, 
the name and title of each individual responsible for the initial 
determination to deny the request, and the requester's right to seek 
dispute resolution services from the FOIA Public Liaison or the Office 
of Government Information Services. The denial letter includes an 
estimate of the volume of records or information withheld, in number of 
pages or other reasonable form of estimation. This estimate does not 
need to be provided if the volume is otherwise indicated through 
deletions on records disclosed in part, or if providing an estimate 
would harm an interest protected by an applicable exemption. DOT marks 
or annotates records disclosed in part to show both the amount and 
location of the information deleted whenever practicable (see Sec.  
7.23(d)).
    (b) Multi-track processing of initial requests. (1) A DOT component 
may 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, or based on the number of pages involved.
    (2) A DOT 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 within the 
specified limits of the component's faster track(s). In that event, the 
component contacts the requester either by telephone, letter, facsimile, 
or electronic mail, whichever is most efficient in each case.
    (3) Upon receipt of a request that will take longer than ten days to 
process, a DOT component shall assign an individualized tracking number 
to the request and notify the requester of the assigned number. 
Requesters may contact the appropriate DOT component FOIA Requester 
Service Center to determine the status of the request.
    (c) Expedited processing of initial requests. (1) Requests are 
processed out of order and given expedited treatment whenever a 
compelling need is demonstrated and DOT determines that the compelling 
need involves:
    (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; or
    (ii) A request made by a person primarily engaged in disseminating 
information, with a time urgency to inform the public of actual or 
alleged Federal Government activity.
    (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, the request for expedited processing must be received by 
the FOIA office for the component that maintains the records requested, 
as identified in Sec.  7.27.
    (3) A requester who seeks expedited processing must submit a 
statement, certified to be true and correct to the best of that 
individual's knowledge and belief, explaining in detail the basis for 
requesting expedited processing. A requester within the category in 
paragraph (c)(1)(ii) of this section must establish a particular urgency 
to inform the public about the Government activity involved in the 
request, beyond the public's right to know about Government activity 
generally.

[[Page 70]]

    (4) Within ten calendar days of receipt of a request for expedited 
processing, the proper component decides whether to grant it and 
notifies the requester of the decision. If DOT grants a request for 
expedited treatment, the request is given priority and is processed as 
soon as practicable. If DOT denies a request for expedited processing, 
any appeal of that denial is acted on expeditiously.

[79 FR 16209, Mar. 25, 2014, as amended at 82 FR 21139, May 5, 2017]



Sec.  7.32  What time limits apply to a requester when appealing DOT's
initial or final determination?

    (a) Denial of records request. When the responsible DOT official 
determines that a record request will be denied, in whole or in part, 
because the record is subject to an exemption, is not in DOT's custody 
and control, or was not located following a reasonable search, DOT 
provides the requester with the written statement described in Sec.  
7.31(a)(3).
    (b) Denial of fee waiver. When the responsible DOT official denies, 
in whole or in part, a request for a waiver of fees made pursuant to 
Sec.  7.24(b) or Sec.  7.43(c), DOT provides the requester with written 
notification of that determination, the reasons for the determination, 
the right of the requester to appeal the determination within DOT, and 
the requester's right to seek assistance in resolution of disputes from 
the FOIA Public Liaison or Office of Government Information Services.
    (c) Denial of expedited processing. When the responsible DOT 
official denies a request for expedited processing made pursuant to 
Sec.  7.31(c), DOT provides the requester with written notice of that 
determination, the reasons for the determination, the right to appeal 
the determination within DOT, and the requester's right to seek dispute 
resolution services from the FOIA Public Liaison or Office of Government 
Information Services.
    (d) Right to administrative appeal. Any requester to whom a record 
has not been made available within the time limits established by Sec.  
7.31 and any requester who has been provided a written determination 
pursuant to paragraphs (a), (b), or (c) of this section may appeal to 
the responsible DOT official.
    (1) Each appeal must be made in writing to the appropriate DOT 
appeal official and postmarked or, in the case of electronic or 
facsimile transmissions transmitted, within ninety calendar days from 
the date the initial determination is signed and should include the DOT 
file or reference number assigned to the request and all information and 
arguments relied upon by the person making the request. The contact 
information for all DOT component appeal officials is identified in the 
DOT FOIA Reference Guide available at https://www.transportation.gov/
foia. The envelope in which a mailed appeal is sent or the subject line 
of an appeal sent electronically or by facsimile should be prominently 
marked: ``FOIA Appeal.'' The twenty Federal working day limit described 
in Sec.  7.33(a) will not begin to run until the appeal has been 
received by the appropriate office and identified as an appeal under 
FOIA, or would have been so identified with the exercise of due 
diligence, by a DOT employee.
    (2) Whenever the responsible DOT official determines it is 
necessary, the official may require the requester to furnish additional 
information, or proof of factual allegations, and may order other 
proceedings appropriate in the circumstances. DOT's time limit for 
responding to an appeal may be extended as provided in Sec.  7.34. The 
decision of the responsible DOT official as to the availability of the 
record, the appropriateness of a fee waiver or reduction, or the 
appropriateness of expedited processing, constitutes final agency action 
for the purpose of judicial review.
    (3) The decision of the responsible DOT official to deny a record 
request, to deny a request for a fee waiver or reduction, or to deny a 
request for expedited processing is considered to be a denial by the 
Secretary for the purpose of 5 U.S.C. 552(a)(4)(B).
    (4) When the responsible DOT official denies an appeal, the 
requester is informed in writing of the reasons for the denial of the 
request and the names and titles or positions of each person responsible 
for the determination, and

[[Page 71]]

that judicial review of the determination is available in the United 
States District Court for the judicial district in which the requester 
resides or has his or her principal place of business, the judicial 
district in which the requested records are located, or the District of 
Columbia.
    (e) Right to judicial review. Any requester who has not received an 
initial determination on his or her request within the time limits 
established by Sec.  7.31 can seek immediate judicial review, which may 
be sought without the need to first submit an administrative appeal. Any 
requester who has received a written determination denying his or her 
administrative appeal or who has not received a written determination of 
his or her administrative appeal within the time limits established by 
Sec.  7.33 can seek judicial review. A determination that a record 
request is denied, that a request for a fee waiver or reduction is 
denied, and/or that a request for expedited processing is denied does 
not constitute final agency action for the purpose of judicial review 
unless it is made by the responsible DOT official. Judicial review may 
be sought in the United States District Court for the judicial district 
in which the requester resides or has his or her principal place of 
business, the judicial district in which the requested records are 
located, or the District of Columbia.

[79 FR 16209, Mar. 25, 2014, as amended at 82 FR 21139, May 5, 2017]



Sec.  7.33  What time limits apply to DOT with respect to administrative
appeals (final determinations)?

    (a) In general. (1) DOT ordinarily processes appeals according to 
their order of receipt.
    (2) DOT issues a determination with respect to any appeal made 
pursuant to Sec.  7.32(d) within twenty Federal working days after 
receipt of such appeal, except that in unusual circumstances DOT may 
extend this time limit by up to ten Federal working days in accordance 
with Sec.  7.34(a) or for more than ten Federal working days in 
accordance with Sec.  7.34(b). DOT notifies the requester making the 
appeal immediately, in writing, if the agency takes an extension of 
time. DOT may inform the requester making the appeal, at any time, of 
exceptional circumstances delaying the processing of the appeal (see 
Sec.  7.34(c)).
    (b) Multi-track processing of appeals. (1) A DOT component may use 
two or more processing tracks by distinguishing between simple and more 
complex appeals based on the amount of work and/or time needed to 
process the appeal, or based on the amount of information involved.
    (2) A DOT component using multi-track processing may provide persons 
making appeals in its slower track(s) with an opportunity to limit the 
scope of their appeals in order to qualify for faster processing within 
the specified limits of the component's faster track(s). A component 
doing so will contact the person making the appeal either by telephone, 
letter, facsimile, or electronic mail, whichever is most efficient in 
each case.
    (c) Expedited processing of appeals. (1) An appeal is processed out 
of order and given expedited treatment whenever a compelling need is 
demonstrated and DOT determines that the compelling need involves:
    (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; or
    (ii) A request made by a person primarily engaged in disseminating 
information, with a time urgency to inform the public of actual or 
alleged Federal Government activity.
    (2) A request for expedited processing may be made at the time of 
the appeal or at a later time. For a prompt determination, a request for 
expedited processing must be received by the component that is 
processing the appeal for 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 
individual's knowledge and belief, explaining in detail the basis for 
requesting expedited processing. A requester within the category in 
paragraph (c)(1)(ii) of this section must establish a particular time 
urgency to inform the public about the Government activity involved in 
the request, beyond the public's right to know about

[[Page 72]]

Government activity generally. A person granted expedited processing 
under Sec.  7.31(c) need merely certify that the same circumstances 
apply.
    (4) Within ten calendar days of receipt of a request for expedited 
processing, the proper component will decide whether to grant it and 
will notify the requester of the decision. If a request for expedited 
treatment is granted, the appeal will be given priority and will be 
processed as soon as practicable. If a request for expedited processing 
of an appeal is denied, no further administrative recourse is available.



Sec.  7.34  When and how are time limits applicable to DOT extended?

    (a) In unusual circumstances as specified in this section, DOT may 
extend the time limits prescribed in Sec. Sec.  7.31 and 7.33 by written 
notice to the person making the request or appeal, setting forth the 
reasons for the extension and the date on which a determination is 
expected to be issued. Such notice may not specify a date that would 
result in a cumulative extension of more than ten Federal working days 
without providing the requester an opportunity to modify the request as 
noted in this section. As used in this paragraph, ``unusual 
circumstances'' means, but only to the extent reasonably necessary to 
the proper processing of the particular request:
    (1) The need to search for and collect the requested records from 
field facilities or other establishments that are separate from the 
office processing the request;
    (2) The need to search for, collect, and appropriately examine a 
voluminous amount of separate and distinct records that are demanded in 
a single request; and/or
    (3) The need for consultation, which will be conducted with all 
practicable speed, with any other agency having a substantial interest 
in the determination of the request or among two or more DOT components 
having substantial interest therein.
    (b) When the extension is for more than ten Federal working days, 
the written notice provides the requester with an opportunity to either 
modify the request (e.g., by narrowing the record types or date ranges) 
so that it may be processed within the extended time limit, or arrange 
an alternative time period with the DOT component for processing the 
request (e.g., by prioritizing portions of the request). The written 
notice also will notify the requester of the right to seek dispute 
resolution services from the Office of Government Information Services.
    (c) The DOT component may inform the requester, at any time, of 
exceptional circumstances that apply to the processing of the request or 
appeal (e.g., if the component is reducing a backlog of requests or 
appeals in addition to processing current requests, or is experiencing 
an unexpected deluge of requests or appeals), as provided in 5 U.S.C. 
552(a)(6)(C).
    (d) When a DOT 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, DOT may 
aggregate the requests for the purposes of fees and processing 
activities, which may result in an extension of the processing time. 
Multiple requests involving unrelated matters are not aggregated.

[79 FR 16209, Mar. 25, 2014, as amended at 82 FR 21140, May 5, 2017]



Sec.  7.35  When and how is the twenty day time limit for rendering an
initial determination tolled?

    The twenty Federal working day time period in which to render an 
initial determination will proceed without interruption except as 
provided in the following circumstances:
    (a) DOT may toll the initial twenty Federal working day time period 
one time for the purpose of seeking additional information needed to 
clarify the request. Examples of such instances include but are not 
limited to:
    (1) When clarification is needed with regard to the scope of a 
request; or
    (2) When the description of the record(s) being sought does not 
enable the component handling the request to identify or locate the 
record(s).
    (b) DOT may toll the initial twenty Federal working day time period 
as often as necessary to clarify fee issues with the requester. Examples 
of such

[[Page 73]]

instances include but are not limited to:
    (1) When the requester has not sufficiently identified the fee 
category applicable to the request;
    (2) When the requester has not stated a willingness to pay fees as 
high as anticipated by DOT; or
    (3) When a fee waiver request is denied and the requester has not 
included an alternative statement of willingness to pay fees as high as 
anticipated by DOT.



                             Subpart E_Fees



Sec.  7.41  When and how are processing fees imposed for records that 
are made available under subpart B or processed under subpart C of this
part?

    (a) DOT imposes fees for services that DOT performs for the public 
under subparts B and C of this part. Fees apply to all required and 
special services performed by DOT employees, including employees of non-
appropriated fund activities, and contractors, if utilized.
    (b) DOT may assess a fee for time spent searching for records 
requested under subpart C even if the search fails to locate records or 
the records located are determined to be exempt from disclosure. In 
addition, if records are requested for commercial use, DOT may assess a 
fee for time spent reviewing any responsive records located to determine 
whether they are exempt from disclosure.
    (c) When a request is made under subpart C by a first-party 
requester and DOT processes the request under both FOIA and the Privacy 
Act, DOT determines the fees for records in DOT Privacy Act systems of 
record in accordance with the Privacy Act (as implemented by DOT 
regulations at 49 CFR part 10) rather than the FOIA.
    (d) When DOT aggregates requests made under subpart C (see Sec.  
7.34(d)), DOT apportions fees as set forth in Sec.  7.43(b).
    (e) As a special service, DOT may certify copies of records made 
available under subpart B or released under subpart C, upon request and 
payment of the applicable fee: with the DOT seal (where authorized)--US 
$10; or true copy, without seal--US $5. Certified copies can be 
requested by contacting the applicable FOIA Requester Service Center 
(see Sec.  7.27) or the DOT Dockets Office identified in Sec.  
7.12(b)(1).
    (f) DOT makes transcripts of hearings or oral arguments available 
for inspection only. If transcripts are prepared by a nongovernmental 
contractor and the contract permits DOT to handle the reproduction of 
further copies, DOT assesses duplication fees as set forth in Sec.  
7.42(d). If the contract for transcription services reserves the sales 
privilege to the reporting service, any duplicate copies must be 
purchased directly from the reporting service.
    (g) In the interest of making documents of general interest publicly 
available at as low a cost as possible, DOT arranges alternative sources 
whenever possible. In appropriate instances, material that is published 
and offered for sale may be purchased from the Superintendent of 
Documents, U.S. Government Printing Office, Washington, DC 20402-0001; 
U.S. Department of Commerce's National Technical Information Service 
(NTIS), Springfield, VA 22151; or National Audio-Visual Center, National 
Archives and Records Administration, Capital Heights, MD 20743-3701.



Sec.  7.42  What is DOT's fee schedule for records requested under
subpart C of this part?

    (a) DOT calculates the hourly rates for manual searching, computer 
operator/programmer time, and time spent reviewing records, when 
performed by employees, based on the grades and rates in the General 
Schedule Locality Pay Table for the Locality of Washington-Baltimore-
Northern Virginia, DC-MD-VA-WV-PA, or equivalent grades, plus 16% to 
cover fringe benefits, as follows:
    (1) GS-1 through GS-8 (or equivalent)--Hourly rate of GS-5 step 7 
plus 16%;
    (2) GS-9 through GS-12 (or equivalent)--Hourly rate of GS-10 step 7 
plus 16%;
    (3) GS-13 through GS-14 (or equivalent)--Hourly rate of GS-13 step 7 
plus 16%; and
    (4) GS-15 and above (or equivalent)--Hourly rate of GS-15 step 7 
plus 16%.

[[Page 74]]

    (b) DOT determines the standard fee for a manual or electronic 
search to locate records by multiplying the searcher's hourly rate as 
set forth in paragraph (a) of this section by the time spent conducting 
the search.
    (c) DOT's standard fee for review of records is the reviewer's rate 
set forth in paragraph (a) of this section, multiplied by the time the 
reviewer spent determining whether the located records are responsive to 
the request and whether the responsive records or segregable portions 
are exempt from disclosure, as explained in paragraphs (h), (i), and (j) 
of this section.
    (d) DOT determines the standard fee for duplication of records as 
follows:
    (1) Per copy of each page (not larger than 8.5 x 14 inches) 
reproduced by photocopy or similar means (includes costs of personnel 
and equipment)--US $0.10.
    (2) Per copy prepared by any other method of duplication--actual 
direct cost of production.
    (e) If DOT utilizes a contractor to perform any services described 
in this section, the standard fee is based on the equivalent hourly 
rate(s). DOT does not utilize contractors to discharge responsibilities 
that only DOT may discharge under the FOIA.
    (f) In some cases, depending upon the category of requester and the 
use for which the records are requested, the fees computed in accordance 
with the standard fee schedule in paragraphs (a) through (e) of this 
section are either reduced or not charged, as prescribed by other 
provisions of this subpart.
    (g) For purposes of fees only, there are four categories of FOIA 
requests:
    (1) Requests submitted by a commercial entity and/or for a 
commercial use;
    (2) Requests submitted by an educational or noncommercial scientific 
institution whose purpose is scholarly or scientific research (and not 
for a commercial use);
    (3) Requests submitted by a representative of the news media; and
    (4) All other requests.
    (h) When records are requested by a commercial requester and/or for 
a commercial use, the fees assessed are reasonable standard charges for 
document search, duplication, and review.
    (i) When records are requested by an educational or noncommercial 
scientific institution whose purpose is scholarly or scientific research 
or by a representative of the news media (i.e., for a non-commercial 
use), fees are limited to reasonable standard charges for document 
duplication.
    (j) For any request not described in paragraph (h) or (i) of this 
section, fees are limited to reasonable standard charges for document 
search and duplication.
    (k) Fees under this subpart do not apply to any special study, 
special statistical compilation, table, or other record requested under 
49 U.S.C. 329(c). The fee for the performance of such a service is the 
actual cost of the work involved in compiling the record. All such fees 
received by DOT in payment of the cost of such work are deposited in a 
separate account administered under the direction of the Secretary, and 
may be used for the ordinary expenses incidental to providing the 
information.



Sec.  7.43  When are fees waived or reduced for records requested under
subpart C of this part?

    (a) DOT does not charge fees to any requester making a request under 
subpart C of this part for the following services:
    (1) Services for which the total amount of fees that could be 
charged for the particular request (or aggregation of requests) is less 
than US $20, after taking into account all services that must be 
provided free of charge or at a reduced charge.
    (2) The first two hours of search time, unless the records are 
requested for commercial use.
    (3) Duplication of the first 100 pages (standard paper, not larger 
than 8.5 x 14 inches) of records, unless the records are requested for 
commercial use.
    (4) Review time spent determining whether a record is exempt from 
disclosure, unless the record is requested for commercial use. DOT does 
not charge for review time except with respect to an initial review to 
determine the applicability of a particular exemption to a particular 
record or portion of a record. DOT does not charge for review at the 
administrative appeal

[[Page 75]]

level. However, when records or portions of records withheld under an 
exemption that is subsequently determined not to apply are reviewed 
again to determine the applicability of other exemptions not previously 
considered, this is considered an initial review for purposes of 
assessing a review charge.
    (b) When DOT aggregates requests as provided in Sec.  7.34(d), DOT 
charges each requester a ratable portion of the fees charged for 
combined services rendered on behalf of all requesters.
    (c) DOT waives or reduces the fees described in Sec.  7.42(i) and 
(j) when the requester makes a fee waiver or reduction request as 
provided in Sec.  7.24(b) and establishes that disclosure of the 
information is in the public interest as provided in 5 U.S.C. 552 and 
this paragraph, and the DOT official having initial denial authority 
determines that disclosure of the information is in the public interest 
and is not primarily in the commercial interest of the requester. The 
requester must establish all of the following factors to DOT's 
satisfaction to show that the request is in the public interest:
    (1) That the subject matter of the requested records concerns the 
operations or activities of the Federal Government;
    (2) That the disclosure is likely to contribute to an understanding 
of Federal Government operations or activities;
    (3) That disclosure of the requested information will contribute to 
the understanding of the public at large, as opposed to the 
understanding of the individual requester or a narrow segment of 
interested persons (to establish this factor, the requester must show an 
intent and ability to disseminate the requested information to a 
reasonably broad audience of persons interested in the subject);
    (4) That the contribution to public understanding of Federal 
Government operations or activities will be significant; and
    (5) That the requester does not have a commercial interest that 
would be furthered by the requested disclosure or that the magnitude of 
any identified commercial interest to the requester is not sufficiently 
large in comparison with the public interest in disclosure to render the 
disclosure one that is primarily in the commercial interest of the 
requester.
    (d) DOT furnishes documents without charge or at a reduced charge 
when the official having initial denial authority determines that the 
request concerns records related to the death of an immediate family 
member who was, at the time of death, a DOT employee.
    (e) DOT furnishes documents without charge or at a reduced charge 
when the official having initial denial authority determines that the 
request is by the victim of a crime who seeks the record of the trial at 
which the requester testified.
    (f) Except as provided in paragraphs (f)(1) through (3) of this 
section, DOT does not assess search fees otherwise chargeable under 
Sec.  7.42(h) and (j) or duplication fees otherwise chargeable under 
Sec.  7.42(i) when DOT fails to comply with the time limits under Sec.  
7.31 or Sec.  7.33.
    (1) If DOT has determined that unusual circumstances apply (as 
defined in Sec.  7.34(a)), 5,000 pages or less are necessary to respond 
to the request, and DOT has provided a timely written notice to the 
requester in accordance with Sec.  7.34(a), a failure to comply with the 
time limits under Sec.  7.31 or Sec.  7.33 is excused for an additional 
10 days. If DOT does not comply with the extended time limit, DOT does 
not assess search fees otherwise chargeable under Sec.  7.42(h) and (j) 
or duplication fees otherwise chargeable under Sec.  7.24(i);
    (2) If DOT has determined that unusual circumstances apply (as 
defined under Sec.  7.34(a)) and more than 5,000 pages are necessary to 
respond to the request, DOT may charge search fees under Sec.  7.42(h) 
and (j) or duplication fees under Sec.  7.42(j) if DOT has provided 
timely written notice to the requester in accordance with Sec.  7.34(a) 
and (b), and DOT has discussed with the requester via written mail, 
electronic mail, or telephone (or made not less than three good faith 
attempts to do so) how the requester could effectively limit the scope 
of the request.
    (3) If a court determines that exceptional circumstances exist (as 
that term is defined in 5 U.S.C. 552(a)(6)(C)), failure to comply with 
time limits under Sec.  7.31 or Sec.  7.33 shall be excused for

[[Page 76]]

the length of time provided by the court order.

[79 FR 16209, Mar. 25, 2014, as amended at 82 FR 21140, May 5, 2017]



Sec.  7.44  How can I pay a processing fee for records requested under
subpart B or subpart C of this part?

    Fees typically should be paid online, using a credit card, debit 
card, or electronic check. The DOT FOIA page (http://www.dot.gov/foia) 
has direct links to the electronic payment site. Any fees paid with a 
paper check, draft, or money order must be made payable to the U.S. 
Treasury and delivered as directed by the applicable FOIA Requester 
Service Center identified in Sec.  7.27 (if the fees are for records 
made available under subpart C) or the DOT Dockets Office identified in 
Sec.  7.12(b)(1) (if the fees are for records made available under 
subpart B).



Sec.  7.45  When are pre-payments required for records requested under
subpart C of this part, and how are they handled?

    (a) When DOT estimates that the search charges, review charges, 
duplication fees, or any combination of fees that could be charged to 
the requester will likely exceed US $25, DOT notifies the requester of 
the estimated amount of the fees, unless the requester has previously 
indicated a willingness to pay fees as high as those anticipated. In 
cases where DOT notifies the requester that actual or estimated fees may 
amount to more than US $25, the time limit for responding to the request 
is tolled until the requester has agreed to pay the anticipated total 
fee (see Sec.  7.35). The notice also informs the requester how to 
consult with the appropriate DOT officials with the object of 
reformulating the request to meet his or her needs at a lower cost.
    (b) DOT may require payment of fees prior to actual duplication or 
delivery of any releasable records to a requester. However, advance 
payment, i.e., before work is commenced or continued on a request, is 
not required unless:
    (1) Allowable charges that a requester may be required to pay are 
likely to exceed US $250; or
    (2) The requester has failed to pay within 30 days of the billing 
date fees charged for a previous request to any part of the U.S. 
Government.
    (c) When paragraph (b)(1) of this section applies, DOT notifies the 
requester of the estimated cost. If the requester has a history of 
prompt payment of FOIA fees, the requester must furnish satisfactory 
assurance of full payment of the estimated charges. Otherwise, the 
requester may be required to make advance payment of any amount up to 
the full estimated charges.
    (d) When paragraph (b)(2) of this section applies, DOT requires the 
requester to either demonstrate that the fee has been paid or pay the 
full amount owed, including any applicable interest, late handling 
charges, and penalty charges as discussed in Sec.  7.46. DOT also 
requires such a requester to make an advance payment of the full amount 
of the estimated fee before DOT begins processing a new request or 
continues processing a pending request.
    (e) In the event that a DOT component is required to refund a 
prepayment, the processing of the refund may necessitate collection of 
the requester's Taxpayer Identification Number or Social Security Number 
and direct deposit information (bank routing number and bank account 
number) under 31 U.S.C. 3325, 31 U.S.C. 3332, and 31 CFR Part 208.



Sec.  7.46  How are late payments handled?

    (a) DOT assesses interest on an unpaid bill starting on the 31st day 
following the day on which the notice of the amount due is first mailed 
to the requester. Interest accrues from the date of the notice of amount 
due at the rate prescribed in 31 U.S.C. 3717. Receipt by DOT of a 
payment for the full amount of the fees owed within 30 calendar days 
after the date of the initial billing stops the accrual of interest, 
even if the payment has not been processed.
    (b) If DOT does not receive payment of the fees charged within 30 
calendar days after the date the initial notice of the amount due is 
first mailed to the requester, DOT assesses an administrative charge to 
cover the cost of processing and handling the delinquent

[[Page 77]]

claim. In addition, DOT applies a penalty charge with respect to any 
principal amount of a debt that is more than 90 days past due. Where 
appropriate, DOT uses other steps permitted by Federal debt collection 
statutes, including disclosure to consumer reporting agencies and use of 
collection agencies, to encourage payment of amounts overdue.



PART 8_CLASSIFIED INFORMATION: CLASSIFICATION/DECLASSIFICATION/ACCESS-
-Table of Contents



                            Subpart A_General

Sec.
8.1 Scope.
8.3 Applicability.
8.5 Definitions.
8.7 Spheres of responsibility.

        Subpart B_Classification/Declassification of Information

8.9 Information Security Review Committee.
8.11 Authority to classify information.
8.13 Authority to downgrade or declassify.
8.15 Mandatory review for classification.
8.17 Classification challenges.
8.19 [Reserved]
8.21 Burden of proof.
8.23 Classified information transferred to the Department of 
          Transportation.

                     Subpart C_Access to Information

8.25 Personnel Security Review Board.
8.27 Public availability of declassified information.
8.29 Access by historical researchers and former Presidential 
          appointees.
8.31 Industrial security.

    Authority: E.O. 10450, 18 FR 2489, 3 CFR, 1949-1953 Comp., p. 936, 
amended by E.O. 10491, 18 FR 6583, 3 CFR, 1949-1953 Comp., p. 973, E.O. 
10531, 19 FR 3069, 3 CFR, 1949-1953 Comp., p. 973, E.O. 10548, 19 FR 
4871, 3 CFR, 1954-1958 Comp., p. 200, E.O. 10550, 19 FR 4981, 3 CFR, 
1954-1958 Comp., p. 200, E.O. 11605, 20 FR 2747, 3 CFR, 1971-1975 Comp., 
p. 580, E.O. 11785, 39 FR 20053, 3 CFR, 1971-1975 Comp., p. 874, E.O. 
12107, 44 FR 1055, 3 CFR, 1978 Comp., p. 266; E.O. 12829, 58 FR 3479, 3 
CFR, 1993 Comp., p. 570, amended by E.O. 12885, 58 FR 65863, 3 CFR, 1993 
Comp., p. 684; E.O. 13526, 75 FR 707, 3 CFR, 2010 Comp., p. 298; E.O. 
12968, 3 CFR, 1995 Comp., p. 391, amended by E.O. 13467, 73 FR 38103, 3 
CFR, 2009 Comp., p. 196.

    Source: 62 FR 23661, May 1, 1997, unless otherwise noted.



                            Subpart A_General



Sec.  8.1  Scope.

    This part sets forth procedures for the classification, 
declassification, and availability of information that must be protected 
in the interest of national security, in implementation of Executive 
Order 13526 of December 29, 2010, ``Classified National Security 
Information;'' and for the review of decisions to revoke, or not to 
issue, national security information clearances, or to deny access to 
classified information, under Executive Order 12968 of August 2, 1995, 
``Access to National Security Information,'' as amended by Executive 
Order 13467 of June 30, 2008, ``Reforming Processes Related to 
Suitability for Government Employment, Fitness for Contractor Employees, 
and Eligibility for Access to Classified National Security 
Information.''

[81 FR 45980, July 15, 2016]



Sec.  8.3  Applicability.

    This part applies to all elements of the Department of 
Transportation.



Sec.  8.5  Definitions.

    As used in this part:
    Authorized holder is any individual who has been granted access to 
specific classified information in accordance with Executive Order 13526 
or any successor order.
    Classification means the act or process by which information is 
determined to be classified information.
    Classification levels means the following three levels at which 
information may be classified:
    (a) Top secret. Information that requires the highest degree of 
protection, and the unauthorized disclosure of which could reasonably be 
expected to cause exceptionally grave damage to the national security 
that the original classification authority is able to identify or 
describe.
    (b) Secret. Information that requires a substantial degree of 
protection, and the unauthorized disclosure of which could reasonably be 
expected to cause serious damage to the national security that the 
original classification authority is able to identify or describe.

[[Page 78]]

    (c) Confidential. Information that requires protection and the 
unauthorized disclosure of which could reasonably be expected to cause 
damage to the national security that the original classification 
authority is able to identify or describe.
    Classified information or ``classified national security 
information'' means information that has been determined under Executive 
Order 13526, or any predecessor or successor order, to require 
protection against unauthorized disclosure, and is marked to indicate 
its classified status when in documentary form.
    Clearance means that an individual is eligible, under the standards 
of Executive Orders 10450, 12968, 13467, and appropriate DOT 
regulations, for access to classified information.
    Damage to the national security means harm to the national defense 
or foreign relations of the United States from the unauthorized 
disclosure of information, taking into consideration such aspects of the 
information as the sensitivity, value, utility, and provenance of that 
information.
    Declassification means the authorized change in the status of 
information from classified information to unclassified information.
    Downgrading means a determination by a declassification authority 
that information classified and safeguarded at a specific level shall be 
classified and safeguarded at a lower level.
    Information means any knowledge that can be communicated, or 
documentary material, regardless of its physical form or 
characteristics, that is owned by, produced by or for, or is under the 
control of the United States Government. ``Control'' means the authority 
of the agency that originates information, or its successor in function, 
to regulate access to the information.
    Mandatory declassification review means the review for 
declassification of classified information in response to a request for 
declassification that meets the requirements of section 3.5 of Executive 
Order 13526.
    Original classification means an initial determination that 
information requires, in the interest of national security, protection 
against unauthorized disclosure.
    Original classification authority means an individual authorized in 
writing, either by the President, the Vice President, or by agency heads 
or other officials designated by the President, to classify information 
in the first instance.

[62 FR 23661, May 1, 1997, as amended at 81 FR 45980, July 15, 2016]



Sec.  8.7  Spheres of responsibility.

    (a) Pursuant to section 5.4(d) of Executive Order 13526, and to 
section 6.1 of Executive Order 12968, the Assistant Secretary for 
Administration is hereby designated as the senior agency official of the 
Department of Transportation with assigned responsibilities to assure 
effective compliance with and implementation of Executive Order 13526, 
Executive Order 12968, Office of Management and Budget Directives, the 
regulations in this part, and related issuances.
    (b) In the discharge of these responsibilities, the Assistant 
Secretary for Administration will be assisted by the Director of 
Security , who, in addition to other actions directed by this part, will 
evaluate the overall application of and adherence to the security 
policies and requirements prescribed in this part and who will report 
his/her findings and recommendations to the Assistant Secretary for 
Administration, heads of Departmental elements, and, as appropriate, to 
the Secretary.
    (c) Secretarial Officers and heads of Departmental elements will 
assure that the provisions in this part are effectively administered, 
that adequate personnel and funding are provided for this purpose, and 
that corrective actions that may be warranted are taken promptly.

[62 FR 23661, May 1, 1997, as amended at 81 FR 45980, July 15, 2016]



        Subpart B_Classification/Declassification of Information



Sec.  8.9  Information Security Review Committee.

    (a) The Department of Transportation Information Security Review 
Committee has the authority to:

[[Page 79]]

    (1) Act on all suggestions and complaints not otherwise resolved 
with respect to the Department's administration of Executive Order 13526 
and implementing directives, including those regarding 
overclassification, failure to declassify, or delay in declassifying;
    (2) Act on appeals of requests for classification reviews, and 
appeals of requests for records under 5 U.S.C. 552 (Freedom of 
Information Act) when the initial, and proposed final, denials are based 
on continued classification of the record; and
    (3) Recommend to the Secretary, when necessary, appropriate 
administrative action to correct abuse or violation of any provision of 
Executive Order 12598 and implementing directives.
    (b) The Information Security Review Committee will be composed of 
the Assistant Secretary for Administration, who will serve as Chair; the 
General Counsel; and the Director of Security. When matters affecting a 
particular Departmental component are at issue, the Associate 
Administrator for Administration for that component (or for the Federal 
Aviation Administration, the Associate Administrator for Security and 
Hazardous Materials Safety) will participate as an ad hoc member, 
together with the Chief Counsel of that component. Any regular member 
may designate a representative with full power to serve in his/her 
place.
    (c) In carrying out its responsibilities to review decisions to 
revoke or not to issue clearances, or to deny access to classified 
information, the Committee will establish whatever procedures it deems 
fit.

[62 FR 23661, May 1, 1997, as amended at 81 FR 45981, July 15, 2016]



Sec.  8.11  Authority to classify information.

    (a) Presidential Order of December 29, 2009, ``Original 
Classification Authority'' confers upon the Secretary of Transportation 
the authority to originally classify information as SECRET or 
CONFIDENTIAL with further authorization to delegate this authority.
    (b) The following delegations of authority originally to classify 
information as ``Secret'' or ``Confidential'', which may not be 
redelegated, are hereby made:
    (1) Office of the Secretary of Transportation. The Deputy Secretary; 
Assistant Secretary for Administration; Director of Intelligence, 
Security and Emergency Response; Director of Security.
    (2) Federal Aviation Administration. Administrator; Associate 
Administrator for Security and Hazardous Materials Safety.
    (3) Maritime Administration. Administrator.
    (c) Although the delegations of authority set out in paragraph (b) 
of this section are expressed in terms of positions, the authority is 
personal and is invested only in the individual occupying the position. 
The authority may not be exercised ``by direction of'' a designated 
official. The formal appointment or assignment of an individual to one 
of the identified positions or a designation in writing to act in the 
absence of one of these officials, however, conveys the authority to 
originally classify information as SECRET or CONFIDENTIAL.
    (d) Previous delegations and redelegations of authority within the 
Department of Transportation originally to classify information are 
hereby rescinded.

[62 FR 23661, May 1, 1997, as amended at 76 FR 19708, Apr. 8, 2011; 81 
FR 45981, July 15, 2016]



Sec.  8.13  Authority to downgrade or declassify.

    Information originally classified by the Department may be 
specifically downgraded or declassified by either the official 
authorizing the original classification, if that official is still 
serving in the same position, the originator's current successor in 
function, a supervisory official of either, officials delegated 
declassification authority in writing by the Secretary, or by the 
Departmental Information Security Review Committee.



Sec.  8.15  Mandatory review for classification.

    (a) Mandatory declassification review requests will be processed in 
accordance with 32 CFR 2001.33.

[[Page 80]]

    (b) Except as provided in paragraph b of section 3.5 of Executive 
Order 13526, all information classified by the Department of 
Transportation under Executive Order 13526 or predecessor orders shall 
be subject to a review for declassification if:
    (1) The request for review describes the information with sufficient 
specificity to enable its location with a reasonable amount of effort;
    (2) The information has not been reviewed for declassification 
within the prior two years. If the information has been reviewed within 
the prior two years, or the information is the subject of pending 
litigation, the requestor will be informed of this fact, and of the 
Department's decision not to declassify the information and of his/her 
right to appeal the Department's decision not to declassify the 
information to the Interagency Security Classification Appeals Panel 
(ISCAP);
    (3) The document or material containing the information responsive 
to the request is not contained within an operational file exempted from 
search and review, publication, and disclosure under 5 U.S.C. 552 in 
accordance with law; and
    (4) The information is not the subject of pending litigation.
    (c) All information reviewed for declassification because of a 
mandatory review will be declassified if it does not meet the standards 
for classification in Executive Order 13526. The information will then 
be released unless withholding is otherwise authorized and warranted 
under applicable law.
    (d) Mandatory declassification review requests for information that 
has been classified by the Department of Transportation may be addressed 
to the Director of Security, U.S. Department of Transportation, 1200 New 
Jersey Avenue, Washington, DC 20590. The Director will forward the 
request to the appropriate Departmental Original Classification 
Authority for processing.
    (e) Denied requests may be appealed to the DOT Information Security 
Review Committee (DISRC) through the Director of Security within 60 days 
of receipt of the denial. If the DISRC upholds the denial, it will 
inform the requestor of his or her final appeal rights to the ISCAP.

[81 FR 45981, July 15, 2016]



Sec.  8.17  Classification challenges.

    (a) Authorized holders of information classified by the Department 
of Transportation who, in good faith, believe that its classification 
status is improper are encouraged and expected to challenge the 
classification status of the information before the Original 
Classification Authority (OCA) having jurisdiction over the information. 
A formal challenge must be in writing, but need not be any more specific 
than to question why information is or is not classified, or is 
classified at a certain level.
    (b) Classification challenges to DOT information must be addressed 
to the DOT Original Classification Authority (OCA) who is responsible 
for the information. If unsure of the OCA, address the challenge to the 
DOT Director of Security.
    (c) Classification challenges will be processed according to 32 CFR 
2001.14.

[81 FR 45981, July 15, 2016]



Sec.  8.19  [Reserved]



Sec.  8.21  Burden of proof.

    For the purpose of determinations to be made under Sec. Sec.  8.15 
and 8.17, the burden of proof is on the originating Departmental 
component to show that continued classification is warranted.

[62 FR 23661, May 1, 1997, as amended at 81 FR 45981, July 15, 2016]



Sec.  8.23  Classified information transferred to the Department of
Transportation.

    (a) Classified information officially transferred to the Department 
in conjunction with a transfer of functions, and not merely for storage 
purposes, will be considered to have been originated by the Department.
    (b) Classified information in the custody of the Department 
originated by another department or agency that has ceased to exist and 
for whom there is no successor agency will be deemed to

[[Page 81]]

have been originated by the Department. This information may be 
declassified or downgraded by the Department after consultation with any 
other agency that has an interest in the subject matter of the 
information. Such agency will be allowed 30 calendar days in which to 
express an objection, if it so desires, before action is taken. A 
difference of opinion that cannot be resolved at a lower level will be 
referred to the Departmental Information Security Review Committee, 
which will consult with its counterpart committee for the other agency.
    (c) Classified information transferred to the National Archives and 
Records Administration (NARA) will be declassified or downgraded by the 
Archivist of the United States in accordance with Executive Order 13526, 
directives issued pursuant to Executive Order 13526, Departmental 
classification guides, and any existing procedural agreement between 
NARA and the Department. The Department will take all reasonable steps 
to declassify information contained in records determined to have 
permanent historical value before they are accessioned into the National 
Archives .
    (d) To the extent practicable, the Department will adopt a system of 
records management that will facilitate the public release of documents 
at the time such documents are declassified under the provisions for 
automatic declassification in section 3.3 of Executive Order 13526 and 
its implementing directives. To the maximum extent possible without 
destroying the integrity of the Department's files, all such material 
will be segregated or set aside for public release upon request. The 
Department will cooperate with the Archivist in efforts to establish a 
Government-wide database of information that has been declassified.

[62 FR 23661, May 1, 1997, as amended at 81 FR 45981, July 15, 2016]



                     Subpart C_Access to Information



Sec.  8.25  Personnel Security Review Board.

    (a) The Department of Transportation Personnel Security Review Board 
will, on behalf of the Secretary of Transportation (except in any case 
in which the Secretary personally makes the decision), make the 
administratively final decision on an appeal arising in any part of the 
Department from:
    (1) A decision not to grant access to classified information;
    (2) A decision to revoke access to classified information; or
    (3) A decision under Sec.  8.29 to deny access to classified 
information.
    (b) The Personnel Security Review Board will be composed of:
    (1) Two persons appointed by the Assistant Secretary for 
Administration: One from the Office of Human Resource Management, and 
one, familiar with personnel security adjudication, from the Office of 
Security, who will serve as Chair;
    (2) One person appointed by the General Counsel, who, in addition to 
serving as a member of the Board, will provide to the Board whatever 
legal services it may require;
    (3) One person appointed by the Administrator of the Federal 
Aviation Administration; and
    (4) One person appointed by the Administrator of the Federal Highway 
Administration.
    (5) Any member may designate a representative, meeting the same 
criteria as the member, with full power to serve in his/her place.
    (c) In carrying out its responsibilities to review final decisions 
to revoke or deny access to classified information, the Board will 
establish whatever procedures it deems fit.

[62 FR 23661, May 1, 1997, as amended at 81 FR 45981, July 15, 2016]



Sec.  8.27  Public availability of declassified information.

    (a) It is a fundamental policy of the Department to make information 
available to the public to the maximum extent permitted by law. 
Information that is declassified for any reason loses its status as 
material protected in the interest of national security. Accordingly, 
declassified information will be handled in every respect on the same 
basis as all other unclassified information. Declassified information is 
subject to the Departmental public information policies and procedures,

[[Page 82]]

with particular reference to the Freedom of Information Act (5 U.S.C. 
552) and implementing Departmental regulations (49 CFR Part 7).
    (b) In furtherance of this policy, all classified material produced 
after June 1, 1972 that is of sufficient historical or other value to 
warrant preservation as permanent records in accordance with appropriate 
records administrative standards, and that becomes declassified, will be 
systematically reviewed prior to the end of each calendar year for the 
purpose of making the material publicly available. To the maximum extent 
possible without destroying the integrity of the Department's files, all 
such material will be segregated or set aside for public release upon 
request.



Sec.  8.29  Access by historical researchers and former Presidential
appointees.

    Access to classified information may be granted to historical 
researchers and former Presidents and Vice-Presidents and their 
appointees as outlined in Executive Order 13526 or its successor order. 
The general guidelines for access to classified information are 
contained in Executive Order 12968.

[81 FR 45982, July 15, 2016]



Sec.  8.31  Industrial security.

    (a) Background. The National Industrial Security Program was 
established by Executive Order 12829 of January 6, 1993 for the 
protection of information classified pursuant to Executive Order 12356 
of April 2, 1982, National Security Information, or its predecessor or 
successor orders, and the Atomic Energy Act of 1954, as amended. The 
Secretary of Defense serves as the Executive Agent for inspecting and 
monitoring contractors, licensees, grantees, and certificate holders 
that require or will require access to, or that store or will store, 
classified information, and for determining the eligibility for access 
to classified information of contractors, licensees, certificate 
holders, and grantees, and their respective employees.
    (b) Implementing regulations. The Secretary of Transportation has 
entered into an agreement for the Secretary of Defense to render 
industrial security services for the Department of Transportation. 
Regulations prescribed by the Secretary of Defense to fulfill the 
provisions of Executive Order 12829 have been extended to protect 
release of classified information for which the Secretary of 
Transportation is responsible. Specifically, this regulation is DOD 
5220.22-M, National Industrial Security Program Operating Manual, and is 
effective within the Department of Transportation. Appropriate security 
staff, project personnel, and contracting officers must assure that 
actions required by the regulation are taken.

[62 FR 23661, May 1, 1997, as amended at 81 FR 45982, July 15, 2016]



PART 9_TESTIMONY OF EMPLOYEES OF THE DEPARTMENT AND PRODUCTION OF 
RECORDS IN LEGAL PROCEEDINGS--Table of Contents



Sec.
9.1 Purpose.
9.2 Applicability.
9.3 Definitions.
9.5 General prohibition of production or disclosure in legal 
          proceedings.
9.7 Testimony by employees before the Department or in other legal 
          proceedings in which the United States is a party.
9.9 Legal proceedings between private litigants: General rules.
9.11 Legal proceedings between private litigants: Demands.
9.13 Legal proceedings between private litigants: Procedures to request 
          records.
9.15 Legal proceedings between private litigants: Procedures to request 
          testimony.
9.17 Legal proceedings between private litigants: Procedures for taking 
          testimony.
9.19 Acceptance of service on behalf of Secretary.

    Authority: 5 U.S.C. 301; 45 U.S.C. 41-42; 49 U.S.C. 322; 49 U.S.C. 
504(f); 23 U.S.C. 409.

    Source: 58 FR 6724, Feb. 2, 1993, unless otherwise noted.



Sec.  9.1  Purpose.

    (a) This part sets forth procedures governing the testimony of an 
employee in legal proceedings in which the United States is a party. It 
also sets forth procedures to be followed when an employee is issued a 
subpoena, order or other demand (collectively referred to in this part 
as a ``demand'') by a court or other competent authority, or is 
requested by a private litigant, to provide testimony or produce

[[Page 83]]

records concerning information acquired in the course of performing 
official duties or because of the employee's official status. It also 
prescribes the policies and procedures of the Department with respect to 
the acceptance of service of legal process and pleadings in legal 
proceedings involving the Department.
    (b) The purposes of this part are to:
    (1) Conserve the time of employees for conducting official business;
    (2) Minimize the possibility of involving the Department in 
controversial issues not related to its mission;
    (3) Maintain the impartiality of the Department among private 
litigants;
    (4) Avoid spending the time and money of the United States for 
private purposes; and
    (5) To protect confidential, sensitive information and the 
deliberative processes of the Department.
    (c) Agency counsel, in his or her discretion, may permit an 
exception from any requirement in this part. The exception may be 
granted only when the deviation will not interfere with matters of 
operational or military necessity, and when agency counsel determines 
that:
    (1) It is necessary to prevent a miscarriage of justice;
    (2) The Department has an interest in the decision that may be 
rendered in the legal proceeding; or
    (3) The exception is in the best interest of the Department or the 
United States.

For Office of Inspector General employees and documents, the Inspector 
General, in conjunction with the General Counsel of the Department, may 
permit an exception from any requirement of this part if the Inspector 
General determines, based on the Inspector General Act of 1978, as 
amended, that application of the requirement would be inappropriate.



Sec.  9.2  Applicability.

    This part applies to the testimony of an employee in legal 
proceedings in which the United States is a party. It also applies in 
legal proceedings between private litigants to requests or demands for 
testimony or records concerning information acquired in the course of an 
employee performing official duties or because of the employee's 
official status. This part does not apply to any legal proceeding in 
which an employee is to testify as to facts or events that are in no way 
related to the employee's official duties or the functions of the 
Department. Nor does it apply to Congressional demands for testimony or 
documents.



Sec.  9.3  Definitions.

    For purposes of this part:
    Department means the Department of Transportation (DOT), including 
the Office of the Secretary (which encompasses the Office of the 
Inspector General) and the following operating administrations while 
they are part of DOT:
    (a) The U.S. Coast Guard.
    (b) The Federal Aviation Administration.
    (c) The Federal Highway Administration.
    (d) The Federal Railroad Administration.
    (e) The Federal Transit Administration.
    (f) The St. Lawrence Seaway Development Corporation.
    (g) The National Highway Traffic Safety Administration.
    (h) The Maritime Administration.
    (i) The Research and Special Programs Administration.
    (j) Any DOT operating administration established after the effective 
date of this part.
    Legal proceeding means any case or controversy pending before any 
federal, state, or local court (including grand jury proceedings), any 
administrative proceeding pending before any federal, state, or local 
agency, or any legislative proceeding pending before any state or local 
agency.
    Legal proceeding between private litigants means any legal 
proceeding in which neither the Department of Transportation nor the 
United States (including any federal agency or officer of the United 
States in his or her official capacity) is a party.
    Employee of the Department or Employee means any current or former 
officer or employee of the Department; any active duty, retired, or 
former officer or enlisted member of the Coast

[[Page 84]]

Guard; or any current or former contractor (including any corporation or 
other entity and any employee or subcontractor).
    Agency counsel means the General Counsel of the Department or the 
Chief Counsel of any operating administration of the Department 
concerned, any person to whom the General Counsel or Chief Counsel has 
delegated authority, or any person who is authorized to represent the 
Department in a specific legal proceeding.
    Testimony means any written or oral statement by a witness, 
including depositions, answers to interrogatories, affidavits, 
declarations, and statements at a hearing or trial.



Sec.  9.5  General prohibition of production or disclosure in legal
proceedings.

    No employee of the Department may provide testimony or produce any 
material contained in the files of the Department, or disclose any 
information relating to, or based upon, material contained in the files 
of the Department, or disclose any information or produce any material 
acquired as part of the performance of that employee's official duties 
or because of that employee's official status unless authorized in 
accordance with this part, or by other applicable law.



Sec.  9.7  Testimony by employees before the Department or in other
legal proceedings in which the United States is a party.

    In any legal proceeding before the Department or in which the United 
States (including any federal agency or officer of the United States) is 
a party:
    (a) Agency counsel shall arrange for an employee to testify as a 
witness for the United States whenever the attorney representing the 
United States requests it.
    (b) An employee may testify for the United States both as to facts 
within the employee's personal knowledge and as an expert or opinion 
witness. Except as provided in paragraph (c) of this section, an 
employee may not testify as an expert or opinion witness, with regard to 
any matter arising out of the employee's official duties or the 
functions of the Department, for any party other than the United States 
in any legal proceeding in which the United States is a party. An 
employee who receives a demand to testify on behalf of a party other 
than the United States may testify as to facts within the employee's 
personal knowledge, provided that the testimony be subject to the prior 
approval of agency counsel and to the Federal Rules of Civil Procedure 
and any applicable claims of privilege.
    (c) An employee may testify as an expert or opinion witness on 
behalf of an officer or enlisted member of the Coast Guard in any legal 
proceeding conducted by the Coast Guard.



Sec.  9.9  Legal proceedings between private litigants: General rules.

    In legal proceedings between private litigants:
    (a) The proper method for obtaining testimony or records from an 
employee is to submit a request to agency counsel as provided in 
Sec. Sec.  9.13 and 9.15 of this part, not to serve a demand on the 
employee. Whenever, in a legal proceeding between private litigants, an 
employee is served with a demand, or receives a request, to testify in 
that employee's official capacity or produce records, the employee shall 
immediately notify agency counsel.
    (b) If authorized to testify pursuant to these rules, an employee 
may testify only as to facts within that employee's personal knowledge 
with regard to matters arising out of his or her official duties.
    (1) When the proceeding arises from an accident, an employee may 
testify only as to personally known facts, not reasonably available from 
other sources, observed by the employee or uncovered during the 
employee's investigation of the accident or observed by the employee 
even if he or she did not investigate the accident. The employee shall 
decline to testify regarding facts beyond the scope of his or her 
official duties.
    (2) The employee shall not testify to facts that are contained in a 
report, or any part of a report, unless the employee has obtained 
permission from agency counsel to disclose the information.
    (3) The employee shall not disclose confidential or privileged 
information

[[Page 85]]

unless the employee has obtained permission from agency counsel to 
disclose the information.
    (4) The employee shall not testify as to facts when agency counsel 
determines that the testimony would not be in the best interest of the 
Department or the United States if disclosed.
    (c) An employee shall not testify as an expert or opinion witness 
with regard to any matter arising out of the employee's official duties 
or the functions of the Department. An employee who is asked questions 
that call for expert or opinion testimony shall decline to answer on the 
grounds that it is forbidden by this part. Agency counsel shall advise 
the employee on how to proceed if the presiding officer directs the 
employee to provide expert or opinion testimony.
    (d) An employee shall not provide testimony at a trial or hearing. 
An employee's testimony shall be limited to a single deposition, 
affidavit, or set of interrogatories, concerning the circumstances (e.g. 
an accident) from which the proceeding arose. Where multiple legal 
proceedings concerning those circumstances are pending, or can occur, it 
shall be the duty of the private litigant seeking the testimony to 
ascertain, to the extent feasible, the identities of all parties, or 
potential parties, to those proceedings and notify them that a 
deposition has been granted and that they have the opportunity to 
participate. The private litigant shall submit an affidavit or 
certification describing the extent of the search for parties and 
potential parties and listing the names of the parties and potential 
parties notified.
    (e) Where an employee has already provided testimony, any party 
wishing to obtain further testimony from that employee concerning the 
same matter or occurrence, whether in the same or a different private 
legal proceeding, may submit a request to agency counsel to waive the 
restrictions of paragraph (d) of this section. The request shall, in 
addition to meeting the requirements of Sec.  9.15 of this part, state 
why the requester should be permitted to gather additional information 
despite not having previously requested the information when it had an 
opportunity to do so, and why the additional testimony is now required 
and the prior testimony or previously supplied documents are 
insufficient.



Sec.  9.11  Legal proceedings between private litigants: Demands.

    (a) If an employee receives a demand that has not been validly 
issued or served, agency counsel may instruct the employee not to comply 
with the demand.
    (b) If an employee receives a demand (validly issued and served) to 
testify or produce records, agency counsel, in his or her discretion, 
may grant the employee permission to testify or produce records only if 
the purposes of this part are met or agency counsel determines that an 
exception is appropriate.
    (c) If a demand is issued to an employee, agency counsel shall 
contact the requester of the demand, inform that person of the 
requirements of this part, and may, in agency counsel's discretion, ask 
that the demand be withdrawn.
    (d) If the requester of the demand refuses to have it withdrawn or 
fails to comply with this part, the Department may seek to quash the 
demand.
    (e) If the court or other competent authority declines to grant the 
Department's motion to quash, agency counsel shall instruct the employee 
whether to testify or produce documents pursuant to the demand. Agency 
counsel may permit the testimony under Sec.  9.1(c) of this part. If 
response to a demand is required before the court or other competent 
authority rules on the motion to quash and the court fails to stay the 
demand, the employee must appear at the stated time and place, produce a 
copy of this part, and respectfully refuse to provide any testimony or 
produce any documents. Agency counsel shall take steps to arrange for 
legal representation for the employee. Agency counsel shall advise the 
employee how to respond, including not to testify, if the court or other 
competent authority rules that the demand must be complied with 
irrespective of these regulations.

[[Page 86]]



Sec.  9.13  Legal proceedings between private litigants: Procedures to
request records.

    (a) In a legal proceeding between private litigants, a party who 
wishes to obtain records from the Department shall submit to agency 
counsel a request for the records. The request will ordinarily be 
handled in accordance with the Department's procedures concerning 
requests for records found at 49 CFR part 7. If the party does not 
follow the procedures specified in that part, the request must be 
accompanied by a statement setting forth the relevance of the records to 
the proceeding. The request should be resolved before any request for 
testimony under Sec.  9.15 is submitted. Where a request for testimony 
includes a request for additional records, it shall indicate precisely 
how this new request differs in scope from any previous request in order 
to avoid agency duplication of effort. Agency counsel shall notify the 
requester of the approval or denial of the request.
    (b) [Reserved]



Sec.  9.15  Legal proceedings between private litigants: Procedures to
request testimony.

    (a) Any party seeking the testimony of an employee in a legal 
proceeding between private litigants, concerning facts within the 
employee's personal knowledge with regard to matters arising out of the 
employee's official duties, shall, rather than serving a demand for the 
testimony, request the testimony at least 30 days before it is intended 
to be taken or received. The request must be submitted to agency counsel 
and must include:
    (1) The title of the case, docket number, and the court, or 
otherwise clearly identify the legal proceeding involved;
    (2) A statement setting forth the basic facts in the proceeding, 
such as the type, date, and location of an accident;
    (3) A summary of the unresolved issues applicable to the testimony 
sought;
    (4) A summary of the testimony sought and its relevant to the 
proceeding;
    (5) A certification with support, that the information desired is 
not reasonably available from other sources, including Departmental 
documents;
    (6) Pursuant to Sec.  9.9(d) of this part, an affidavit or 
certification describing the extent of a search of parties and potential 
parties and listing the names of the parties and potential parties 
notified; and
    (7) A declaration that the party will not seek expert or opinion 
testimony from the witness or seek the testimony of the witness at a 
hearing or trial in the proceeding.

The request shall specify which form of testimony (deposition, 
affidavit, declaration, or answers to interrogatories) is desired and 
the date by which it is desired; however, only one form, the one least 
burdensome to the Department that will provide the needed information, 
will be permitted for each witness.
    (b) The party seeking the testimony shall include with its request 
for testimony a copy of any prior request(s) made by the same requester 
to the Department or other agency of the United States for records 
pertaining to the matter being litigated and of the response (not 
including the records themselves) to the request(s). The party seeking 
the testimony shall also comply with any agency counsel request that 
copies of the records previously disclosed by the Department, or a list 
of those records, be furnished.
    (c) In accordance with the requirement of this section and the 
general provisions of this part, agency counsel shall notify the 
requester of the approval or denial of the request. Agency counsel may 
attach special conditions to its approval.



Sec.  9.17  Legal proceedings between private litigants: Procedures 
for taking testimony.

    (a) Testimony of an employee of the Department may be taken only at 
the office to which the employee is assigned, or any other place 
designated by agency counsel. Additional conditions may be specified 
under Sec.  9.15(c) of this part. The time shall be reasonably fixed to 
avoid substantial interference with the performance of the employee's or 
agency counsel's official duties.
    (b) Upon completion of the testimony of an employee of the 
Department, a

[[Page 87]]

copy of the transcript of the testimony shall be furnished, at the 
expense of the party requesting the testimony, to agency counsel for the 
Department's files.



Sec.  9.19  Acceptance of service on behalf of Secretary.

    In any legal proceeding, at the option of the server, process or 
pleadings may be served on agency counsel, with the same effect as if 
served upon the Secretary or the head of the operating administration 
concerned, as the case may be. The official accepting service under this 
section shall acknowledge the service and take appropriate action. This 
section does not in any way abrogate or modify the requirements of Rule 
4(d)(4) and 4(d)(5) of the Federal Rules of Civil Procedure regarding 
service of summons and complaint.



PART 10_MAINTENANCE OF AND ACCESS TO RECORDS PERTAINING TO INDIVIDUALS-
-Table of Contents



                   Subpart A_Applicability and Policy

Sec.
10.1 Applicability.
10.3 Policy.
10.5 Definitions.

                            Subpart B_General

10.11 Administration of part.
10.13 Privacy Officer.
10.15 Protection of records.

                    Subpart C_Maintenance of Records

10.21 General.
10.23 Accounting of disclosures.
10.25 Mailing lists.
10.27 Government contractors.
10.29 Social Security numbers.

                    Subpart D_Availability of Records

10.31 Requests for records.
10.33 Acknowledgment and access.
10.35 Conditions of disclosure.
10.37 Identification of individual making request.
10.39 Location of records.

                     Subpart E_Correction of Records

10.41 Requests for correction of records.
10.43 Time limits.
10.45 Statement of disagreement.

Subpart F_Procedures for Reconsidering Decisions Not To Grant Access to 
                            or Amend Records

10.51 General.

                          Subpart G_Exemptions

10.61 General exemptions.
10.63 Specific exemptions.

                             Subpart H_Fees

10.71 General.
10.73 Payment of fees.
10.75 Fee schedule.
10.77 Services performed without charge.

                      Subpart I_Criminal Penalties

10.81 Improper disclosure.
10.83 Improper maintenance of records.
10.85 Wrongfully obtaining records.

Appendix A to Part 10--Exemptions

    Authority: 5 U.S.C. 552a; 49 U.S.C. 322.

    Source: 45 FR 8993, Feb. 11, 1980, unless otherwise noted.



                   Subpart A_Applicability and Policy



Sec.  10.1  Applicability.

    This part implements section 552a of title 5, United States Code, as 
well as other provisions of the Privacy Act of 1974, and prescribes 
rules governing the availability of those records of the Department of 
Transportation which relate to citizens of the United States and aliens 
lawfully admitted for permanent residence.

[45 FR 8993, Feb. 11, 1980, as amended at 62 FR 23666, May 1, 1997]



Sec.  10.3  Policy.

    It is the policy of the Department of Transportation to comply with 
the letter and the spirit of the Privacy Act (the Act). Therefore, 
personal data contained in each system of records is afforded adequate 
protection against unauthorized access, is as accurate as is feasible, 
and is limited to that necessary to accomplish the stated use or uses of 
the system. Further, no system

[[Page 88]]

of records is exempted from the requirements of the Act unless it is 
determined that to do so is in the best interest of the government with 
due concern for individual rights.



Sec.  10.5  Definitions.

    Unless the context requires otherwise, the following definitions 
apply in this part:
    Administrator means the head of an operating administration and 
includes the Under Secretary for Security and the Commandant of the 
Coast Guard.
    Department means the Department of Transportation, including the 
Office of the Secretary, the Office of Inspector General, and the 
following operating administrations: This definition specifically 
excludes the Surface Transportation Board, which has its own Privacy Act 
regulations (49 CFR Part 1007), except to the extent that any system of 
records notice provides otherwise.
    (1) Federal Aviation Administration.
    (2) Federal Highway Administration.
    (3) Federal Motor Carrier Safety Administration.
    (4) Federal Railroad Administration.
    (5) Federal Transit Administration.
    (6) National Highway Traffic Safety Administration.
    (7) St. Lawrence Seaway Development Corporation.
    (8) Pipeline and Hazardous Materials Safety Administration.
    (9) Research and Innovative Technology Administration.
    (10) Maritime Administration.
    General Counsel means the General Counsel of the Department.
    Includes means ``includes but is not limited to;''
    Individual means a citizen of the United States or an alien lawfully 
admitted;
    Maintain includes maintain, collect, use, or disseminate;
    May is used in a permissive sense to state authority or permission 
to do the act prescribed;
    Record means any item, collection, or grouping of information about 
an individual that is maintained by the Department including, but not 
limited to, education, financial transactions, medical history, and 
criminal or employment history and that contains the name of, or an 
identifying number, symbol, or other identifying particular assigned to, 
the individual, such as a finger or voice print or a photograph;
    Secretary means the Secretary of Transportation or any person to 
whom has been delegated authority in the matter concerned;
    System of records means a group of any records under the control of 
the Department from which information is retrieved by the name of the 
individual or by some identifying number, symbol, or other identifying 
particular assigned to the individual;
    Statistical record means a record in a system of records maintained 
for statistical research or reporting purposes only and not in whole or 
in part in making any determination about an identifiable individual, 
except as provided by section 8 of title 13, United States Code; and
    Routine use means, with respect to the disclosure of a record, the 
use of such record for a purpose which is compatible with the purpose 
for which it was collected.

[45 FR 8993, Feb. 11, 1980, as amended at 62 FR 23667, May 1, 1997; 65 
FR 48184, Aug. 7, 2000; 67 FR 54746, Aug. 26, 2002; 73 FR 33329, June 
12, 2008]



                            Subpart B_General



Sec.  10.11  Administration of part.

    Authority to administer this part in connection with the records of 
the Office of the Secretary is delegated to the Chief Information 
Officer. Authority to administer this part in connection with records in 
each operating administration is delegated to the Administrator 
concerned. An Administrator may redelegate to officers of that 
administration the authority to administer this part in connection with 
defined systems of records. An Administrator, however, may redelegate 
his or her duties under subparts F and G of this part only to his or her 
deputy and to not more than one other officer who reports directly to 
the Administrator and who is located at the headquarters of

[[Page 89]]

that administration or at the same location as the majority of that 
administration's systems of records.

[45 FR 8993, Feb. 11, 1980, as amended at 62 FR 23667, May 1, 1997; 73 
FR 33329, June 12, 2008]



Sec.  10.13  Privacy Officer.

    (a) To assist with implementation, evaluation, and administration 
issues, the Chief Information Officer appoints a principal coordinating 
official with the title Privacy Officer, and one Privacy Act Coordinator 
from his/her staff.
    (b) Inquiries concerning Privacy Act matters, or requests for 
assistance, may be addressed to the Privacy Act Officer (S-80), 
Department of Transportation, 1200 New Jersey Avenue, SE., Washington, 
DC 20590.
    (c) Administrators may designate Privacy Officers or Coordinators to 
act as central coordinators within their administrations to assist them 
in administering the Act.

[73 FR 33329, June 12, 2008]



Sec.  10.15  Protection of records.

    (a) No person may, without permission, remove any record made 
available for inspection or copying under this part from the place where 
it is made available. In addition, no person may steal, alter, mutilate, 
obliterate, or destroy, in whole or in part, such a record.
    (b) Section 641 of title 18 of the United States Code provides, in 
pertinent part, as follows:

    Whoever * * * steals, purloins, or knowingly converts to his use or 
the use of another, or without authority, sells, conveys or disposes of 
any record * * * or thing of value of the United States or of any 
department or agency thereof * * * shall be fined not more than $10,000 
or imprisoned not more than 10 years or both; but if the value of such 
property does not exceed the sum of $100, he shall be fined not more 
than $1,000 or imprisoned not more than one year or both * * *.

    (c) Section 2071 of title 18 of the United States Code provides, in 
pertinent part, as follows:

    Whoever willfully and unlawfully conceals, removes, mutilates, 
obliterates, or destroys, or attempts to do so, or with intent to do so 
takes and carries away any record, proceeding, map, book, paper, 
document, or other thing, filed or deposited * * * in any public office, 
or with any * * * public officer of the United States, shall be fined 
not more than $2,000 or imprisoned not more than 3 years, or both.



                    Subpart C_Maintenance of Records



Sec.  10.21  General.

    Except to the extent that a system of records is exempt in 
accordance with subpart G of this part, the Department, with respect to 
each system of records:
    (a) Maintains in its records only such information about an 
individual as is relevant and necessary to accomplish a purpose of the 
Department required to be accomplished by statute or by executive order 
of the President;
    (b) Collects information to the greatest extent practicable directly 
from the subject individual when the information may result in adverse 
determinations about an individual's rights, benefits, or privileges 
under Federal programs;
    (c) Informs each individual whom it asks to supply information, on 
the form which it uses to collect the information or on a separate form 
that can be retained by the individual of:
    (1) The authority (whether granted by statute, or by executive order 
of the President) which authorizes the solicitation of the information 
and whether disclosure of such information is mandatory or voluntary;
    (2) The principal purpose or purposes for which the information is 
intended to be used;
    (3) The routine uses, as published pursuant to paragraph (d)(4) of 
this section, which may be made of the information; and
    (4) The effects, if any, on the individual of not providing all or 
any part of the requested information;
    (d) Publishes in the Federal Register at least annually a notice of 
the existence and character of the system of records, including:
    (1) The name and location of the system;
    (2) The categories of individuals on whom records are maintained in 
the system;
    (3) The categories of records maintained in the system;

[[Page 90]]

    (4) Each routine use of the records contained in the system, 
including the categories of users and the purpose of such use;
    (5) The policies and practices regarding storage, retrievability, 
access controls, retention, and disposal of the records;
    (6) The title and business address of the official responsible for 
the system of records;
    (7) The procedures whereby an individual can be notified upon 
request if the system of records contains a record pertaining to that 
individual;
    (8) The procedures whereby an individual can be notified upon 
request how to gain access to any record pertaining to that individual 
contained in the system of records, and how to contest its content; and
    (9) The categories of sources of records in the system;
    (e) Maintains all records which are used in making any determination 
about any individual with such accuracy, relevancy, timeliness, and 
completeness as is reasonably necessary to assure fairness to the 
individual in the determination;
    (f) Prior to disseminating any record about an individual to any 
person other than an agency, unless the dissemination is made pursuant 
to Sec.  10.35(a)(2), makes reasonable efforts to assure that such 
records are accurate, complete, timely, and relevant for the 
Department's purposes;
    (g) Maintains no record describing how any individual exercises 
rights guaranteed by the First Amendment unless:
    (1) Expressly authorized by the General Counsel; and
    (2) Expressly authorized by statute or by the individual about whom 
the record is maintained or unless pertinent to and within the scope of 
an authorized law enforcement activity;
    (h) Makes reasonable efforts to serve notice on an individual when 
any record on such individual is made available to any person under 
compulsory legal process when such process becomes a matter of public 
record.



Sec.  10.23  Accounting of disclosures.

    Each operating administration, the Office of Inspector General, and 
the Office of the Secretary, with respect to each system of records 
under its control:
    (a) Except for disclosures made under Sec.  10.35(a) (1) or (2) of 
this part, keep an accurate accounting of:
    (1) The date, nature, and purpose of each disclosure of a record to 
any person or to another agency made under Sec.  10.33; and
    (2) The name and address of the person or agency to whom the 
disclosure is made;
    (b) Retains the accounting made under paragraph (a) of this section 
for at least five years or the life of the record, whichever is longer, 
after the disclosure for which the accounting is made;
    (c) Except for disclosures made under Sec.  10.33(a)(7) of this 
part, makes the accounting made under paragraph (a)(1) of this section 
available to the individual named in the record at his request; and
    (d) Informs any person or other agency about any correction or 
notation of dispute made by the agency in accordance with Sec.  10.45 of 
any record that has been disclosed to the person or agency if an 
accounting of the disclosure was made.

[45 FR 8993, Feb. 11, 1980, as amended at 62 FR 23667, May 1, 1997]



Sec.  10.25  Mailing lists.

    An individual's name and address is not sold or rented unless such 
action is specifically authorized by law. This provision shall not be 
construed to require the withholding of names and addresses otherwise 
permitted to be made public.



Sec.  10.27  Government contractors.

    When the Department provides by a contract for the operation by or 
on behalf of the Department of a system of records to accomplish a 
function of the Department, the requirements of this part are applied to 
such system. For purposes of subpart I, Criminal Penalties, any such 
contractor and any employee of the contractor are considered, in 
accordance with section 3(m) of the Privacy Act, to be employees of the 
Department.

[[Page 91]]



Sec.  10.29  Social Security numbers.

    (a) No individual is denied any right, benefit, or privilege 
provided by law because of such individual's refusal to disclose his 
Social Security account number.
    (b) The provisions of paragraph (a) of this section do not apply to:
    (1) Any disclosure which is required by Federal statute; or
    (2) The disclosure of a Social Security number when such disclosure 
was required under statute or regulation adopted prior to January 1, 
1975, to verify the identity of an individual.
    (c) When an individual is requested to disclose his or her Social 
Security account number, that individual is informed whether that 
disclosure is mandatory or voluntary, by what statutory or other 
authority such number is solicited, what uses are made of it, and what 
detriments, including delay in the location of records, are incurred if 
the number is not provided.



                    Subpart D_Availability of Records



Sec.  10.31  Requests for records.

    (a) Ordinarily, each person desiring to determine whether a record 
pertaining to him/her is contained in a system of records covered by 
this part or desiring access to a record covered by this part, or to 
obtain a copy of such a record, shall make a request in writing 
addressed to the system manager. The ``Privacy Act Issuances'' published 
by the Office of the Federal Register, National Archives and Records 
Administration, describes the systems of records maintained by all 
Federal agencies, including the Department and its components. In 
exceptional cases oral requests are accepted. A description of DOT 
Privacy Act systems notices is available through the Internet free of 
charge at http://www.access.gpo.gov/su_docs/aces/
PrivacyAct.shtml?desc015.html. See Sec.  10.13(b) regarding inquiries 
concerning Privacy Act matters or requests for assistance.
    (b) Each request shall specify the name of the requesting individual 
and the system of records in which the subject record is located or 
thought to be located. If assistance is required to determine the system 
of records identification number assigned in the systems notices, such 
assistance may be obtained from the appropriate Privacy Act officer or 
his assistant. Refer to Sec.  10.13 for procedures for requesting 
assistance.

[45 FR 8993, Feb. 11, 1980, as amended at 62 FR 23667, May 1, 1997]



Sec.  10.33  Acknowledgment and access.

    (a) Requests by an individual to determine whether he or she is the 
subject of a record in a system of records, or requesting access to a 
record in a system of records, should be acknowledged within 10 working 
days, where the request is by mail. For requests in person, an immediate 
response is given, either granting access or informing such individual 
when notification or access may be expected.
    (b) If the response granting access or copies of the record is made 
within 10 working days, separate acknowledgment is not required.
    (c) Although requests for access to a record are normally in 
writing, e.g., by filing a written form or letter, it is the option of 
the individual to mail or present the request form in person.



Sec.  10.35  Conditions of disclosure.

    (a) No record that is contained within a system of records of the 
Department is disclosed by any means of communication to any person, or 
to another agency, except pursuant to a written request by, or with the 
prior written consent of, the individual to whom the record pertains, 
unless disclosure of the record would be:
    (1) To those officers and employees of the Department who have a 
need for the record in the performance of their duties;
    (2) Required under part 7 of this title which implements the Freedom 
of Information Act;
    (3) For a routine use as defined in Sec.  10.5 and described 
pursuant to Sec.  10.21(d)(4);
    (4) To the Bureau of the Census for purposes of planning or carrying 
out a census or survey or related activity pursuant to the provisions of 
title 13, United States Code;
    (5) To a recipient who has provided the Department with advance 
adequate

[[Page 92]]

written assurance that the record will be used solely as a statistical 
research or reporting record, and the record is to be transferred in a 
form that is not individually identifiable;
    (6) To the National Archives of the United States as a record which 
has sufficient historical or other value to warrant its continued 
preservation by the U.S. Government, or for evaluation by the 
Administrator of General Services or his designee to determine whether 
the record has such value;
    (7) To another agency or to an instrumentality of any governmental 
jurisdiction within or under the control of the United States for a 
civil or criminal law enforcement activity 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;
    (8) To a person pursuant to a showing of compelling circumstances 
affecting the health or safety of an individual if upon such disclosure 
notification is transmitted to the last known address of such 
individual;
    (9) To either House of the Congress, or to the extent of matters 
within its jurisdiction, any committee or subcommittee thereof, any 
joint committee of the Congress or subcommittee of any such joint 
committee;
    (10) To the Comptroller General, or any authorized representatives, 
in the course of the performance of the duties of the General Accounting 
Office; or
    (11) Pursuant to the order of a court of competent jurisdiction.
    (12) To a consumer reporting agency in accordance with 31 U.S.C. 
3711(f).
    (b) Any individual requesting access to his or her record or to any 
information pertaining to that individual which is contained within a 
system of records within the Department has access to that record or 
information unless the system of records within which the record or 
information is contained is exempted from disclosure in accordance with 
subpart G, provided, however, that nothing in this part is deemed to 
require that an individual be given access to any information compiled 
in reasonable anticipation of a civil action or proceeding. No exemption 
contained in subpart G of part 7 of the regulations of the Office of the 
Secretary is relied upon to withhold from an individual any record which 
is otherwise accessible to such individual under the provisions of this 
part. Any individual who is given access to a record or information 
pertaining to him is permitted to have a person of his or her own 
choosing accompany him and to have a copy made of all or any portion of 
the record or information in a form comprehensible to the individual. 
When deemed appropriate, the individual may be required to furnish a 
written statement authorizing discussion of his record in the 
accompanying person's presence.
    (c) Medical records. Where requests are for access to medical 
records, including psychological records, the decision to release 
directly to the individual, or to withhold direct release, shall be made 
by a medical practitioner. Where the medical practitioner has ruled that 
direct release will do harm to the individual who is requesting access, 
normal release through the individual's chosen medical practitioner will 
be recommended. Final review and decision on appeals of disapprovals of 
direct release will rest with the General Counsel.
    (d) Any person requesting access to records or to any information 
pertaining to other individuals is not granted such access unless that 
person can show that he or she has obtained permission for such access 
from the individual to whom the record pertains, unless the request 
comes within one of the exceptions of paragraph (a) of this section.

[45 FR 8993, Feb. 11, 1980, as amended at 62 FR 23667, May 1, 1997]



Sec.  10.37  Identification of individual making request.

    No record or information contained in a system of records is 
disclosed to an individual nor is any correction of a record in 
accordance with subpart E made at the request of an individual unless 
that individual demonstrates that he or she is who he or she claims to 
be. Normally, identity can be proven for individuals who appear in 
person by

[[Page 93]]

the presentation of an identifying document issued by a recognized 
organization (e.g., a driver's license or a credit card) and which 
contains a means of verification such as a photograph or a signature. 
For requests by mail, the unique identifier used in the system should be 
included if known. Responses to mail requests are normally sent only to 
the name and address listed in the system of records. In the case of 
particularly sensitive records, additional identification requirements 
may be imposed. In such cases, these additional requirements are listed 
in the public notice for the system.

[45 FR 8993, Feb. 11, 1980, as amended at 62 FR 23667, May 1, 1997]



Sec.  10.39  Location of records.

    Each record made available under this subpart is available for 
inspection and copying during regular working hours at the place where 
it is located, or, upon reasonable notice, at the document inspection 
facilities of the Office of the Secretary or each administration. 
Original records may be copied but may not be released from custody. 
Upon payment of the appropriate fee, copies are mailed to the requester.

[62 FR 23667, May 1, 1997]



                     Subpart E_Correction of Records



Sec.  10.41  Requests for correction of records.

    Any person who desires to have a record pertaining to that person 
corrected shall submit a written request detailing the correction and 
the reasons the record should be so corrected. Requests for correction 
of records shall be submitted to the System Manager.

[62 FR 23667, May 1, 1997]



Sec.  10.43  Time limits.

    Within ten days (excluding Saturday, Sunday, and legal holidays) of 
the receipt in accordance with Sec.  10.41 of a request by an individual 
to amend a record pertaining to him, the receipt of the request is 
acknowledged in writing. If a determination is made to correct the 
record as requested, the correction is promptly made. If a determination 
is made not to correct a record the individual is informed promptly of 
the right to appeal in accordance with subpart F. If an appeal of a 
refusal to correct a record is in accordance with subpart F, a 
determination whether to correct the record is made within thirty days 
(excluding Saturday, Sunday, and legal holidays) of the receipt of the 
appeal unless, for good cause shown the Administrator concerned, or in 
the case of the Office of the Secretary, the General Counsel, extends 
such period. Where an extension is taken, the party taking the appeal is 
promptly notified of such fact.



Sec.  10.45  Statement of disagreement.

    If a determination is made not to amend a record, the requester is 
informed of the right to file a concise statement setting forth the 
reasons for disagreement with the refusal to amend. In any disclosure 
containing information about which an individual has filed such a 
statement of disagreement, the portions of the record which are disputed 
are noted clearly and copies of the statement of disagreement provided. 
If the Administrator concerned or his or her delegee, or in the case of 
the Office of the Secretary, the General Counsel or his or her delegee, 
deems it appropriate, copies of a concise statement of the reasons for 
not making the amendments requested may be provided along with the 
statement of disagreement.



Subpart F_Procedures for Reconsidering Decisions Not To Grant Access to 
                            or Amend Records



Sec.  10.51  General.

    (a) Each officer or employee of the Department who, upon a request 
by a member of the public for a record under this part, makes a 
determination that access is not to be granted or who determines not to 
amend a record in a requested manner, gives a written statement of the 
reasons for that determination to the person making the request and 
indicates the name and title or position of each person responsible for 
the denial of such request and the procedure for appeal within the 
Department.
    (b) Any person:

[[Page 94]]

    (1) Who has been given a determination pursuant to paragraph (a) of 
this section, that access will not be granted; or
    (2) Who has been informed that an amendment to a requested record 
will not be made; may apply to the Administrator concerned, or in the 
case of the Office of the Secretary, to the General Counsel for review 
of that decision. A determination that access will not be granted or a 
record amended is not administratively final for the purposes of 
judicial review unless it was made by the Administrator concerned or his 
or her delegee, or the General Counsel or his or her delegee, as the 
case may be. Upon a determination that an appeal will be denied, the 
requester is informed in writing of the reasons for the determination, 
and the names and titles or positions of each person responsible for the 
determination, and that the determination may be appealed to the 
District Court of the United States in the district in which the 
complainant resides, or has his or her principal place of business, or 
in which the records are located, or in the District of Columbia.
    (c) Each application for review must be made in writing and must 
include all information and arguments relied upon by the person making 
the request, and be submitted within 30 days of the date of the initial 
denial; exceptions to this time period are permitted for good reason.
    (d) Upon a determination that a request for the correction of a 
record will be denied, the requester is informed that he may file a 
concise statement in accordance with Sec.  10.45.
    (e) Each application for review must indicate that it is an appeal 
from a denial of a request made under the Privacy Act. The envelope in 
which the application is sent should be marked prominently with the 
words ``Privacy Act.'' If these requirements are not met, the time 
limits described in Sec.  10.43 do not begin to run until the 
application has been identified by an employee of the Department as an 
application under the Privacy Act and has been received by the 
appropriate office.
    (f) The Administrator concerned, or the General Counsel, as the case 
may be, may require the person making the request to furnish additional 
information, or proof of factual allegations, and may order other 
proceedings appropriate in the circumstances. The decision of the 
Administrator concerned, or the General Counsel, as the case may be, as 
to the availability of the record or whether to amend the record is 
administratively final.
    (g) The decision by the Administrator concerned, or the General 
Counsel, as the case may be, not to disclose a record under this part is 
considered a determination for the purposes of section 552a(g) of title 
5, United States Code, ``Civil Remedies.''
    (h) Any final decision by an Administrator or his/her delegate not 
to grant access to or amend a record under this part is subject to 
concurrence by the General Counsel or his or her delegate.

[45 FR 8993, Feb. 11, 1980, as amended at 62 FR 23667, May 1, 1997]



                          Subpart G_Exemptions



Sec.  10.61  General exemptions.

    (a) The Assistant Secretary for Administration, with regard to the 
Investigations Division; and the Federal Aviation Administrator, with 
regard to the FAA's Investigative Record System (DOT/FAA 815) may exempt 
from any part of the Act and this part except subsections (b), (c)(1) 
and (2), (e)(4)(A) through (F), (e)(6), (7), (9), (10), and (11), and 
(i) of the Act, and implementing Sec. Sec.  10.35, 10.23(a) and (b), 
10.21(d)(1) through (6), 10.81, 10.83, and 10.85 of this chapter, any 
systems of records, or portions thereof, which they maintain which 
consist wholly of;
    (1) Information compiled for the purpose of identifying individual 
criminal offenders and alleged offenders and consisting only of 
identifying data and notations of arrests, the nature and disposition of 
criminal charges, sentencing, confinement, release, and parole and 
probation status;
    (2) Information compiled for the purpose of a criminal 
investigation, including reports of informants and investigators, and 
associated with an identifiable individual; or
    (3) Reports identifiable to an individual compiled at any stage of 
the process of enforcement of the criminal

[[Page 95]]

laws from arrest or indictment through release from supervision.
    (b) The requirements (including general notice) of sections 
553(b)(1), (2) and (3), and (c) and (e) of title 5, United States Code, 
will be met by publication in appendix A to this part, which must, at a 
minimum, specify:
    (1) The name of the system; and
    (2) The specific provisions of the Act from which the system is to 
be exempted and the reasons therefor.
    (c) Any decision to exempt a system of records under this section is 
subject to concurrence by the General Counsel.
    (d) Any person may petition the Secretary in accordance with the 
provisions of part 5 of this title, to institute a rulemaking proceeding 
for the amendment or repeal of any exemptions established under this 
section.

[45 FR 8993, Feb. 11, 1980, as amended at 58 FR 67697, Dec. 22, 1993; 73 
FR 33329, June 12, 2008]



Sec.  10.63  Specific exemptions.

    The Secretary or his or her delegee, in the case of the Office of 
the Secretary; or the Administrator or his or delegee, in the case of an 
operating administration; or the Inspector General or his or her 
delegee, in the case of the Office of Inspector General, may exempt any 
system of records that is maintained by the Office of the Secretary, an 
operating administration, or the Office of Inspector General, as the 
case may be, from subsections (c)(3), (d), (e)(1), (e)(4)(G), (H), and 
(I), and (f) of the Act and implementing Sec. Sec.  10.23(c); 10.35(b); 
10.41; 10.43; 10.45; 10.21(a) and 10.21(d)(6), (7), and (8) of this 
chapter, under the following conditions:
    (a) The system of records must consist of:
    (1) Records subject to the provisions of section 552(b)(1) of title 
5, United States Code;
    (2) Investigatory material compiled for law enforcement purposes, 
other than material within the scope of Sec.  10.61(a)(2): Provided, 
however, That if any individual is denied any right, privilege, or 
benefit to which that individual would otherwise be entitled by Federal 
law, or for which that individual would otherwise be eligible, as a 
result of the maintenance of such material, such material is provided to 
such individual, except to the extent that the disclosure of such 
material would reveal the identity of a source who furnished information 
to the Government under an express promise that the identity of the 
source would be held in confidence, or, prior to September 27, 1975, the 
effective date of the Privacy Act of 1974, under an implied promise that 
the identity of the source would be held in confidence;
    (3) Records maintained in connection with providing protective 
services to the President of the United States or other individuals 
pursuant to section 3056 of title 18, United States Code;
    (4) Records required by statute to be maintained and used solely as 
statistical records;
    (5) Investigatory material compiled solely for the purpose of 
determining suitability, eligibility, or qualifications for Federal 
civilian employment, military service, Federal contracts, or access to 
classified information, but only to the extent that the disclosure of 
such material would reveal the identity of a source who furnished 
information to the Government under an express promise that the identity 
of the source would be held in confidence, or, prior to September 27, 
1975, the effective date of the Privacy Act of 1974, under an implied 
promise that the identity of the source would be held in confidence;
    (6) Testing or examination material used solely to determine 
individual qualifications for appointment or promotion in the Federal 
service the disclosure of which would compromise the objectivity or 
fairness of the testing or examination process; or
    (7) Evaluation material used to determine potential for promotion in 
the armed services, but only to the extent that the disclosure of such 
material would reveal the identity of a source who furnished information 
to the Government under an express promise that the identity of the 
source would be held in confidence, or, prior to the effective date of 
this section, under an implied promise that the identity of the source 
would be held in confidence.
    (b) The requirements (including general notice) of sections 553 (b) 
(1), (2) and (3), and (c) and (e) of title 5, United States Code, will 
be met by publication

[[Page 96]]

in appendix A to this part, which must, at a minimum, specify:
    (1) The name of the systems; and
    (2) The specific provisions of the Act from which the system is to 
be exempted and the reasons therefor.
    (c) Any decision to exempt a system of records under this section is 
subject to the concurrence of the General Counsel.
    (d) Any person may petition the Secretary in accordance with the 
provisions of 49 CFR part 5, to institute a rulemaking for the amendment 
or repeal of any exemptions established under this section.

[45 FR 8993, Feb. 11, 1980, as amended at 62 FR 23667, May 1, 1997; 73 
FR 33329, June 12, 2008]



                             Subpart H_Fees



Sec.  10.71  General.

    This subpart prescribes fees for services performed for the public 
under this part by the Department.



Sec.  10.73  Payment of fees.

    The fees prescribed in this subpart may be paid by check, draft, or 
postal money order payable to the Treasury of the United States.



Sec.  10.75  Fee schedule.

(a) Copies of documents by photocopy or similar method:
  Each page not larger than 11 x 17 inches:
    First page.................................................     $.25
    Each page..................................................      .05
(b) Copies of documents by typewriter: Each page...............     2.00
(c) Certified copies of documents:
  (1) With Department of Transportation seal...................     3.00
  (2) True copy, without seal..................................     1.00
(d) Photographs:
  (1) Black and white print (from negative)....................     1.25
  (2) Black and white print (from print).......................     3.15
  (3) Color print (from negative)..............................     3.50
  (4) Color print (from print).................................     6.25
(e) Duplicate data tapes--each reel of tape or fraction thereof    36.00
 


The applicant must furnish the necessary number of blank magnetic tapes. 
The tapes must be compatible for use in the supplier's computer system, 
\1/2\ inch wide and 2,400 feet long, and must be capable of recording 
data at a density of 556 or 800 characters per inch. Unless otherwise 
designated, the tapes will be recorded at 556 CPI density. The 
Department of Transportation is not responsible for damaged tape. 
However, if the applicant furnishes a replacement for a damaged tape, 
the duplication process is completed at no additional charge.

(f) Microreproduction fees are as follows:
  (1) Microfilm copies, each 100 foot roll or less.............    $3.75
  (2) Microfiche copies, each standard size sheet (4      .15
   x 6 containing up to 65 frames)..................
  (3) Apertune card to hard copy, each copy....................      .50
  (4) 16mm microfilm to hard copy:
    First......................................................      .25
    Additional.................................................      .07
(g) Computerline printer output, each 1,000 lines or fraction       1.00
 thereof.......................................................
 



Sec.  10.77  Services performed without charge.

    (a) No fee is charged for time spent in searching for records or 
reviewing or preparing correspondence related to records subject to this 
part.
    (b) No fee is charged for documents furnished in response to:
    (1) A request from an employee or former employee of the Department 
for copies of personnel records of the employee;
    (2) A request from a Member of Congress for official use;
    (3) A request from a State, territory, U.S. possession, county or 
municipal government, or an agency thereof;
    (4) A request from a court that will serve as a substitute for the 
personal court appearance of an officer or employee of the Department;
    (5) A request from a foreign government or an agency thereof, or an 
international organization.
    (c) Documents are furnished without charge or at a reduced charge, 
if the Chief Information Officer or the Administrator concerned, as the 
case may be, determines that waiver or reduction of the fee is in the 
public interest, because furnishing the information can be considered as 
primarily benefiting the general public.
    (d) When records are maintained in computer-readable form rather 
than human-readable form, one printed copy is made available which has 
been translated to human-readable form without a charge for translation 
but in accordance with Sec.  10.75(g), regarding computer line-printed 
charges.

[45 FR 8993, Feb. 11, 1980, as amended at 73 FR 33329, June 12, 2008; 75 
FR 5244, Feb. 2, 2010]

[[Page 97]]



                      Subpart I_Criminal Penalties



Sec.  10.81  Improper disclosure.

    Any officer or employee of the Department who by virtue of his or 
her employment or official position, has possession of, or access to, 
agency records which contain individually identifiable information the 
disclosure of which is prohibited by this part and who knowing that 
disclosure of the specific material is so prohibited, willfully 
discloses the material in any manner to any person or agency not 
entitled to receive it, is guilty of a misdemeanor and fined not more 
than $5,000 in accordance with 5 U.S.C. 552a(i)(1).



Sec.  10.83  Improper maintenance of records.

    Any officer or employee of the Department who willfully maintains a 
system of records without meeting the notice requirements of Sec.  
10.21(d) of this part is guilty of a misdemeanor and fined not more than 
$5,000 in accordance with 5 U.S.C. 552a(i)(2).



Sec.  10.85  Wrongfully obtaining records.

    Any person who knowingly and willfully requests or obtains any 
record concerning an individual from the Department under false 
pretenses is guilty of a misdemeanor and fined not more than $5,000 in 
accordance with 5 U.S.C. 552a(i)(3).



                 Sec. Appendix A to Part 10--Exemptions

                       Part I. General Exemptions

    Those portions of the following systems of records that consist of 
(a) Information compiled for the purpose of identifying individual 
criminal offenders and alleged offenders and consisting only of 
identifying data and notations of arrests, the nature and disposition of 
criminal charges, sentencing, confinement, release, and parole and 
probation status; (b) information compiled for the purpose of a criminal 
investigation, including reports of informants and investigators, and 
associated with an identifiable individual; or (c) reports identifiable 
to an individual compiled at any stage of the process of enforcement of 
the criminal laws from arrest or indictment through release from 
supervision, are exempt from all parts of 5 U.S.C. 552a except 
subsections (b) (Conditions of disclosure); (c) (1) and (2) (Accounting 
of certain disclosures); (e)(4) (A) through (F) (Publication of 
existence and character of system); (e)(6) (Ensure records are accurate, 
relevant, timely, and complete before disclosure to person other than an 
agency and other than pursuant to a Freedom of Information Act request), 
(7) (Restrict recordkeeping on First Amendment rights), (9) (Rules of 
conduct), (10) (Safeguards), and (11) (Routine use publication); and (i) 
(Criminal penalties):
    A. The Investigative Records System maintained by the Assistant 
Inspector General for Investigations, Office of the Inspector General, 
Office of the Secretary (DOT/OST 100).
    B. Police Warrant Files and Central Files maintained by the Federal 
Aviation Administration (DOT/FAA 807).
    C. The Investigative Records System maintained by the Federal 
Aviation Administration regarding criminal investigations conducted by 
offices of Investigations and Security at headquarters and FAA Regional 
and Center Security Divisions (DOT/FAA 815).
    D. General Investigations Record System, maintained by the Office of 
Investigations and Security, Office of the Secretary (DOT/OST 016).
    These exemptions are justified for the following reasons:
    1. From subsection (c)(3), because making available to a record 
subject the accounting of disclosures from records concerning him/her 
would reveal investigative interest by not only DOT but also the 
recipient agency, thereby permitting the record subject to take 
appropriate measures to impede the investigation, as by destroying 
evidence, intimidating potential witnesses, fleeing the area to avoid 
the thrust of the investigation, etc.
    2. From subsections (d), (e)(4) (G) and (H), (f), and (g), because 
granting an individual access to investigative records, and granting 
him/her rights to amend/contest that information, interfere with the 
overall law enforcement process by revealing a pending sensitive 
investigation, possibly identify a confidential source, disclose 
information that would constitute an unwarranted invasion of another 
individual's personal privacy, reveal a sensitive investigative 
technique, or constitute a potential danger to the health or safety of 
law enforcement personnel.
    3. From subsection (e)(1), because it is often impossible to 
determine relevancy or necessity of information in the early stages of 
an investigation. The value of such information is a question of 
judgement and timing: what appears relevant and necessary when collected 
may ultimately be evaluated and viewed as irrelevant and unnecessary to 
an investigation. In addition, DOT may obtain information concerning the 
violation of laws other than those within the scope of its jurisdiction. 
In the interest of effective law

[[Page 98]]

enforcement, DOT should retain this information because it may aid in 
establishing patterns of unlawful activity and provide leads for other 
law enforcement agencies. Further, in obtaining evidence during an 
investigation, information may be provided to DOT that relates to 
matters incidental to the main purpose of the investigation but that may 
be pertinent to the investigative jurisdiction of another agency. Such 
information cannot readily be identified.
    4. From subsection (e)(2), because in a law enforcement 
investigation it is usually counterproductive to collect information to 
the greatest extent practicable directly from the subject of the 
information. It is not always feasible to rely upon the subject of an 
investigation as a source for information that may implicate him/her in 
illegal activities. In addition, collecting information directly from 
the subject could seriously compromise an investigation by prematurely 
revealing its nature and scope, or could provide the subject with an 
opportunity to conceal criminal activities, or intimidate potential 
sources, in order to avoid apprehension.
    5. From subsection (e)(3), because providing such notice to the 
subject of an investigation, or to other individual sources, could 
seriously compromise the investigation by prematurely revealing its 
nature and scope, or could inhibit cooperation, permit the subject to 
evade apprehension, or cause interference with undercover activities.

                      Part II. Specific Exemptions

    A. The following systems of records are exempt from subsection 
(c)(3) (Accounting of Certain Disclosures), (d) (Access to Records), 
(e)(4)(G), (H), and (I) (Agency Requirements), and (f) (Agency Rules) of 
5 U.S.C. 552a, to the extent that they contain investigatory material 
compiled for law enforcement purposes, in accordance 5 U.S.C. 
552a(k)(2):
    1. Investigative Record System (DOT/FAA 815) maintained by the 
Federal Aviation Administration at the Office of Civil Aviation Security 
in Washington, DC; the FAA regional Civil Aviation Security Divisions; 
the Civil Aviation Security Division at the Mike Monroney Aeronautical 
Center in Oklahoma City, Oklahoma; the FAA Civil Aviation Security Staff 
at the FAA Technical Center in Atlantic City, New Jersey; and the 
various Federal Records Centers located throughout the country.
    2. FHWA Investigations Case File System, maintained by the Office of 
Program Review and Investigations, Federal Highway Administration (DOT/
FHWA 214).
    3. Federal Motor Carrier Safety Administration (FMCSA) Enforcement 
Management Information System, maintained by the Chief Counsel, FMCSA 
(DOT/FMCSA 002).
    4. DOT/NHTSA Investigations of Alleged Misconduct or Conflict of 
Interest, maintained by the Associate Administrator for Administration, 
National Highway Traffic Safety Administration (DOT/NHTSA 458).
    5. Civil Aviation Security System (DOT/FAA 813), maintained by the 
Office of Civil Aviation Security Policy and Planning, Federal Aviation 
Administration.
    6. Suspected Unapproved Parts (SUP) Program, maintained by the 
Federal Aviation Administration (DOT/FAA 852).
    7. Motor Carrier Management Information System (MCMIS), maintained 
by the Federal Motor Carrier Safety Administration (DOT/FMCSA 001).
    8. Suspicious Activity Reporting (SAR) database, maintained by the 
Office of Intelligence, Security, and Emergency Response, Office of the 
Secretary.
    9. Departmental Office of Civil Rights System (DOCRS).
    10. Insider Threat Program (DOT/ALL 26).
    These exemptions are justified for the following reasons:
    1. From subsection (c)(3), because making available to a record 
subject the accounting of disclosures from records concerning him/her 
would reveal investigative interest by not only DOT but also the 
recipient agency, thereby permitting the record subject to take 
appropriate measures to impede the investigation, as by destroying 
evidence, intimidating potential witnesses, fleeing the area to avoid 
the thrust of the investigation, etc.
    2. From subsections (d), (e)(4)(G), (H), and (I), and (f), because 
granting an individual access to investigative records, and granting 
him/her access to investigative records with that information, could 
interfere with the overall law enforcement process by revealing a 
pending sensitive investigation, possibly identify a confidential 
source, disclose information that would constitute an unwarranted 
invasion of another individual's personal privacy, reveal a sensitive 
investigative technique, or constitute a potential danger to the health 
or safety of law enforcement personnel.
    B. The following systems of records are exempt from subsections 
(c)(3) (Accounting of Certain Disclosures) and (d) (Access to Records) 
of 5 U.S.C. 552a, in accordance with 5 U.S.C. 552a(k)(2):
    1. General Air Transportation Records on Individuals, maintained by 
various offices in the Federal Aviation Administration (DOT/FAA 847).
    2. Investigative Records System, maintained by the Assistant 
Inspector General for Investigations in the Office of the Inspector 
General (DOT/OST 100).
    3. General Investigations Record System, maintained by the Office of 
Investigations and Security, Office of the Secretary (DOT/OST 016).
    4. Insider Threat Program (DOT/ALL 26).
    These exemptions are justified for the following reasons:

[[Page 99]]

    1. From subsection (c)(3), because making available to a record 
subject the accounting of disclosures from records concerning him/her 
would reveal investigative interest by not only DOT but also the 
recipient agency, thereby permitting the record subject to take 
appropriate measures to impede the investigation, as by destroying 
evidence, intimidating potential witnesses, fleeing the area to avoid 
the thrust of the investigation, etc.
    2. From subsection (d), because granting an individual access to 
investigative records could interfere with the overall law enforcement 
process by revealing a pending sensitive investigation, possibly 
identify a confidential source, disclose information that would 
constitute an unwarranted invasion of another individual's personal 
privacy, reveal a sensitive investigative technique, or constitute a 
potential danger to the health or safety of law enforcement personnel.
    C. The system of records known as the Alaska Railroad Examination of 
Operating Personnel, maintained by the Alaska Railroad, Federal Railroad 
Administration (DOT/FRA 100), is exempt from the provisions of 
subsection (d) of 5 U.S.C. 552a. The release of these records would 
compromise their value as impartial measurement standards for 
appointment and promotion within the Federal Service.
    D. Those portions of the following systems of records consisting of 
investigatory material compiled for the purpose of determining 
suitability, eligibility, or qualifications for Federal civilian 
employment, military service, or access to classified information or 
used to determine potential for promotion in the armed services, are 
exempt from sections (c)(3) (Accounting of Certain Disclosures), (d) 
(Access to Records), (e)(4) (G), (H), and (I) (Agency Requirements), and 
(f) (Agency Rules) of 5 U.S.C. 552a to the extent that disclosure of 
such material would reveal the identity of a source who provided 
information to the Government under an express or, prior to September 
27, 1975, an implied promise of confidentiality (5 U.S.C. 552a(k) (5) 
and (7)):
    1. Investigative Records System, maintained by the Assistant 
Inspector General for Investigations in the Office of the Inspector 
General (DOT/OST 100).
    2. Investigative Record System, maintained by the Federal Aviation 
Administration at FAA Regional and Center Air Transportation Security 
Divisions; the Investigations and Security Division, Aeronautical 
Center; and Office of Investigations and Security, Headquarters, 
Washington, D.C. (DOT/FAA 815).
    3. Files pursuant to suitability for employment with National 
Highway Traffic Safety Administration (DOT/NHTSA-457) containing 
confidential investigatory reports.
    4. Personnel Security Records System, maintained by the Office of 
Investigations and Security, Office of the Secretary (DOT/OST 035).
    The purpose of these exemptions is to prevent disclosure of the 
identities of sources who provide information to the government 
concerning the suitability, eligibility, or qualifications of 
individuals for Federal civilian employment, contracts, access to 
classified information, or appointment or promotion in the armed 
services, and who are expressly or, prior to September 27, 1975, implied 
promised confidentiality (5 U.S.C. 552a(k) (5) and (7)).
    E. Those portions of the following systems of records consisting of 
testing or examination material used solely to determine individual 
qualifications for appointment or promotion in the Federal Service are 
exempt from subsections (c)(3) (Accounting of Certain Disclosures), (d) 
(Access to Records), (e)(4) (G), (H) and (I) (Agency Requirements), and 
(f) (Agency Rules) of 5 U.S.C. 552a:
    1. Reference Files (DOT/NHTSA 457), maintained by the National 
Highway Traffic Safety Administration personnel offices to determine 
fitness for employment prior to hiring.
    The purpose of these exemptions is to preserve the value of these 
records as impartial measurement standards for appointment and promotion 
within the Federal service.
    F. Those portions of the following systems of records which consist 
of information properly classified in the interest of national defense 
or foreign policy in accordance with 5 U.S.C. 552(b)(1) are exempt from 
sections (c)(3) (Accounting of Certain Disclosures), (d) (Access to 
Records), (e)(4) (G), (H) and (I) (Agency Requirements), and (f) (Agency 
Rules) of 5 U.S.C. 552a:
    1. Investigative Record System maintained by the Assistant Inspector 
General for Investigations in the Office of the Inspector General (DOT/
OST 100).
    2. Personnel Security Records System, maintained by the Office of 
Investigations and Security, Office of the Secretary (DOT/OST 035).
    3. Civil Aviation Security System (DOT/FAA 813), maintained by the 
Office of Civil Aviation Security, Federal Aviation Administration.
    4. General Investigations Record System, maintained by the Office of 
Investigations and Security, Office of the Secretary (DOT/OST 016).
    5. Insider Threat Program (DOT/ALL 26).
    The purpose of these exemptions is to prevent the disclosure of 
material authorized to be kept secret in the interest of national 
defense or foreign policy, in accordance with 5 U.S.C. 552(b)(1) and 
552a(k)(1).
    G. Those portions of the following systems of records which consist 
of information properly classified in the interest of national defense 
or foreign policy in accordance with 5

[[Page 100]]

U.S.C. 552a(b)(1) are exempt from subsections (c)(3) (Accounting of 
Certain Disclosures) and (d) (Access to Records) of 5 U.S.C. 552a:
    1. Investigative Record System (DOT/FAA 815) maintained by the 
Federal Aviation Administration at the Office of Civil Aviation Security 
in Washington, DC; the FAA regional Civil Aviation Security Divisions; 
the Civil Aviation Security Division at the Mike Monroney Aeronautical 
Center in Oklahoma City, Oklahoma; the FAA Civil Aviation Security Staff 
at the FAA Technical Center in Atlantic City, New Jersey; and the 
various Federal Records Centers located throughout the country.
    2. Insider Threat Program (DOT/ALL 26).
    The purpose of these exemptions is to prevent the disclosure of 
material authorized to be kept secret in the interest of national 
defense or foreign policy, in accordance with 5 U.S.C. 552(b)(1) and 
552a(k)(1).
    H. The following systems of records are exempt from subsection (d) 
(Access to Records) of the Privacy Act, 5 U.S.C. 552a, to the extent 
that they contain investigatory material compiled for law enforcement 
purposes, in accordance with 5 U.S.C. 552a(k)(2):
    1. Aviation Consumer Complaint Appropriation System, maintained by 
the Office of the Assistant General Counsel for Aviation Enforcement and 
Proceedings in the Office of the Secretary (DOT/OST 102).
    This exemption is justified because granting an individual access to 
investigatory records could interfere with the overall law enforcement 
process by revealing a sensitive investigative technique, or 
confidential sources or information.

    Editorial Note: For Federal Register citations affecting appendix A 
to part 10, see the List of CFR Sections Affected, which appears in the 
Finding Aids section of the printed volume and at www.fdsys.gov.



PART 11_PROTECTION OF HUMAN SUBJECTS--Table of Contents



Sec.
11.101 To what does this policy apply?
11.102 Definitions for purposes of this policy.
11.103 Assuring compliance with this policy--research conducted or 
          supported by any Federal department or agency.
11.104 Exempt research.
11.105 [Reserved]
11.106 [Reserved]
11.107 IRB membership.
11.108 IRB functions and operations.
11.109 IRB review of research.
11.110 Expedited review procedures for certain kinds of research 
          involving no more than minimal risk, and for minor changes in 
          approved research.
11.111 Criteria for IRB approval of research.
11.112 Review by institution.
11.113 Suspension or termination of IRB approval of research.
11.114 Cooperative research.
11.115 IRB records.
11.116 General requirements for informed consent.
11.117 Documentation of informed consent.
11.118 Applications and proposals lacking definite plans for involvement 
          of human subjects.
11.119 Research undertaken without the intention of involving human 
          subjects.
11.120 Evaluation and disposition of applications and proposals for 
          research to be conducted or supported by a Federal department 
          or agency.
11.121 [Reserved]
11.122 Use of Federal funds.
11.123 Early termination of research support: Evaluation of applications 
          and proposals.
11.124 Conditions.

    Authority: 5 U.S.C. 301; 42 U.S.C. 300v-1(b).

    Source: 82 FR 7274, Jan. 19, 2017, unless otherwise noted.



Sec.  11.101  To what does this policy apply?

    (a) Except as detailed in Sec.  11.104, 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 101]]

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.  11.114(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 102]]

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.  
11.101(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.  11.101(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 11.102(l) of the 2018 Requirements (definition of 
research) (instead of Sec.  11.102(d) of the pre-2018 Requirements);
    (2) Section 11.103(d) of the 2018 Requirements (revised 
certification requirement that eliminates IRB review of application or 
proposal) (instead of Sec.  11.103(f) of the pre-2018 Requirements); and
    (3) Section 11.109(f)(1)(i) and (iii) of the 2018 Requirements 
(exceptions to mandated continuing review) (instead of Sec.  11.103(b), 
as related to the requirement for continuing review, and in addition to 
Sec.  11.109, 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 7274, Jan. 19, 2017, as amended at 83 FR 2894, Jan. 22, 2018; 83 
FR 28519, June 19, 2018]



Sec.  11.102  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.

[[Page 103]]

    (d) Federal department or agency refers to a federal department or 
agency (the department or agency itself rather than its bureaus, offices 
or divisions) that takes appropriate administrative action to make this 
policy applicable to the research involving human subjects it conducts, 
supports, or otherwise regulates (e.g., the U.S. Department of Health 
and Human Services, the U.S. Department of Defense, or the Central 
Intelligence Agency).
    (e)(1) Human subject means a living individual about whom an 
investigator (whether professional or student) conducting research:
    (i) Obtains information or biospecimens through intervention or 
interaction with the individual, and uses, studies, or analyzes the 
information or biospecimens; or (ii) Obtains, uses, studies, analyzes, 
or generates identifiable private information or identifiable 
biospecimens.
    (2) Intervention includes both physical procedures by which 
information or biospecimens are gathered (e.g., venipuncture) and 
manipulations of the subject or the subject's environment that are 
performed for research purposes.
    (3) Interaction includes communication or interpersonal contact 
between investigator and subject.
    (4) Private information includes information about behavior that 
occurs in a context in which an individual can reasonably expect that no 
observation or recording is taking place, and information that has been 
provided for specific purposes by an individual and that the individual 
can reasonably expect will not be made public (e.g., a medical record).
    (5) Identifiable private information is private information for 
which the identity of the subject is or may readily be ascertained by 
the investigator or associated with the information.
    (6) An identifiable biospecimen is a biospecimen for which the 
identity of the subject is or may readily be ascertained by the 
investigator or associated with the biospecimen.
    (7) Federal departments or agencies implementing this policy shall:
    (i) Upon consultation with appropriate experts (including experts in 
data matching and re-identification), reexamine the meaning of 
``identifiable private information,'' as defined in paragraph (e)(5) of 
this section, and ``identifiable biospecimen,'' as defined in paragraph 
(e)(6) of this section. This reexamination shall take place within 1 
year and regularly thereafter (at least every 4 years). This process 
will be conducted by collaboration among the Federal departments and 
agencies implementing this policy. If appropriate and permitted by law, 
such Federal departments and agencies may alter the interpretation of 
these terms, including through the use of guidance.
    (ii) Upon consultation with appropriate experts, assess whether 
there are analytic technologies or techniques that should be considered 
by investigators to generate ``identifiable private information,'' as 
defined in paragraph (e)(5) of this section, or an ``identifiable 
biospecimen,'' as defined in paragraph (e)(6) of this section. This 
assessment shall take place within 1 year and regularly thereafter (at 
least every 4 years). This process will be conducted by collaboration 
among the Federal departments and agencies implementing this policy. Any 
such technologies or techniques will be included on a list of 
technologies or techniques that produce identifiable private information 
or identifiable biospecimens. This list will be published in the Federal 
Register after notice and an opportunity for public comment. The 
Secretary, HHS, shall maintain the list on a publicly accessible Web 
site.
    (f) Institution means any public or private entity, or department or 
agency (including federal, state, and other agencies).
    (g) IRB means an institutional review board established in accord 
with and for the purposes expressed in this policy.
    (h) IRB approval means the determination of the IRB that the 
research has been reviewed and may be conducted at an institution within 
the constraints set forth by the IRB and by other institutional and 
federal requirements.
    (i) Legally authorized representative means an individual or 
judicial or other body authorized under applicable

[[Page 104]]

law to consent on behalf of a prospective subject to the subject's 
participation in the procedure(s) involved in the research. If there is 
no applicable law addressing this issue, legally authorized 
representative means an individual recognized by institutional policy as 
acceptable for providing consent in the nonresearch context on behalf of 
the prospective subject to the subject's participation in the 
procedure(s) involved in the research.
    (j) Minimal risk means that the probability and magnitude of harm or 
discomfort anticipated in the research are not greater in and of 
themselves than those ordinarily encountered in daily life or during the 
performance of routine physical or psychological examinations or tests.
    (k) Public health authority means an agency or authority of the 
United States, a state, a territory, a political subdivision of a state 
or territory, an Indian tribe, or a foreign government, or a person or 
entity acting under a grant of authority from or contract with such 
public agency, including the employees or agents of such public agency 
or its contractors or persons or entities to whom it has granted 
authority, that is responsible for public health matters as part of its 
official mandate.
    (l) Research means a systematic investigation, including research 
development, testing, and evaluation, designed to develop or contribute 
to generalizable knowledge. Activities that meet this definition 
constitute research for purposes of this policy, whether or not they are 
conducted or supported under a program that is considered research for 
other purposes. For example, some demonstration and service programs may 
include research activities. For purposes of this part, the following 
activities are deemed not to be research:
    (1) Scholarly and journalistic activities (e.g., oral history, 
journalism, biography, literary criticism, legal research, and 
historical scholarship), including the collection and use of 
information, that focus directly on the specific individuals about whom 
the information is collected.
    (2) Public health surveillance activities, including the collection 
and testing of information or biospecimens, conducted, supported, 
requested, ordered, required, or authorized by a public health 
authority. Such activities are limited to those necessary to allow a 
public health authority to identify, monitor, assess, or investigate 
potential public health signals, onsets of disease outbreaks, or 
conditions of public health importance (including trends, signals, risk 
factors, patterns in diseases, or increases in injuries from using 
consumer products). Such activities include those associated with 
providing timely situational awareness and priority setting during the 
course of an event or crisis that threatens public health (including 
natural or man-made disasters).
    (3) Collection and analysis of information, biospecimens, or records 
by or for a criminal justice agency for activities authorized by law or 
court order solely for criminal justice or criminal investigative 
purposes.
    (4) Authorized operational activities (as determined by each agency) 
in support of intelligence, homeland security, defense, or other 
national security missions.
    (m) Written, or in writing, for purposes of this part, refers to 
writing on a tangible medium (e.g., paper) or in an electronic format.



Sec.  11.103  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.  11.104, 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

[[Page 105]]

accepted in lieu of requiring submission of an assurance, reports 
(except certification) required by this policy to be made to department 
and agency heads shall also be made to the Office for Human Research 
Protections, HHS, or any successor office. Federal departments and 
agencies will conduct or support research covered by this policy only if 
the institution has provided an assurance that it will comply with the 
requirements of this policy, as provided in this section, and only if 
the institution has certified to the department or agency head that the 
research has been reviewed and approved by an IRB (if such certification 
is required by Sec.  11.103(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.  
11.101(i) or exempted under Sec.  11.104. 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.  11.104(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.  11.104  Exempt research.

    (a) Unless otherwise required by law or by department or agency 
heads, research activities in which the only involvement of human 
subjects will be in one or more of the categories in paragraph (d) of 
this section are exempt from the requirements of this policy, except 
that such activities must comply with the requirements of this section 
and as specified in each category.
    (b) Use of the exemption categories for research subject to the 
requirements of subparts B, C, and D: Application of the exemption 
categories to research subject to the requirements of 45 CFR part 46, 
subparts B, C, and D, is as follows:
    (1) Subpart B. Each of the exemptions at this section may be applied 
to research subject to subpart B if the conditions of the exemption are 
met.
    (2) Subpart C. The exemptions at this section do not apply to 
research subject to subpart C, except for research aimed at involving a 
broader subject population that only incidentally includes prisoners.
    (3) Subpart D. The exemptions at paragraphs (d)(1), (4), (5), (6), 
(7), and (8) of this section may be applied to research subject to 
subpart D if the conditions of the exemption are met. Paragraphs 
(d)(2)(i) and (ii) of this section only may apply to research subject to 
subpart D involving educational tests or the observation of public 
behavior when the investigator(s) do not participate in the activities 
being observed. Paragraph (d)(2)(iii) of this section may not be applied 
to research subject to subpart D.
    (c) [Reserved]

[[Page 106]]

    (d) Except as described in paragraph (a) of this section, the 
following categories of human subjects research are exempt from this 
policy:
    (1) Research, conducted in established or commonly accepted 
educational settings, that specifically involves normal educational 
practices that are not likely to adversely impact students' opportunity 
to learn required educational content or the assessment of educators who 
provide instruction. This includes most research on regular and special 
education instructional strategies, and research on the effectiveness of 
or the comparison among instructional techniques, curricula, or 
classroom management methods.
    (2) Research that only includes interactions involving educational 
tests (cognitive, diagnostic, aptitude, achievement), survey procedures, 
interview procedures, or observation of public behavior (including 
visual or auditory recording) if at least one of the following criteria 
is met:
    (i) The information obtained is recorded by the investigator in such 
a manner that the identity of the human subjects cannot readily be 
ascertained, directly or through identifiers linked to the subjects;
    (ii) Any disclosure of the human subjects' responses outside the 
research would not reasonably place the subjects at risk of criminal or 
civil liability or be damaging to the subjects' financial standing, 
employability, educational advancement, or reputation; or
    (iii) The information obtained is recorded by the investigator in 
such a manner that the identity of the human subjects can readily be 
ascertained, directly or through identifiers linked to the subjects, and 
an IRB conducts a limited IRB review to make the determination required 
by Sec.  11.111(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.  11.111(a)(7).
    (ii) For the purpose of this provision, benign behavioral 
interventions are brief in duration, harmless, painless, not physically 
invasive, not likely to have a significant adverse lasting impact on the 
subjects, and the investigator has no reason to think the subjects will 
find the interventions offensive or embarrassing. Provided all such 
criteria are met, examples of such benign behavioral interventions would 
include having the subjects play an online game, having them solve 
puzzles under various noise conditions, or having them decide how to 
allocate a nominal amount of received cash between themselves and 
someone else.
    (iii) If the research involves deceiving the subjects regarding the 
nature or purposes of the research, this exemption is not applicable 
unless the subject authorizes the deception through a prospective 
agreement to participate in research in circumstances in which the 
subject is informed that he or she will be unaware of or misled 
regarding the nature or purposes of the research.
    (4) Secondary research for which consent is not required: Secondary 
research uses of identifiable private information or identifiable 
biospecimens, if at least one of the following criteria is met:
    (i) The identifiable private information or identifiable 
biospecimens are publicly available;

[[Page 107]]

    (ii) Information, which may include information about biospecimens, 
is recorded by the investigator in such a manner that the identity of 
the human subjects cannot readily be ascertained directly or through 
identifiers linked to the subjects, the investigator does not contact 
the subjects, and the investigator will not re-identify subjects;
    (iii) The research involves only information collection and analysis 
involving the investigator's use of identifiable health information when 
that use is regulated under 45 CFR parts 160 and 164, subparts A and E, 
for the purposes of ``health care operations'' or ``research'' as those 
terms are defined at 45 CFR 164.501 or for ``public health activities 
and purposes'' as described under 45 CFR 164.512(b); or
    (iv) The research is conducted by, or on behalf of, a Federal 
department or agency using government-generated or government-collected 
information obtained for nonresearch activities, if the research 
generates identifiable private information that is or will be maintained 
on information technology that is subject to and in compliance with 
section 208(b) of the E-Government Act of 2002, 44 U.S.C. 3501 note, if 
all of the identifiable private information collected, used, or 
generated as part of the activity will be maintained in systems of 
records subject to the Privacy Act of 1974, 5 U.S.C. 552a, and, if 
applicable, the information used in the research was collected subject 
to the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq.
    (5) Research and demonstration projects that are conducted or 
supported by a Federal department or agency, or otherwise subject to the 
approval of department or agency heads (or the approval of the heads of 
bureaus or other subordinate agencies that have been delegated authority 
to conduct the research and demonstration projects), and that are 
designed to study, evaluate, improve, or otherwise examine public 
benefit or service programs, including procedures for obtaining benefits 
or services under those programs, possible changes in or alternatives to 
those programs or procedures, or possible changes in methods or levels 
of payment for benefits or services under those programs. Such projects 
include, but are not limited to, internal studies by Federal employees, 
and studies under contracts or consulting arrangements, cooperative 
agreements, or grants. Exempt projects also include waivers of otherwise 
mandatory requirements using authorities such as sections 1115 and 1115A 
of the Social Security Act, as amended.
    (i) Each Federal department or agency conducting or supporting the 
research and demonstration projects must establish, on a publicly 
accessible Federal Web site or in such other manner as the department or 
agency head may determine, a list of the research and demonstration 
projects that the Federal department or agency conducts or supports 
under this provision. The research or demonstration project must be 
published on this list prior to commencing the research involving human 
subjects.
    (ii) [Reserved]
    (6) Taste and food quality evaluation and consumer acceptance 
studies:
    (i) If wholesome foods without additives are consumed, or
    (ii) If a food is consumed that contains a food ingredient at or 
below the level and for a use found to be safe, or agricultural chemical 
or environmental contaminant at or below the level found to be safe, by 
the Food and Drug Administration or approved by the Environmental 
Protection Agency or the Food Safety and Inspection Service of the U.S. 
Department of Agriculture.
    (7) Storage or maintenance for secondary research for which broad 
consent is required: Storage or maintenance of identifiable private 
information or identifiable biospecimens for potential secondary 
research use if an IRB conducts a limited IRB review and makes the 
determinations required by Sec.  11.111(a)(8).
    (8) Secondary research for which broad consent is required: Research 
involving the use of identifiable private information or identifiable 
biospecimens for secondary research use, if the following criteria are 
met:
    (i) Broad consent for the storage, maintenance, and secondary 
research use of the identifiable private information or identifiable 
biospecimens was

[[Page 108]]

obtained in accordance with Sec.  11.116(a)(1) through (4), (a)(6), and 
(d);
    (ii) Documentation of informed consent or waiver of documentation of 
consent was obtained in accordance with Sec.  11.117;
    (iii) An IRB conducts a limited IRB review and makes the 
determination required by Sec.  11.111(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.  11.105-11.106  [Reserved]



Sec.  11.107  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.  11.108  IRB functions and operations.

    (a) In order to fulfill the requirements of this policy each IRB 
shall:
    (1) Have access to meeting space and sufficient staff to support the 
IRB's review and recordkeeping duties;
    (2) Prepare and maintain a current list of the IRB members 
identified by name; earned degrees; representative capacity; indications 
of experience such as board certifications or licenses sufficient to 
describe each member's chief anticipated contributions to IRB 
deliberations; and any employment or other relationship between each 
member and the institution, for example, full-time employee, part-time 
employee, member of governing panel or board, stockholder, paid or 
unpaid consultant;
    (3) Establish and follow written procedures for:
    (i) Conducting its initial and continuing review of research and for 
reporting its findings and actions to the investigator and the 
institution;
    (ii) Determining which projects require review more often than 
annually and which projects need verification from sources other than 
the investigators that no material changes have occurred since previous 
IRB review; and

[[Page 109]]

    (iii) Ensuring prompt reporting to the IRB of proposed changes in a 
research activity, and for ensuring that investigators will conduct the 
research activity in accordance with the terms of the IRB approval until 
any proposed changes have been reviewed and approved by the IRB, except 
when necessary to eliminate apparent immediate hazards to the subject.
    (4) Establish and follow written procedures for ensuring prompt 
reporting to the IRB; appropriate institutional officials; the 
department or agency head; and the Office for Human Research 
Protections, HHS, or any successor office, or the equivalent office 
within the appropriate Federal department or agency of
    (i) Any unanticipated problems involving risks to subjects or others 
or any serious or continuing noncompliance with this policy or the 
requirements or determinations of the IRB; and
    (ii) Any suspension or termination of IRB approval.
    (b) Except when an expedited review procedure is used (as described 
in Sec.  11.110), 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.  11.109  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.  11.104 for which limited IRB review is a condition of 
exemption (under Sec.  11.104(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.  11.116. The IRB may require 
that information, in addition to that specifically mentioned in Sec.  
11.116, 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.  11.117.
    (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.  
11.109(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.  
11.110;
    (ii) Research reviewed by the IRB in accordance with the limited IRB 
review described in Sec.  11.104(d)(2)(iii), (d)(3)(i)(C), or (d)(7) or 
(8);
    (iii) Research that has progressed to the point that it involves 
only one or both of the following, which are part of the IRB-approved 
study:
    (A) Data analysis, including analysis of identifiable private 
information or identifiable biospecimens, or
    (B) Accessing follow-up clinical data from procedures that subjects 
would undergo as part of clinical care.
    (2) [Reserved]
    (g) An IRB shall have authority to observe or have a third party 
observe the consent process and the research.

(Approved by the Office of Management and Budget under Control Number 
0990-0260)

[[Page 110]]



Sec.  11.110  Expedited review procedures for certain kinds of research
involving no more than minimal risk, and for minor changes in approved
research.

    (a) The Secretary of HHS has established, and published as a Notice 
in the Federal Register, a list of categories of research that may be 
reviewed by the IRB through an expedited review procedure. The Secretary 
will evaluate the list at least every 8 years and amend it, as 
appropriate, after consultation with other federal departments and 
agencies and after publication in the Federal Register for public 
comment. A copy of the list is available from the Office for Human 
Research Protections, HHS, or any successor office.
    (b)(1) An IRB may use the expedited review procedure to review the 
following:
    (i) Some or all of the research appearing on the list described in 
paragraph (a) of this section, unless the reviewer determines that the 
study involves more than minimal risk;
    (ii) Minor changes in previously approved research during the period 
for which approval is authorized; or
    (iii) Research for which limited IRB review is a condition of 
exemption under Sec.  11.104(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.  11.108(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.  11.111  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.  11.116.
    (5) Informed consent will be appropriately documented or 
appropriately waived in accordance with Sec.  11.117.
    (6) When appropriate, the research plan makes adequate provision for 
monitoring the data collected to ensure the safety of subjects.

[[Page 111]]

    (7) When appropriate, there are adequate provisions to protect the 
privacy of subjects and to maintain the confidentiality of data.
    (i) The Secretary of HHS will, after consultation with the Office of 
Management and Budget's privacy office and other Federal departments and 
agencies that have adopted this policy, issue guidance to assist IRBs in 
assessing what provisions are adequate to protect the privacy of 
subjects and to maintain the confidentiality of data.
    (ii) [Reserved]
    (8) For purposes of conducting the limited IRB review required by 
Sec.  11.104(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.  11.116(a)(1)-(4), 
(a)(6), and (d);
    (ii) Broad consent is appropriately documented or waiver of 
documentation is appropriate, in accordance with Sec.  11.117; 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.  11.112  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.  11.113  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.  11.114  Cooperative Research.

    (a) Cooperative research projects are those projects covered by this 
policy that involve more than one institution. In the conduct of 
cooperative research projects, each institution is responsible for 
safeguarding the rights and welfare of human subjects and for complying 
with this policy.
    (b)(1) Any institution located in the United States that is engaged 
in cooperative research must rely upon approval by a single IRB for that 
portion of the research that is conducted in the United States. The 
reviewing IRB will be identified by the Federal department or agency 
supporting or conducting the research or proposed by the lead 
institution subject to the acceptance of the Federal department or 
agency supporting the research.
    (2) The following research is not subject to this provision:
    (i) Cooperative research for which more than single IRB review is 
required by law (including tribal law passed by the official governing 
body of an American Indian or Alaska Native tribe); or
    (ii) Research for which any Federal department or agency supporting 
or conducting the research determines and documents that the use of a 
single IRB is not appropriate for the particular context.
    (c) For research not subject to paragraph (b) of this section, an 
institution participating in a cooperative project may enter into a 
joint review arrangement, rely on the review of another

[[Page 112]]

IRB, or make similar arrangements for avoiding duplication of effort.



Sec.  11.115  IRB Records.

    (a) An institution, or when appropriate an IRB, shall prepare and 
maintain adequate documentation of IRB activities, including the 
following:
    (1) Copies of all research proposals reviewed, scientific 
evaluations, if any, that accompany the proposals, approved sample 
consent forms, progress reports submitted by investigators, and reports 
of injuries to subjects.
    (2) Minutes of IRB meetings, which shall be in sufficient detail to 
show attendance at the meetings; actions taken by the IRB; the vote on 
these actions including the number of members voting for, against, and 
abstaining; the basis for requiring changes in or disapproving research; 
and a written summary of the discussion of controverted issues and their 
resolution.
    (3) Records of continuing review activities, including the rationale 
for conducting continuing review of research that otherwise would not 
require continuing review as described in Sec.  11.109(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.  
11.108(a)(2).
    (6) Written procedures for the IRB in the same detail as described 
in Sec.  11.108(a)(3) and (4).
    (7) Statements of significant new findings provided to subjects, as 
required by Sec.  11.116(c)(5).
    (8) The rationale for an expedited reviewer's determination under 
Sec.  11.110(b)(1)(i) that research appearing on the expedited review 
list described in Sec.  11.110(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.  11.103(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.  11.116  General Requirements for Informed Consent.

    (a) General. General requirements for informed consent, whether 
written or oral, are set forth in this paragraph and apply to consent 
obtained in accordance with the requirements set forth in paragraphs (b) 
through (d) of this section. Broad consent may be obtained in lieu of 
informed consent obtained in accordance with paragraphs (b) and (c) of 
this section only with respect to the storage, maintenance, and 
secondary research uses of identifiable private information and 
identifiable biospecimens. Waiver or alteration of consent in research 
involving public benefit and service programs conducted by or subject to 
the approval of state or local officials is described in paragraph (e) 
of this section. General waiver or alteration of informed consent is 
described in paragraph (f) of this section. Except as provided elsewhere 
in this policy:
    (1) Before involving a human subject in research covered by this 
policy, an investigator shall obtain the legally effective informed 
consent of the subject or the subject's legally authorized 
representative.
    (2) An investigator shall seek informed consent only under 
circumstances that provide the prospective subject or the legally 
authorized representative sufficient opportunity to discuss and consider 
whether or not to participate and that minimize the possibility of 
coercion or undue influence.
    (3) The information that is given to the subject or the legally 
authorized representative shall be in language understandable to the 
subject or the legally authorized representative.
    (4) The prospective subject or the legally authorized representative 
must be provided with the information that a reasonable person would 
want to have in order to make an informed decision about whether to 
participate,

[[Page 113]]

and an opportunity to discuss that information.
    (5) Except for broad consent obtained in accordance with paragraph 
(d) of this section:
    (i) Informed consent must begin with a concise and focused 
presentation of the key information that is most likely to assist a 
prospective subject or legally authorized representative in 
understanding the reasons why one might or might not want to participate 
in the research. This part of the informed consent must be organized and 
presented in a way that facilitates comprehension.
    (ii) Informed consent as a whole must present information in 
sufficient detail relating to the research, and must be organized and 
presented in a way that does not merely provide lists of isolated facts, 
but rather facilitates the prospective subject's or legally authorized 
representative's understanding of the reasons why one might or might not 
want to participate.
    (6) No informed consent may include any exculpatory language through 
which the subject or the legally authorized representative is made to 
waive or appear to waive any of the subject's legal rights, or releases 
or appears to release the investigator, the sponsor, the institution, or 
its agents from liability for negligence.
    (b) Basic elements of informed consent. Except as provided in 
paragraph (d), (e), or (f) of this section, in seeking informed consent 
the following information shall be provided to each subject or the 
legally authorized representative:
    (1) A statement that the study involves research, an explanation of 
the purposes of the research and the expected duration of the subject's 
participation, a description of the procedures to be followed, and 
identification of any procedures that are experimental;
    (2) A description of any reasonably foreseeable risks or discomforts 
to the subject;
    (3) A description of any benefits to the subject or to others that 
may reasonably be expected from the research;
    (4) A disclosure of appropriate alternative procedures or courses of 
treatment, if any, that might be advantageous to the subject;
    (5) A statement describing the extent, if any, to which 
confidentiality of records identifying the subject will be maintained;
    (6) For research involving more than minimal risk, an explanation as 
to whether any compensation and an explanation as to whether any medical 
treatments are available if injury occurs and, if so, what they consist 
of, or where further information may be obtained;
    (7) An explanation of whom to contact for answers to pertinent 
questions about the research and research subjects' rights, and whom to 
contact in the event of a research-related injury to the subject;
    (8) A statement that participation is voluntary, refusal to 
participate will involve no penalty or loss of benefits to which the 
subject is otherwise entitled, and the subject may discontinue 
participation at any time without penalty or loss of benefits to which 
the subject is otherwise entitled; and
    (9) One of the following statements about any research that involves 
the collection of identifiable private information or identifiable 
biospecimens:
    (i) A statement that identifiers might be removed from the 
identifiable private information or identifiable biospecimens and that, 
after such removal, the information or biospecimens could be used for 
future research studies or distributed to another investigator for 
future research studies without additional informed consent from the 
subject or the legally authorized representative, if this might be a 
possibility; or
    (ii) A statement that the subject's information or biospecimens 
collected as part of the research, even if identifiers are removed, will 
not be used or distributed for future research studies.
    (c) Additional elements of informed consent. Except as provided in 
paragraph (d), (e), or (f) of this section, one or more of the following 
elements of information, when appropriate, shall also be provided to 
each subject or the legally authorized representative:
    (1) A statement that the particular treatment or procedure may 
involve risks to the subject (or to the embryo

[[Page 114]]

or fetus, if the subject is or may become pregnant) that are currently 
unforeseeable;
    (2) Anticipated circumstances under which the subject's 
participation may be terminated by the investigator without regard to 
the subject's or the legally authorized representative's consent;
    (3) Any additional costs to the subject that may result from 
participation in the research;
    (4) The consequences of a subject's decision to withdraw from the 
research and procedures for orderly termination of participation by the 
subject;
    (5) A statement that significant new findings developed during the 
course of the research that may relate to the subject's willingness to 
continue participation will be provided to the subject;
    (6) The approximate number of subjects involved in the study;
    (7) A statement that the subject's biospecimens (even if identifiers 
are removed) may be used for commercial profit and whether the subject 
will or will not share in this commercial profit;
    (8) A statement regarding whether clinically relevant research 
results, including individual research results, will be disclosed to 
subjects, and if so, under what conditions; and
    (9) For research involving biospecimens, whether the research will 
(if known) or might include whole genome sequencing (i.e., sequencing of 
a human germline or somatic specimen with the intent to generate the 
genome or exome sequence of that specimen).
    (d) Elements of broad consent for the storage, maintenance, and 
secondary research use of identifiable private information or 
identifiable biospecimens. Broad consent for the storage, maintenance, 
and secondary research use of identifiable private information or 
identifiable biospecimens (collected for either research studies other 
than the proposed research or nonresearch purposes) is permitted as an 
alternative to the informed consent requirements in paragraphs (b) and 
(c) of this section. If the subject or the legally authorized 
representative is asked to provide broad consent, the following shall be 
provided to each subject or the subject's legally authorized 
representative:
    (1) The information required in paragraphs (b)(2), (b)(3), (b)(5), 
and (b)(8) and, when appropriate, (c)(7) and (9) of this section;
    (2) A general description of the types of research that may be 
conducted with the identifiable private information or identifiable 
biospecimens. This description must include sufficient information such 
that a reasonable person would expect that the broad consent would 
permit the types of research conducted;
    (3) A description of the identifiable private information or 
identifiable biospecimens that might be used in research, whether 
sharing of identifiable private information or identifiable biospecimens 
might occur, and the types of institutions or researchers that might 
conduct research with the identifiable private information or 
identifiable biospecimens;
    (4) A description of the period of time that the identifiable 
private information or identifiable biospecimens may be stored and 
maintained (which period of time could be indefinite), and a description 
of the period of time that the identifiable private information or 
identifiable biospecimens may be used for research purposes (which 
period of time could be indefinite);
    (5) Unless the subject or legally authorized representative will be 
provided details about specific research studies, a statement that they 
will not be informed of the details of any specific research studies 
that might be conducted using the subject's identifiable private 
information or identifiable biospecimens, including the purposes of the 
research, and that they might have chosen not to consent to some of 
those specific research studies;
    (6) Unless it is known that clinically relevant research results, 
including individual research results, will be disclosed to the subject 
in all circumstances, a statement that such results may not be disclosed 
to the subject; and
    (7) An explanation of whom to contact for answers to questions about 
the subject's rights and about storage and use of the subject's 
identifiable private

[[Page 115]]

information or identifiable biospecimens, and whom to contact in the 
event of a research-related harm.
    (e) Waiver or alteration of consent in research involving public 
benefit and service programs conducted by or subject to the approval of 
state or local officials--(1) Waiver. An IRB may waive the requirement 
to obtain informed consent for research under paragraphs (a) through (c) 
of this section, provided the IRB satisfies the requirements of 
paragraph (e)(3) of this section. If an individual was asked to provide 
broad consent for the storage, maintenance, and secondary research use 
of identifiable private information or identifiable biospecimens in 
accordance with the requirements at paragraph (d) of this section, and 
refused to consent, an IRB cannot waive consent for the storage, 
maintenance, or secondary research use of the identifiable private 
information or identifiable biospecimens.
    (2) Alteration. An IRB may approve a consent procedure that omits 
some, or alters some or all, of the elements of informed consent set 
forth in paragraphs (b) and (c) of this section provided the IRB 
satisfies the requirements of paragraph (e)(3) of this section. An IRB 
may not omit or alter any of the requirements described in paragraph (a) 
of this section. If a broad consent procedure is used, an IRB may not 
omit or alter any of the elements required under paragraph (d) of this 
section.
    (3) Requirements for waiver and alteration. In order for an IRB to 
waive or alter consent as described in this subsection, the IRB must 
find and document that:
    (i) The research or demonstration project is to be conducted by or 
subject to the approval of state or local government officials and is 
designed to study, evaluate, or otherwise examine:
    (A) Public benefit or service programs;
    (B) Procedures for obtaining benefits or services under those 
programs;
    (C) Possible changes in or alternatives to those programs or 
procedures; or
    (D) Possible changes in methods or levels of payment for benefits or 
services under those programs; and
    (ii) The research could not practicably be carried out without the 
waiver or alteration.
    (f) General waiver or alteration of consent--(1) Waiver. An IRB may 
waive the requirement to obtain informed consent for research under 
paragraphs (a) through (c) of this section, provided the IRB satisfies 
the requirements of paragraph (f)(3) of this section. If an individual 
was asked to provide broad consent for the storage, maintenance, and 
secondary research use of identifiable private information or 
identifiable biospecimens in accordance with the requirements at 
paragraph (d) of this section, and refused to consent, an IRB cannot 
waive consent for the storage, maintenance, or secondary research use of 
the identifiable private information or identifiable biospecimens.
    (2) Alteration. An IRB may approve a consent procedure that omits 
some, or alters some or all, of the elements of informed consent set 
forth in paragraphs (b) and (c) of this section provided the IRB 
satisfies the requirements of paragraph (f)(3) of this section. An IRB 
may not omit or alter any of the requirements described in paragraph (a) 
of this section. If a broad consent procedure is used, an IRB may not 
omit or alter any of the elements required under paragraph (d) of this 
section.
    (3) Requirements for waiver and alteration. In order for an IRB to 
waive or alter consent as described in this subsection, the IRB must 
find and document that:
    (i) The research involves no more than minimal risk to the subjects;
    (ii) The research could not practicably be carried out without the 
requested waiver or alteration;
    (iii) If the research involves using identifiable private 
information or identifiable biospecimens, the research could not 
practicably be carried out without using such information or 
biospecimens in an identifiable format;
    (iv) The waiver or alteration will not adversely affect the rights 
and welfare of the subjects; and
    (v) Whenever appropriate, the subjects or legally authorized 
representatives will be provided with additional pertinent information 
after participation.

[[Page 116]]

    (g) Screening, recruiting, or determining eligibility. An IRB may 
approve a research proposal in which an investigator will obtain 
information or biospecimens for the purpose of screening, recruiting, or 
determining the eligibility of prospective subjects without the informed 
consent of the prospective subject or the subject's legally authorized 
representative, if either of the following conditions are met:
    (1) The investigator will obtain information through oral or written 
communication with the prospective subject or legally authorized 
representative, or
    (2) The investigator will obtain identifiable private information or 
identifiable biospecimens by accessing records or stored identifiable 
biospecimens.
    (h) Posting of clinical trial consent form. (1) For each clinical 
trial conducted or supported by a Federal department or agency, one IRB-
approved informed consent form used to enroll subjects must be posted by 
the awardee or the Federal department or agency component conducting the 
trial on a publicly available Federal Web site that will be established 
as a repository for such informed consent forms.
    (2) If the Federal department or agency supporting or conducting the 
clinical trial determines that certain information should not be made 
publicly available on a Federal Web site (e.g. confidential commercial 
information), such Federal department or agency may permit or require 
redactions to the information posted.
    (3) The informed consent form must be posted on the Federal Web site 
after the clinical trial is closed to recruitment, and no later than 60 
days after the last study visit by any subject, as required by the 
protocol.
    (i) Preemption. The informed consent requirements in this policy are 
not intended to preempt any applicable Federal, state, or local laws 
(including tribal laws passed by the official governing body of an 
American Indian or Alaska Native tribe) that require additional 
information to be disclosed in order for informed consent to be legally 
effective.
    (j) Emergency medical care. Nothing in this policy is intended to 
limit the authority of a physician to provide emergency medical care, to 
the extent the physician is permitted to do so under applicable Federal, 
state, or local law (including tribal law passed by the official 
governing body of an American Indian or Alaska Native tribe).

(Approved by the Office of Management and Budget under Control Number 
0990-0260)



Sec.  11.117  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.  11.116. 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.  11.116 have been 
presented orally to the subject or the subject's legally authorized 
representative, and that the key information required by Sec.  
11.116(a)(5)(i) was presented first to the subject, before other 
information, if any, was provided. The IRB shall approve a written 
summary of what is to be said to the subject or the legally authorized 
representative. When this method is used, there shall be a witness to 
the oral presentation. Only the short form itself is to be signed by the 
subject or the subject's legally authorized representative. However, the 
witness shall sign both the short form and a copy of the summary, and 
the person actually obtaining consent shall sign a copy of the summary. 
A copy of the summary shall be given to the subject or the subject's

[[Page 117]]

legally authorized representative, in addition to a copy of the short 
form.
    (c)(1) An IRB may waive the requirement for the investigator to 
obtain a signed informed consent form for some or all subjects if it 
finds any of the following:
    (i) That the only record linking the subject and the research would 
be the informed consent form and the principal risk would be potential 
harm resulting from a breach of confidentiality. Each subject (or 
legally authorized representative) will be asked whether the subject 
wants documentation linking the subject with the research, and the 
subject's wishes will govern;
    (ii) That the research presents no more than minimal risk of harm to 
subjects and involves no procedures for which written consent is 
normally required outside of the research context; or
    (iii) If the subjects or legally authorized representatives are 
members of a distinct cultural group or community in which signing forms 
is not the norm, that the research presents no more than minimal risk of 
harm to subjects and provided there is an appropriate alternative 
mechanism for documenting that informed consent was obtained.
    (2) In cases in which the documentation requirement is waived, the 
IRB may require the investigator to provide subjects or legally 
authorized representatives with a written statement regarding the 
research.

(Approved by the Office of Management and Budget under Control Number 
0990-0260)



Sec.  11.118  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.  
11.101(i) or exempted under Sec.  11.104, 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.  11.119  Research undertaken without the intention of involving
human subjects.

    Except for research waived under Sec.  11.101(i) or exempted under 
Sec.  11.104, 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.  11.120  Evaluation and disposition of applications and proposals
for research to be conducted or supported by a Federal department or
agency.

    (a) The department or agency head will evaluate all applications and 
proposals involving human subjects submitted to the Federal department 
or agency through such officers and employees of the Federal department 
or agency and such experts and consultants as the department or agency 
head determines to be appropriate. This evaluation will take into 
consideration the risks to the subjects, the adequacy of protection 
against these risks, the potential benefits of the research to the 
subjects and others, and the importance of the knowledge gained or to be 
gained.
    (b) On the basis of this evaluation, the department or agency head 
may approve or disapprove the application or proposal, or enter into 
negotiations to develop an approvable one.

[[Page 118]]



Sec.  11.121  [Reserved]



Sec.  11.122  Use of Federal funds.

    Federal funds administered by a Federal department or agency may not 
be expended for research involving human subjects unless the 
requirements of this policy have been satisfied.



Sec.  11.123  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.  11.124  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 15_PROTECTION OF SENSITIVE SECURITY INFORMATION--Table of Contents



Sec.
15.1 Scope.
15.3 Terms used in this part.
15.5 Sensitive security information.
15.7 Covered persons.
15.9 Restrictions on the disclosure of SSI.
15.11 Persons with a need to know.
15.13 Marking SSI.
15.15 SSI disclosed by DOT.
15.17 Consequences of unauthorized disclosure of SSI.
15.19 Destruction of SSI.

    Authority: 49 U.S.C. 40119.

    Source: 69 FR 28078, May 18, 2004, unless otherwise noted.



Sec.  15.1  Scope.

    (a) Applicability. This part governs the maintenance, safeguarding, 
and disclosure of records and information that the Secretary of DOT has 
determined to be Sensitive Security Information, as defined in Sec.  
15.5. This part does not apply to the maintenance, safeguarding, or 
disclosure of classified national security information, as defined by 
Executive Order 12968, or to other sensitive unclassified information 
that is not SSI, but that nonetheless may be exempt from public 
disclosure under the Freedom of Information Act. In addition, in the 
case of information that has been designated as critical infrastructure 
information under section 214 of the Homeland Security Act, the receipt, 
maintenance, or disclosure of such information by a Federal agency or 
employee is governed by section 214 and any implementing regulations, 
not by this part.
    (b) Delegation. The authority of the Secretary under this part may 
be further delegated within DOT.



Sec.  15.3  Terms used in this part.

    In addition to the terms in Sec.  15.3 of this chapter, the 
following terms apply in this part:
    Administrator means the Under Secretary of Transportation for 
Security referred to in 49 U.S.C. 114(b), or his or her designee.
    Coast Guard means the United States Coast Guard.
    Covered person means any organization, entity, individual, or other 
person described in Sec.  15.7. In the case of an individual, covered 
person includes any individual applying for employment in a position 
that would be a covered person, or in training for such a position, 
regardless of whether that individual is

[[Page 119]]

receiving a wage, salary, or other form of payment. Covered person 
includes a person applying for certification or other form of approval 
that, if granted, would make the person a covered person described in 
Sec.  15.7.
    DHS means the Department of Homeland Security and any directorate, 
bureau, or other component within the Department of Homeland Security, 
including the United States Coast Guard.
    DOT means the Department of Transportation and any operating 
administration, entity, or office within the Department of 
Transportation, including the Saint Lawrence Seaway Development 
Corporation and the Bureau of Transportation Statistics.
    Federal Flight Deck Officer means a pilot participating in the 
Federal Flight Deck Officer Program under 49 U.S.C. 44921 and 
implementing regulations.
    Maritime facility means any facility as defined in 33 CFR part 101.
    Record includes any means by which information is preserved, 
irrespective of format, including a book, paper, drawing, map, 
recording, tape, film, photograph, machine-readable material, and any 
information stored in an electronic format. The term record also 
includes any draft, proposed, or recommended change to any record.
    Security contingency plan means a plan detailing response procedures 
to address a transportation security incident, threat assessment, or 
specific threat against transportation, including details of 
preparation, response, mitigation, recovery, and reconstitution 
procedures, continuity of government, continuity of transportation 
operations, and crisis management.
    Security program means a program or plan and any amendments 
developed for the security of the following, including any comments, 
instructions, or implementing guidance:
    (1) An airport, aircraft, or aviation cargo operation;
    (2) A maritime facility, vessel, or port area; or
    (3) A transportation-related automated system or network for 
information processing, control, and communications.
    Security screening means evaluating a person or property to 
determine whether either poses a threat to security.
    SSI means sensitive security information, as described in Sec.  
15.5.
    Threat image projection system means an evaluation tool that 
involves periodic presentation of fictional threat images to operators 
and is used in connection with x-ray or explosives detection systems 
equipment.
    TSA means the Transportation Security Administration.
    Vulnerability assessment means any review, audit, or other 
examination of the security of a transportation infrastructure asset; 
airport; maritime facility, port area, vessel, aircraft, train, 
commercial motor vehicle, or pipeline, or a transportation-related 
automated system or network, to determine its vulnerability to unlawful 
interference, whether during the conception, planning, design, 
construction, operation, or decommissioning phase. A vulnerability 
assessment may include proposed, recommended, or directed actions or 
countermeasures to address security concerns.



Sec.  15.5  Sensitive security information.

    (a) In general. In accordance with 49 U.S.C. 40119(b)(1), SSI is 
information obtained or developed in the conduct of security activities, 
including research and development, the disclosure of which the 
Secretary of DOT has determined would--
    (1) Constitute an unwarranted invasion of privacy (including, but 
not limited to, information contained in any personnel, medical, or 
similar file);
    (2) Reveal trade secrets or privileged or confidential information 
obtained from any person; or
    (3) Be detrimental to transportation safety.
    (b) Information constituting SSI. Except as otherwise provided in 
writing by the Secretary of DOT in the interest of public safety or in 
furtherance of transportation security, the following information, and 
records containing such information, constitute SSI:
    (1) Security programs and contingency plans. Any security program or 
security contingency plan issued, established, required, received, or 
approved by DOT or DHS, including--

[[Page 120]]

    (i) Any aircraft operator or airport operator security program or 
security contingency plan under this chapter;
    (ii) Any vessel, maritime facility, or port area security plan 
required or directed under Federal law;
    (iii) Any national or area security plan prepared under 46 U.S.C. 
70103; and
    (iv) Any security incident response plan established under 46 U.S.C. 
70104.
    (2) Security Directives. Any Security Directive or order--
    (i) Issued by TSA under 49 CFR 1542.303, 1544.305, or other 
authority;
    (ii) Issued by the Coast Guard under the Maritime Transportation 
Security Act, 33 CFR part 6, or 33 U.S.C. 1221 et seq. related to 
maritime security; or
    (iii) Any comments, instructions, and implementing guidance 
pertaining thereto.
    (3) Information Circulars. Any notice issued by DHS or DOT regarding 
a threat to aviation or maritime transportation, including any--
    (i) Information Circular issued by TSA under 49 CFR 1542.303 or 
1544.305, or other authority; and
    (ii) Navigation or Vessel Inspection Circular issued by the Coast 
Guard related to maritime security.
    (4) Performance specifications. Any performance specification and 
any description of a test object or test procedure, for--
    (i) Any device used by the Federal government or any other person 
pursuant to any aviation or maritime transportation security 
requirements of Federal law for the detection of any weapon, explosive, 
incendiary, or destructive device or substance; and
    (ii) Any communications equipment used by the Federal government or 
any other person in carrying out or complying with any aviation or 
maritime transportation security requirements of Federal law.
    (5) Vulnerability assessments. Any vulnerability assessment 
directed, created, held, funded, or approved by the DOT, DHS, or that 
will be provided to DOT or DHS in support of a Federal security program.
    (6) Security inspection or investigative information. (i) Details of 
any security inspection or investigation of an alleged violation of 
aviation or maritime transportation security requirements of Federal law 
that could reveal a security vulnerability, including the identity of 
the Federal special agent or other Federal employee who conducted the 
inspection or audit.
    (ii) In the case of inspections or investigations performed by TSA, 
this includes the following information as to events that occurred 
within 12 months of the date of release of the information: the name of 
the airport where a violation occurred, the airport identifier in the 
case number, a description of the violation, the regulation allegedly 
violated, and the identity of any aircraft operator in connection with 
specific locations or specific security procedures. Such information 
will be released after the relevant 12-month period, except that TSA 
will not release the specific gate or other location on an airport where 
an event occurred, regardless of the amount of time that has passed 
since its occurrence. During the period within 12 months of the date of 
release of the information, TSA may release summaries of an aircraft 
operator's, but not an airport operator's, total security violations in 
a specified time range without identifying specific violations or 
locations. Summaries may include total enforcement actions, total 
proposed civil penalty amounts, number of cases opened, number of cases 
referred to TSA or FAA counsel for legal enforcement action, and number 
of cases closed.
    (7) Threat information. Any information held by the Federal 
government concerning threats against transportation or transportation 
systems and sources and methods used to gather or develop threat 
information, including threats against cyber infrastructure.
    (8) Security measures. Specific details of aviation or maritime 
transportation security measures, both operational and technical, 
whether applied directly by the Federal government or another person, 
including--
    (i) Security measures or protocols recommended by the Federal 
government;
    (ii) Information concerning the deployments, numbers, and operations 
of Coast Guard personnel engaged in maritime security duties and Federal 
Air Marshals, to the extent it is not classified national security 
information; and

[[Page 121]]

    (iii) Information concerning the deployments and operations of 
Federal Flight Deck Officers, and numbers of Federal Flight Deck 
Officers aggregated by aircraft operator.
    (9) Security screening information. The following information 
regarding security screening under aviation or maritime transportation 
security requirements of Federal law:
    (i) Any procedures, including selection criteria and any comments, 
instructions, and implementing guidance pertaining thereto, for 
screening of persons, accessible property, checked baggage, U.S. mail, 
stores, and cargo, that is conducted by the Federal government or any 
other authorized person.
    (ii) Information and sources of information used by a passenger or 
property screening program or system, including an automated screening 
system.
    (iii) Detailed information about the locations at which particular 
screening methods or equipment are used, only if determined by TSA to be 
SSI.
    (iv) Any security screener test and scores of such tests.
    (v) Performance or testing data from security equipment or screening 
systems.
    (vi) Any electronic image shown on any screening equipment monitor, 
including threat images and descriptions of threat images for threat 
image projection systems.
    (10) Security training materials. Records created or obtained for 
the purpose of training persons employed by, contracted with, or acting 
for the Federal government or another person to carry out any aviation 
or maritime transportation security measures required or recommended by 
DHS or DOT.
    (11) Identifying information of certain transportation security 
personnel. (i) Lists of the names or other identifying information that 
identify persons as--
    (A) Having unescorted access to a secure area of an airport or a 
secure or restricted area of a maritime facility, port area, or vessel 
or;
    (B) Holding a position as a security screener employed by or under 
contract with the Federal government pursuant to aviation or maritime 
transportation security requirements of Federal law, where such lists 
are aggregated by airport;
    (C) Holding a position with the Coast Guard responsible for 
conducting vulnerability assessments, security boardings, or engaged in 
operations to enforce maritime security requirements or conduct force 
protection;
    (D) Holding a position as a Federal Air Marshal; or
    (ii) The name or other identifying information that identifies a 
person as a current, former, or applicant for Federal Flight Deck 
Officer.
    (12) Critical aviation or maritime infrastructure asset information. 
Any list identifying systems or assets, whether physical or virtual, so 
vital to the aviation or maritime transportation system that the 
incapacity or destruction of such assets would have a debilitating 
impact on transportation security, if the list is--
    (i) Prepared by DHS or DOT; or
    (ii) Prepared by a State or local government agency and submitted by 
the agency to DHS or DOT.
    (13) Systems security information. Any information involving the 
security of operational or administrative data systems operated by the 
Federal government that have been identified by the DOT or DHS as 
critical to aviation or maritime transportation safety or security, 
including automated information security procedures and systems, 
security inspections, and vulnerability information concerning those 
systems.
    (14) Confidential business information. (i) Solicited or unsolicited 
proposals received by DHS or DOT, and negotiations arising therefrom, to 
perform work pursuant to a grant, contract, cooperative agreement, or 
other transaction, but only to the extent that the subject matter of the 
proposal relates to aviation or maritime transportation security 
measures;
    (ii) Trade secret information, including information required or 
requested by regulation or Security Directive, obtained by DHS or DOT in 
carrying out aviation or maritime transportation security 
responsibilities; and
    (iii) Commercial or financial information, including information 
required or requested by regulation or Security Directive, obtained by 
DHS or DOT in carrying out aviation or maritime

[[Page 122]]

transportation security responsibilities, but only if the source of the 
information does not customarily disclose it to the public.
    (15) Research and development. Information obtained or developed in 
the conduct of research related to aviation or maritime transportation 
security activities, where such research is approved, accepted, funded, 
recommended, or directed by the DHS or DOT, including research results.
    (16) Other information. Any information not otherwise described in 
this section that TSA determines is SSI under 49 U.S.C. 114(s) or that 
the Secretary of DOT determines is SSI under 49 U.S.C. 40119. Upon the 
request of another Federal agency, the Secretary of DOT may designate as 
SSI information not otherwise described in this section.
    (c) Loss of SSI designation. The Secretary of DOT may determine in 
writing that information or records described in paragraph (b) of this 
section do not constitute SSI because they no longer meet the criteria 
set forth in paragraph (a) of this section.



Sec.  15.7  Covered persons.

    Persons subject to the requirements of part 15 are:
    (a) Each airport operator and aircraft operator subject to the 
requirements of Subchapter C of this title.
    (b) Each indirect air carrier, as defined in 49 CFR 1540.5.
    (c) Each owner, charterer, or operator of a vessel, including 
foreign vessel owners, charterers, and operators, required to have a 
security plan under Federal or International law.
    (d) Each owner or operator of a maritime facility required to have a 
security plan under the Maritime Transportation Security Act, (Pub. L. 
107-295), 46 U.S.C. 70101 et seq., 33 CFR part 6, or 33 U.S.C. 1221 et 
seq.
    (e) Each person performing the function of a computer reservation 
system or global distribution system for airline passenger information.
    (f) Each person participating in a national or area security 
committee established under 46 U.S.C. 70112, or a port security 
committee.
    (g) Each industry trade association that represents covered persons 
and has entered into a non-disclosure agreement with the DHS or DOT.
    (h) DHS and DOT.
    (i) Each person conducting research and development activities that 
relate to aviation or maritime transportation security and are approved, 
accepted, funded, recommended, or directed by DHS or DOT.
    (j) Each person who has access to SSI, as specified in Sec.  15.11.
    (k) Each person employed by, contracted to, or acting for a covered 
person, including a grantee of DHS or DOT, and including a person 
formerly in such position.
    (l) Each person for which a vulnerability assessment has been 
directed, created, held, funded, or approved by the DOT, DHS, or that 
has prepared a vulnerability assessment that will be provided to DOT or 
DHS in support of a Federal security program.
    (m) Each person receiving SSI under Sec.  1520.15(d) or (e).



Sec.  15.9  Restrictions on the disclosure of SSI.

    (a) Duty to protect information. A covered person must--
    (1) Take reasonable steps to safeguard SSI in that person's 
possession or control from unauthorized disclosure. When a person is not 
in physical possession of SSI, the person must store it a secure 
container, such as a locked desk or file cabinet or in a locked room.
    (2) Disclose, or otherwise provide access to, SSI only to covered 
persons who have a need to know, unless otherwise authorized in writing 
by TSA, the Coast Guard, or the Secretary of DOT.
    (3) Refer requests by other persons for SSI to TSA or the applicable 
component or agency within DOT or DHS.
    (4) Mark SSI as specified in Sec.  15.13.
    (5) Dispose of SSI as specified in Sec.  15.19.
    (b) Unmarked SSI. If a covered person receives a record containing 
SSI that is not marked as specified in Sec.  1520.13, the covered person 
must--
    (1) Mark the record as specified in Sec.  15.13; and
    (2) Inform the sender of the record that the record must be marked 
as specified in Sec.  15.13.

[[Page 123]]

    (c) Duty to report unauthorized disclosure. When a covered person 
becomes aware that SSI has been released to unauthorized persons, the 
covered person must promptly inform TSA or the applicable DOT or DHS 
component or agency.
    (d) Additional requirements for critical infrastructure information. 
In the case of information that is both SSI and has been designated as 
critical infrastructure information under section 214 of the Homeland 
Security Act, any covered person who is a Federal employee in possession 
of such information must comply with the disclosure restrictions and 
other requirements applicable to such information under section 214 and 
any implementing regulations.



Sec.  15.11  Persons with a need to know.

    (a) In general. A person has a need to know SSI in each of the 
following circumstances:
    (1) When the person requires access to specific SSI to carry out 
transportation security activities approved, accepted, funded, 
recommended, or directed by DHS or DOT.
    (2) When the person is in training to carry out transportation 
security activities approved, accepted, funded, recommended, or directed 
by DHS or DOT.
    (3) When the information is necessary for the person to supervise or 
otherwise manage individuals carrying out transportation security 
activities approved, accepted, funded, recommended, or directed by the 
DHS or DOT.
    (4) When the person needs the information to provide technical or 
legal advice to a covered person regarding transportation security 
requirements of Federal law.
    (5) When the person needs the information to represent a covered 
person in connection with any judicial or administrative proceeding 
regarding those requirements.
    (b) Federal employees, contractors, and grantees. (1) A Federal 
employee has a need to know SSI if access to the information is 
necessary for performance of the employee's official duties.
    (2) A person acting in the performance of a contract with or grant 
from DHS or DOT has a need to know SSI if access to the information is 
necessary to performance of the contract or grant.
    (c) Background check. The Secretary of DOT may make an individual's 
access to the SSI contingent upon satisfactory completion of a security 
background check and the imposition of procedures and requirements for 
safeguarding SSI that are satisfactory to the Secretary.
    (d) Need to know further limited by the DHS or DOT. For some 
specific SSI, DHS or DOT may make a finding that only specific persons 
or classes of persons have a need to know.

[69 FR 28078, May 18, 2004, as amended at 70 FR 1381, Jan. 7, 2005]



Sec.  15.13  Marking SSI.

    (a) Marking of paper records. In the case of paper records 
containing SSI, a covered person must mark the record by placing the 
protective marking conspicuously on the top, and the distribution 
limitation statement on the bottom, of--
    (1) The outside of any front and back cover, including a binder 
cover or folder, if the document has a front and back cover;
    (2) Any title page; and
    (3) Each page of the document.
    (b) Protective marking. The protective marking is: SENSITIVE 
SECURITY INFORMATION.
    (c) Distribution limitation statement. The distribution limitation 
statement is:

    WARNING: This record contains Sensitive Security Information that is 
controlled under 49 CFR parts 15 and 1520. No part of this record may be 
disclosed to persons without a ``need to know'', as defined in 49 CFR 
parts 15 and 1520, except with the written permission of the 
Administrator of the Transportation Security Administration or the 
Secretary of Transportation. Unauthorized release may result in civil 
penalty or other action. For U.S. government agencies, public disclosure 
is governed by 5 U.S.C. 552 and 49 CFR parts 15 and 1520.

    (d) Other types of records. In the case of non-paper records that 
contain SSI, including motion picture films, videotape recordings, audio 
recording, and electronic and magnetic records, a covered person must 
clearly and conspicuously mark the records with the protective marking 
and the distribution

[[Page 124]]

limitation statement such that the viewer or listener is reasonably 
likely to see or hear them when obtaining access to the contents of the 
record.



Sec.  15.15  SSI disclosed by DOT.

    (a) In general. Except as otherwise provided in this section, and 
notwithstanding the Freedom of Information Act (5 U.S.C. 552), the 
Privacy Act (5 U.S.C. 552a), and other laws, records containing SSI are 
not available for public inspection or copying, nor does DOT release 
such records to persons without a need to know.
    (b) Disclosure under the Freedom of Information Act and the Privacy 
Act. If a record contains both SSI and information that is not SSI, DOT, 
on a proper Freedom of Information Act or Privacy Act request, may 
disclose the record with the SSI redacted, provided the record is not 
otherwise exempt from disclosure under the Freedom of Information Act or 
Privacy Act.
    (c) Disclosures to committees of Congress and the General Accounting 
Office. Nothing in this part precludes DOT from disclosing SSI to a 
committee of Congress authorized to have the information or to the 
Comptroller General, or to any authorized representative of the 
Comptroller General.
    (d) Disclosure in enforcement proceedings--(1) In general. The 
Secretary of DOT may provide SSI to a person in the context of an 
administrative enforcement proceeding when, in the sole discretion of 
the Secretary, access to the SSI is necessary for the person to prepare 
a response to allegations contained in a legal enforcement action 
document issued by DOT.
    (2) Security background check. Prior to providing SSI to a person 
under paragraph (d)(1) of this section, the Secretary of DOT may require 
the individual or, in the case of an entity, the individuals 
representing the entity, and their counsel, to undergo and satisfy, in 
the judgment of the Secretary of DOT, a security background check.
    (e) Other conditional disclosure. The Secretary of DOT may authorize 
a conditional disclosure of specific records or information that 
constitute SSI upon the written determination by the Secretary that 
disclosure of such records or information, subject to such limitations 
and restrictions as the Secretary may prescribe, would not be 
detrimental to transportation safety.
    (f) Obligation to protect information. When an individual receives 
SSI pursuant to paragraph (d) or (e) of this section that individual 
becomes a covered person under Sec.  15.7 and is subject to the 
obligations of a covered person under this part.
    (g) No release under FOIA. When DOT discloses SSI pursuant to 
paragraphs (b) through (e) of this section, DOT makes the disclosure for 
the sole purpose described in that paragraph. Such disclosure is not a 
public release of information under the Freedom of Information Act.
    (h) Disclosure of Critical Infrastructure Information. Disclosure of 
information that is both SSI and has been designated as critical 
infrastructure information under section 214 of the Homeland Security 
Act is governed solely by the requirements of section 214 and any 
implementing regulations.



Sec.  15.17  Consequences of unauthorized disclosure of SSI.

    Violation of this part is grounds for a civil penalty and other 
enforcement or corrective action by DOT, and appropriate personnel 
actions for Federal employees. Corrective action may include issuance of 
an order requiring retrieval of SSI to remedy unauthorized disclosure or 
an order to cease future unauthorized disclosure.



Sec.  15.19  Destruction of SSI.

    (a) DOT. Subject to the requirements of the Federal Records Act (5 
U.S.C. 105), including the duty to preserve records containing 
documentation of a Federal agency's policies, decisions, and essential 
transactions, DOT destroys SSI when no longer needed to carry out the 
agency's function.
    (b) Other covered persons--(1) In general. A covered person must 
destroy SSI completely to preclude recognition or reconstruction of the 
information when the covered person no longer needs the SSI to carry out 
transportation security measures.
    (2) Exception. Paragraph (b)(1) of this section does not require a 
State or

[[Page 125]]

local government agency to destroy information that the agency is 
required to preserve under State or local law.



PART 17_INTERGOVERNMENTAL REVIEW OF DEPARTMENT OF TRANSPORTATION PROGRAMS
AND ACTIVITIES--Table of Contents



Sec.
17.1 What is the purpose of these regulations?
17.2 What definitions apply to these regulations?
17.3 What programs and activities of the Department are subject to these 
          regulations?
17.4 [Reserved]
17.5 What is the Secretary's obligation with respect to Federal 
          interagency coordination?
17.6 What procedures apply to the selection of programs and activities 
          under these regulations?
17.7 How does the Secretary communicate with state and local officials 
          concerning the Department's programs and activities?
17.8 How does the secretary provide states an opportunity to comment on 
          proposed Federal financial assistance and direct Federal 
          development?
17.9 How does the Secretary receive and respond to comments?
17.10 How does the Secretary make efforts to accommodate 
          intergovernmental concerns?
17.11 What are the Secretary's obligations in interstate situations?
17.12 How may a state simplify, consolidate, or substitute federally 
          required state plans?
17.13 May the Secretary waive any provision of these regulations?

    Authority: Executive Order 12372, July 14, 1982 (47 FR 30959), as 
amended April 8, 1983 (48 FR 15887): sec. 401 of the Intergovernmental 
Cooperation Act of 1968, as amended (31 U.S.C. 6506); sec. 204 of the 
Demonstration Cities and Metropolitan Development Act of 1966, as 
amended (42 U.S.C. 3334).

    Source: 48 FR 29272, June 24, 1983, unless otherwise noted.



Sec.  17.1  What is the purpose of these regulations?

    (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.  17.2  What definitions apply to these regulations?

    Department means the U.S. Department of Transportation.
    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 
Transportation or an official or employee of the Department acting for 
the Secretary under a delegation of authority.
    State means any of the 50 states, the District of Columbia, the 
Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana 
Islands, Guam, American Samoa, the U.S. Virgin Islands, or the Trust 
Territory of the Pacific Islands.



Sec.  17.3  What programs and activities of the Department are subject
to these regulations?

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



Sec.  17.4  [Reserved]



Sec.  17.5  What is the Secretary's obligation with respect to Federal
interagency coordination?

    The Secretary, to the extent practicable, consults with and seeks 
advice from all other substantially affected

[[Page 126]]

Federal departments and agencies in an effort to assure full 
coordination between such agencies and the Department regarding programs 
and activities covered under these regulations.



Sec.  17.6  What procedures apply to the selection of programs and
activities under these regulations?

    (a) A state may select any program or activity published in the 
Federal Register in accordance with Sec.  17.3 of this part for 
intergovernmental review under these regulations. Each state, before 
selecting programs and activities shall consult with local elected 
officials.
    (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.  17.7  How does the Secretary communicate with state and local
officials concerning the Department's programs and activities?

    (a) For those programs and activities covered by a state process 
under Sec.  17.6, the Secretary, to the extent permitted by law:
    (1) Uses the 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.  17.8  How does the Secretary provide states an opportunity to
comment on proposed Federal financial assistance and direct Federal
development?

    (a) Except in unusual circumstances, the Secretary gives state 
processes or state, areawide, regional and local officials and entities 
at least:
    (1) [Reserved]
    (2) 60 days from the date established by the Secretary to comment on 
proposed direct Federal development or Federal financial assistance.
    (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.  17.9  How does the Secretary receive and respond to comments?

    (a) The Secretary follows the procedures in Sec.  17.10 if:
    (1) A state office or official is designated to act as a single 
point of contact between a state process and all federal agencies, and
    (2) That office or official transmits a state process recommendation 
for a program selected under Sec.  17.6.
    (b)(1) The single point of contact is not obligated to transmit 
comments from state, areawide, regional or local officials and entities 
where there is no state process recommendation.
    (2) If a state process recommendation is transmitted by a single 
point of contact, all comments from state, areawide, regional, and local 
officials and entities that differ from it must also be transmitted.
    (c) If a state has not established a process, or is unable to submit 
a state process recommendation, state,

[[Page 127]]

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.  17.10 of this part.
    (e) The Secretary considers comments which do not constitute a state 
process recommendation submitted under these regulations and for which 
the Secretary is not required to apply the procedures of Sec.  17.10 of 
this part, when such comments are provided by a single point of contact, 
by the applicant, or directly to the Department by a commenting party.



Sec.  17.10  How does the Secretary make efforts to accommodate 
intergovernmental concerns?

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



Sec.  17.11  What are the Secretary's obligations in interstate 
situations?

    (a) The Secretary is responsible for:
    (1) Identifying proposed federal financial assistance 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.  17.10 of this part if the Secretary 
receives a recommendation from a designated areawide agency transmitted 
by a single point of contact, in cases in which the review, 
coordination, and communication with the Department have been delegated.
    (b) The Secretary uses the procedures in Sec.  17.10 if a state 
process provides a state process recommendation to the Department 
through a single point of contact.



Sec.  17.12  How may a state simplify, consolidate, or substitute 
federally required state plans?

    (a) As used in this section:
    (1) Simplify means that a state may develop its own format, choose 
its own submission date, and select the planning period for a state 
plan.
    (2) Consolidate means that a state may meet statutory and regulatory 
requirements by combining two or more plans into one document and that 
the state can select the format, submission date, and planning period 
for the consolidated plan.
    (3) Substitute means that a state may use a plan or other document 
that it has developed for its own purposes to meet Federal requirements.

[[Page 128]]

    (b) If not inconsistent with law, a state may decide to try to 
simplify, consolidate, or substitute federally required state plans 
without prior approval by the Secretary.
    (c) The Secretary reviews each state plan that a state has 
simplified, consolidated, or substituted and accepts the plan only if 
its contents meet federal requirements.



Sec.  17.13  May the Secretary waive any provision of these regulations?

    In an emergency, the Secretary may waive any provision of these 
regulations.

                         PARTS 18	19 [RESERVED]



PART 20_NEW RESTRICTIONS ON LOBBYING--Table of Contents



                            Subpart A_General

Sec.
20.100 Conditions on use of funds.
20.105 Definitions.
20.110 Certification and disclosure.

                  Subpart B_Activities by Own Employees

20.200 Agency and legislative liaison.
20.205 Professional and technical services.
20.210 Reporting.

            Subpart C_Activities by Other Than Own Employees

20.300 Professional and technical services.

                   Subpart D_Penalties and Enforcement

20.400 Penalties.
20.405 Penalty procedures.
20.410 Enforcement.

                          Subpart E_Exemptions

20.500 Secretary of Defense.

                        Subpart F_Agency Reports

20.600 Semi-annual compilation.
20.605 Inspector General report.

Appendix A to Part 20--Certification Regarding Lobbying
Appendix B to Part 20--Disclosure Form To Report Lobbying

    Authority: Sec. 319, Public Law 101-121 (31 U.S.C. 1352); 49 U.S.C. 
322(a).

    Source: 55 FR 6737, 6756, 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.  20.100  Conditions on use of funds.

    (a) No appropriated funds may be expended by the recipient of a 
Federal contract, grant, loan, or cooperative ageement to pay any person 
for influencing or attempting to influence an officer or employee of any 
agency, a Member of Congress, an officer or employee of Congress, or an 
employee of a Member of Congress in connection with any of the following 
covered Federal actions: the awarding of any Federal contract, the 
making of any Federal grant, the making of any Federal loan, the 
entering into of any cooperative agreement, and the extension, 
continuation, renewal, amendment, or modification of any Federal 
contract, grant, loan, or cooperative agreement.
    (b) Each person who requests or receives from an agency a Federal 
contract, grant, loan, or cooperative agreement shall file with that 
agency a certification, set forth in appendix A, that the person has not 
made, and will not make, any payment prohibited by paragraph (a) of this 
section.
    (c) Each person who requests or receives from an agency a Federal 
contract, grant, loan, or a cooperative agreement shall file with that 
agency a disclosure form, set forth in appendix B, if such person has 
made or has agreed to make any payment using nonappropriated funds (to 
include profits from any covered Federal action), which would be 
prohibited under paragraph (a) of this section if paid for with 
appropriated funds.
    (d) Each person who requests or receives from an agency a commitment 
providing for the United States to insure or guarantee a loan shall file 
with that agency a statement, set forth in appendix A, whether that 
person has made or has agreed to make any payment to influence or 
attempt to influence an officer or employee of any agency, a Member of 
Congress, an officer or employee of Congress, or an employee of a Member 
of Congress in connection with that loan insurance or guarantee.

[[Page 129]]

    (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.  20.105  Definitions.

    For purposes of this part:
    (a) Agency, as defined in 5 U.S.C. 552(f), includes Federal 
executive departments and agencies as well as independent regulatory 
commissions and Government corporations, as defined in 31 U.S.C. 
9101(1).
    (b) Covered Federal action means any of the following Federal 
actions:
    (1) The awarding of any Federal contract;
    (2) The making of any Federal grant;
    (3) The making of any Federal loan;
    (4) The entering into of any cooperative agreement; and,
    (5) The extension, continuation, renewal, amendment, or modification 
of any Federal contract, grant, loan, or cooperative agreement.

Covered Federal action does not include receiving from an agency a 
commitment providing for the United States to insure or guarantee a 
loan. Loan guarantees and loan insurance are addressed independently 
within this part.
    (c) Federal contract means an acquisition contract awarded by an 
agency, including those subject to the Federal Acquisition Regulation 
(FAR), and any other acquisition contract for real or personal property 
or services not subject to the FAR.
    (d) Federal cooperative agreement means a cooperative agreement 
entered into by an agency.
    (e) Federal grant means an award of financial assistance in the form 
of money, or property in lieu of money, by the Federal Government or a 
direct appropriation made by law to any person. The term does not 
include technical assistance which provides services instead of money, 
or other assistance in the form of revenue sharing, loans, loan 
guarantees, loan insurance, interest subsidies, insurance, or direct 
United States cash assistance to an individual.
    (f) Federal loan means a loan made by an agency. The term does not 
include loan guarantee or loan insurance.
    (g) Indian tribe and tribal organization have the meaning provided 
in section 4 of the Indian Self-Determination and Education Assistance 
Act (25 U.S.C. 450B). Alaskan Natives are included under the definitions 
of Indian tribes in that Act.
    (h) Influencing or attempting to influence means making, with the 
intent to influence, any communication to or appearance before an 
officer or employee or any agency, a Member of Congress, an officer or 
employee of Congress, or an employee of a Member of Congress in 
connection with any covered Federal action.
    (i) Loan guarantee and loan insurance means an agency's guarantee or 
insurance of a loan made by a person.
    (j) Local government means a unit of government in a State and, if 
chartered, established, or otherwise recognized by a State for the 
performance of a governmental duty, including a local public authority, 
a special district, an intrastate district, a council of governments, a 
sponsor group representative organization, and any other instrumentality 
of a local government.
    (k) Officer or employee of an agency includes the following 
individuals who are employed by an agency:
    (1) An individual who is appointed to a position in the Government 
under title 5, U.S. Code, including a position under a temporary 
appointment;
    (2) A member of the uniformed services as defined in section 101(3), 
title 37, U.S. Code;
    (3) A special Government employee as defined in section 202, title 
18, U.S. Code; and,
    (4) An individual who is a member of a Federal advisory committee, 
as defined by the Federal Advisory Committee Act, title 5, U.S. Code 
appendix 2.
    (l) Person means an individual, corporation, company, association, 
authority, firm, partnership, society,

[[Page 130]]

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.  20.110  Certification and disclosure.

    (a) Each person shall file a certification, and a disclosure form, 
if required, with each submission that initiates agency consideration of 
such person for:
    (1) Award of a Federal contract, grant, or cooperative agreement 
exceeding $100,000; or
    (2) An award of a Federal loan or a commitment providing for the 
United States to insure or guarantee a loan exceeding $150,000.
    (b) Each person shall file a certification, and a disclosure form, 
if required, upon receipt by such person of:
    (1) A Federal contract, grant, or cooperative agreement exceeding 
$100,000; or
    (2) A Federal loan or a commitment providing for the United States 
to insure or guarantee a loan exceeding $150,000,

Unless such person previously filed a certification, and a disclosure 
form, if required, under paragraph (a) of this section.
    (c) Each person shall file a disclosure form at the end of each 
calendar quarter in which there occurs any event that requires 
disclosure or that materially affects the accuracy of the information 
contained in any disclosure form previously filed by such person under 
paragraphs (a) or (b) of this section. An event that materially affects 
the accuracy of the information reported includes:
    (1) A cumulative increase of $25,000 or more in the amount paid or 
expected to be paid for influencing or attempting to influence a covered 
Federal action; or
    (2) A change in the person(s) or individual(s) influencing or 
attempting to influence a covered Federal action; or,
    (3) A change in the officer(s), employee(s), or Member(s) contacted 
to influence or attempt to influence a covered Federal action.

[[Page 131]]

    (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.  20.200  Agency and legislative liaison.

    (a) The prohibition on the use of appropriated funds, in Sec.  
20.100 (a), does not apply in the case of a payment of reasonable 
compensation made to an officer or employee of a person requesting or 
receiving a Federal contract, grant, loan, or cooperative agreement if 
the payment is for agency and legislative liaison activities not 
directly related to a covered Federal action.
    (b) For purposes of paragraph (a) of this section, providing any 
information specifically requested by an agency or Congress is allowable 
at any time.
    (c) For purposes of paragraph (a) of this section, the following 
agency and legislative liaison activities are allowable at any time only 
where they are not related to a specific solicitation for any covered 
Federal action:
    (1) Discussing with an agency (including individual demonstrations) 
the qualities and characteristics of the person's products or services, 
conditions or terms of sale, and service capabilities; and,
    (2) Technical discussions and other activities regarding the 
application or adaptation of the person's products or services for an 
agency's use.
    (d) For purposes of paragraph (a) of this section, the following 
agencies and legislative liaison activities are allowable only where 
they are prior to formal solicitation of any covered Federal action:
    (1) Providing any information not specifically requested but 
necessary for an agency to make an informed decision about initiation of 
a covered Federal action;
    (2) Technical discussions regarding the preparation of an 
unsolicited proposal prior to its official submission; and,
    (3) Capability presentations by persons seeking awards from an 
agency pursuant to the provisions of the Small Business Act, as amended 
by Public Law 95-507 and other subsequent amendments.

[[Page 132]]

    (e) Only those activities expressly authorized by this section are 
allowable under this section.



Sec.  20.205  Professional and technical services.

    (a) The prohibition on the use of appropriated funds, in Sec.  
20.100 (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.  20.210  Reporting.

    No reporting is required with respect to payments of reasonable 
compensation made to regularly employed officers or employees of a 
person.



            Subpart C_Activities by Other Than Own Employees



Sec.  20.300  Professional and technical services.

    (a) The prohibition on the use of appropriated funds, in Sec.  
20.100 (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.  20.110 (a) and (b) regarding 
filing a disclosure form by each person, if required, shall not apply 
with respect to

[[Page 133]]

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.  20.400  Penalties.

    (a) Any person who makes an expenditure prohibited herein shall be 
subject to a civil penalty of not less than $10,000 and not more than 
$100,000 for each such expenditure.
    (b) Any person who fails to file or amend the disclosure form (see 
appendix B) to be filed or amended if required herein, shall be subject 
to a civil penalty of not less than $10,000 and not more than $100,000 
for each such failure.
    (c) A filing or amended filing on or after the date on which an 
administrative action for the imposition of a civil penalty is commenced 
does not prevent the imposition of such civil penalty for a failure 
occurring before that date. An administrative action is commenced with 
respect to a failure when an investigating official determines in 
writing to commence an investigation of an allegation of such failure.
    (d) In determining whether to impose a civil penalty, and the amount 
of any such penalty, by reason of a violation by any person, the agency 
shall consider the nature, circumstances, extent, and gravity of the 
violation, the effect on the ability of such person to continue in 
business, any prior violations by such person, the degree of culpability 
of such person, the ability of the person to pay the penalty, and such 
other matters as may be appropriate.
    (e) First offenders under paragraphs (a) or (b) of this section 
shall be subject to a civil penalty of $10,000, absent aggravating 
circumstances. Second and subsequent offenses by persons shall be 
subject to an appropriate civil penalty between $10,000 and $100,000, as 
determined by the agency head or his or her designee.
    (f) An imposition of a civil penalty under this section does not 
prevent the United States from seeking any other remedy that may apply 
to the same

[[Page 134]]

conduct that is the basis for the imposition of such civil penalty.



Sec.  20.405  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.  20.410  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.  20.500  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.  20.600  Semi-annual compilation.

    (a) The head of each agency shall collect and compile the disclosure 
reports (see appendix B) and, on May 31 and November 30 of each year, 
submit to the Secretary of the Senate and the Clerk of the House of 
Representatives a report containing a compilation of the information 
contained in the disclosure reports received during the six-month period 
ending on March 31 or September 30, respectively, of that year.
    (b) The report, including the compilation, shall be available for 
public inspection 30 days after receipt of the report by the Secretary 
and the Clerk.
    (c) Information that involves intelligence matters shall be reported 
only to the Select Committee on Intelligence of the Senate, the 
Permanent Select Committee on Intelligence of the House of 
Representatives, and the Committees on Appropriations of the Senate and 
the House of Representatives in accordance with procedures agreed to by 
such committees. Such information shall not be available for public 
inspection.
    (d) Information that is classified under Executive Order 12356 or 
any successor order shall be reported only to the Committee on Foreign 
Relations of the Senate and the Committee on Foreign Affairs of the 
House of Representatives or the Committees on Armed Services of the 
Senate and the House of Representatives (whichever such committees have 
jurisdiction of matters involving such information) and to the 
Committees on Appropriations of the Senate and the House of 
Representatives in accordance with procedures agreed to by such 
committees. Such information shall not be available for public 
inspection.
    (e) The first semi-annual compilation shall be submitted on May 31, 
1990, and shall contain a compilation of the disclosure reports received 
from December 23, 1989 to March 31, 1990.
    (f) Major agencies, designated by the Office of Management and 
Budget (OMB), are required to provide machine-readable compilations to 
the Secretary of the Senate and the Clerk of the House of 
Representatives no later than with the compilations due on May 31, 1991. 
OMB shall provide detailed specifications in a memorandum to these 
agencies.
    (g) Non-major agencies are requested to provide machine-readable 
compilations to the Secretary of the Senate and the Clerk of the House 
of Representatives.
    (h) Agencies shall keep the originals of all disclosure reports in 
the official files of the agency.



Sec.  20.605  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

[[Page 135]]

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 20--Certification Regarding Lobbying

 Certification for Contracts, Grants, Loans, and Cooperative Agreements

    The undersigned certifies, to the best of his or her knowledge and 
belief, that:
    (1) No Federal appropriated funds have been paid or will be paid, by 
or on behalf of the undersigned, to any person for influencing or 
attempting to influence an officer or employee of an agency, a Member of 
Congress, an officer or employee of Congress, or an employee of a Member 
of Congress in connection with the awarding of any Federal contract, the 
making of any Federal grant, the making of any Federal loan, the 
entering into of any cooperative agreement, and the extension, 
continuation, renewal, amendment, or modification of any Federal 
contract, grant, loan, or cooperative agreement.
    (2) If any funds other than Federal appropriated funds have been 
paid or will be paid to any person for influencing or attempting to 
influence an officer or employee of any agency, a Member of Congress, an 
officer or employee of Congress, or an employee of a Member of Congress 
in connection with this Federal contract, grant, loan, or cooperative 
agreement, the undersigned shall complete and submit Standard Form-LLL, 
``Disclosure Form to Report Lobbying,'' in accordance with its 
instructions.
    (3) The undersigned shall require that the language of this 
certification be included in the award documents for all subawards at 
all tiers (including subcontracts, subgrants, and contracts under 
grants, loans, and cooperative agreements) and that all subrecipients 
shall certify and disclose accordingly.
    This certification is a material representation of fact upon which 
reliance was placed when this transaction was made or entered into. 
Submission of this certification is a prerequisite for making or 
entering into this transaction imposed by section 1352, title 31, U.S. 
Code. Any person who fails to file the required certification shall be 
subject to a civil penalty of not less than $10,000 and not more than 
$100,000 for each such failure.

            Statement for Loan Guarantees and Loan Insurance

    The undersigned states, to the best of his or her knowledge and 
belief, that:
    If any funds have been paid or will be paid to any person for 
influencing or attempting to influence an officer or employee of any 
agency, a Member of Congress, an officer or employee of Congress, or an 
employee of a Member of Congress in connection with this commitment 
providing for the United States to insure or guarantee a loan, the 
undersigned shall complete and submit Standard Form-LLL, ``Disclosure 
Form to Report Lobbying,'' in accordance with its instructions.
    Submission of this statement is a prerequisite for making or 
entering into this transaction imposed by section 1352, title 31, U.S. 
Code. Any person who fails to file the required statement shall be 
subject to a civil penalty of not less than $10,000 and not more than 
$100,000 for each such failure.

[[Page 136]]

        Appendix B to Part 20--Disclosure Form To Report Lobbying
[GRAPHIC] [TIFF OMITTED] TC02FE91.097


[[Page 137]]


[GRAPHIC] [TIFF OMITTED] TC02FE91.098


[[Page 138]]


[GRAPHIC] [TIFF OMITTED] TC02FE91.099


[[Page 139]]





PART 21_NONDISCRIMINATION IN FEDERALLY-ASSISTED PROGRAMS OF 
THE DEPARTMENT OF TRANSPORTATION_EFFECTUATION OF TITLE VI OF 
THE CIVIL RIGHTS ACT OF 1964--Table of Contents



Sec.
21.1 Purpose.
21.3 Application of this part.
21.5 Discrimination prohibited.
21.7 Assurances required.
21.9 Compliance information.
21.11 Conduct of investigations.
21.13 Procedure for effecting compliance.
21.15 Hearings.
21.17 Decisions and notices.
21.19 Judicial review.
21.21 Effect on other regulations, forms, and instructions.
21.23 Definitions.

Appendix A to Part 21--Activities to Which This Part Applies
Appendix B to Part 21--Activities to Which This Part Applies When a 
          Primary Objective of the Federal Financial Assistance Is To 
          Provide Employment
Appendix C to Part 21--Application of Part 21 to Certain Federal 
          Financial Assistance of the Department of Transportation

    Authority: 42 U.S.C. 2000d-2000d-6.

    Source: 35 FR 10080, June 18, 1970, unless otherwise noted.



Sec.  21.1  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 grounds of 
race, color, or national origin, be excluded from participation in, be 
denied the benefits of, or be otherwise subjected to discrimination 
under any program or activity receiving Federal financial assistance 
from the Department of Transportation.



Sec.  21.3  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. It also applies to money paid, property transferred, or 
other Federal financial assistance extended after the effective date of 
this part pursuant to an application approved before that effective 
date. This part does not apply to:
    (1) Any Federal financial assistance by way of insurance or guaranty 
contracts;
    (2) Money paid, property transferred, or other assistance extended 
before the effective date of this part, except where such assistance was 
subject to the title VI regulations of any agency whose responsibilities 
are now exercised by this Department;
    (3) Any assistance to any individual who is the ultimate 
beneficiary; or
    (4) Any employment practice, under any such program, of any 
employer, employment agency, or labor organization, except to the extent 
described in Sec.  21.5(c).

The fact that a type of Federal financial assistance is not listed in 
appendix A to this part shall not mean, if title VI 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 appendix A to this part.
    (b) In any program receiving Federal financial assistance in the 
form, or for the acquisition, of real property or an interest in real 
property, to the extent that rights to space on, over, or under any such 
property are included as part of the program receiving that assistance, 
the nondiscrimination requirement of this part shall extend to any 
facility located wholly or in part in that space.

[35 FR 10080, June 18, 1970, as amended at 68 FR 51389, Aug. 26, 2003]



Sec.  21.5  Discrimination prohibited.

    (a) General. No person in the United States shall, on the grounds of 
race, color, or national origin be excluded from participation in, be 
denied the benefits of, or be otherwise subjected to discrimination 
under, any program to which this part applies.
    (b) Specific discriminatory actions prohibited:
    (1) A recipient to which this part applies may not, directly or 
through contractual or other arrangements, on the grounds of race, 
color, or national origin.

[[Page 140]]

    (i) Deny a person any service, financial aid, or other benefit 
provided under the program;
    (ii) Provide any service, financial aid, or other benefit to a 
person which is different, or is provided in a different manner, from 
that provided to others under the program;
    (iii) Subject a person to segregation or separate treatment in any 
matter related to his receipt of any service, financial aid, or other 
benefit under the program;
    (iv) Restrict a person in any way in the enjoyment of any advantage 
or privilege enjoyed by others receiving any service, financial aid, or 
other benefit under the program;
    (v) Treat a person differently from others in determining whether he 
satisfies any admission, enrollment, quota, eligibility, membership, or 
other requirement or condition which persons must meet in order to be 
provided any service, financial aid, or other benefit provided under the 
program;
    (vi) Deny a person an opportunity to participate in the program 
through the provision of services or otherwise or afford him an 
opportunity to do so which is different from that afforded others under 
the program; or
    (vii) Deny a person the opportunity to participate as a member of a 
planning, advisory, or similar body which is an integral part of the 
program.
    (2) A recipient, in determining the types of services, financial 
aid, or other benefits, or facilities which will be provided under any 
such program, or the class of person to whom, or the situations in 
which, such services, financial aid, other benefits, or facilities will 
be provided under any such program, or the class of persons to be 
afforded an opportunity to participate in any such program; may not, 
directly or through contractual or other arrangements, 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 with respect to individuals of a 
particular race, color, or national origin.
    (3) In determining the site or location of facilities, a recipient 
or applicant may not make selections with the purpose or effect of 
excluding persons from, denying them the benefits of, or subjecting them 
to discrimination under any program to which this regulation applies, on 
the grounds of race, color, or national origin; or with the purpose or 
effect of defeating or substantially impairing the accomplishment of the 
objectives of 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 
include any service, financial aid, or other benefit provided in or 
through a facility provided with the aid of Federal financial 
assistance.
    (5) The enumeration of specific forms of prohibited discrimination 
in this paragraph does not limit the generality of the prohibition in 
paragraph (a) of this section.
    (6) Examples demonstrating the application of the provisions of this 
section to certain types of Federal financial assistance administered by 
the Department of Transportation are contained in appendix C of this 
part.
    (7) This part does not prohibit the consideration of race, color, or 
national origin if the purpose and effect are to remove or overcome the 
consequences of practices or impediments which have restricted the 
availability of, or participation in, the program or activity receiving 
Federal financial assistance, on the grounds of race, color, or national 
origin. Where prior discriminatory practice or usage tends, on the 
grounds of race, color, or national origin to exclude individuals from 
participation in, to deny them the benefits of, or to subject them to 
discrimination under any program or activity to which this part applies, 
the applicant or recipient must take affirmative action to remove or 
overcome the effects of the prior discriminatory practice or usage. Even 
in the absence of prior discriminatory practice or usage, a recipient in 
administering a program or activity to which this part applies, is 
expected to take affirmative action to assure that no person is excluded 
from participation in or denied the benefits of the program or activity 
on the

[[Page 141]]

grounds of race, color, or national origin.
    (c) Employment practices:
    (1) Where a primary objective of the Federal financial assistance to 
a program to which this part applies is to provide employment, a 
recipient 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 recipient shall take 
affirmative action to insure that applicants are employed, and employees 
are treated during employment, without regard to their race, color, or 
national origin. The requirements applicable to construction employment 
under any such program shall be those specified in or pursuant to Part 
III of Executive Order 11246 or any Executive order which supersedes it.
    (2) Federal financial assistance to programs under laws funded or 
administered by the Department which have as a primary objective the 
providing of employment include those set forth in appendix B to this 
part.
    (3) Where a primary objective of the Federal financial assistance is 
not to provide employment, but discrimination on the grounds of race, 
color, or national origin in the employment practices of the recipient 
or other persons subject to the regulation tends, on the grounds of 
race, color, or national origin, to exclude individuals from 
participation in, to deny them the benefits of, or to subject them to 
discrimination under any program to which this regulation applies, the 
provisions of paragraph (c)(1) of this section shall apply to the 
employment practices of the recipient or other persons subject to the 
regulation, to the extent necessary to assure equality of opportunity 
to, and nondiscriminatory treatment of, beneficiaries.
    (d) A recipient may not make a selection of a site or location of a 
facility if the purpose of that selection, or its effect when made, is 
to exclude individuals from participation in, to deny them the benefits 
of, or to subject them to discrimination under any program or activity 
to which this rule applies, on the grounds of race, color, or national 
origin; or if the purpose is to, or its effect when made will, 
substantially impair the accomplishment of the objectives of this part.

[35 FR 10080, June 18, 1970, as amended by Amdt. 72-2, 38 FR 17997, July 
5, 1973; 68 FR 51389, Aug. 26, 2003]



Sec.  21.7  Assurances required.

    (a) General. (1) Every application for Federal financial assistance 
to which this part applies, except an application to which paragraph (b) 
of this section applies, and every application for Federal financial 
assistance to provide a facility shall, as a condition to its approval 
and the extension of any Federal financial assistance pursuant to the 
application, contain or be accompanied by, an assurance that the program 
will be conducted or the facility operated in compliance with all 
requirements imposed by or pursuant to this part. Every awardof Federal 
financial assistance shall require the submission of such an assurance. 
In the case where the Federal financial assistance is to provide or is 
in the form of personal property, or real property or interest therein 
or structures thereon, the assurance shall obligate the recipient, or, 
in the case of a subsequent transfer, the transferee, for the period 
during which the property is used for a purpose for which the Federal 
financial assistance is extended or for another purpose involving the 
provision of similar services or benefits, or for as long as the 
recipient retains ownership or possession of the property, whichever is 
longer. In all other cases the assurance shall obligate the recipient 
for the period during which Federal financial assistance is extended to 
the program. The Secretary shall specify the form of the foregoing 
assurances, and the extent to which like assurances will be required of 
subgrantees, contractors and subcontractors, transferees, successors in 
interest, and other

[[Page 142]]

participants. Any such assurance shall include provisions which give the 
United States a right to seek its judicial enforcement.
    (2) In the case where Federal financial assistance is provided in 
the form of a transfer of real property, structures, or improvements 
thereon, or interest therein, from the Federal Government, the 
instrument effecting or recording the transfer shall contain a covenant 
running with the land assuring nondiscrimination for the period during 
which the real property is used for a purpose for which the Federal 
financial assistance is extended or for another purpose involving the 
provision of similar services or benefits. Where no transfer of property 
or interest therein from the Federal Government is involved, but 
property is acquired or improved with Federal financial assistance, the 
recipient shall agree to include such covenant in any subsequent 
transfer of such property. When the property is obtained from the 
Federal Government, such covenant may also include a condition coupled 
with a right to be reserved by the Department to revert title to the 
property in the event of a breach of the covenant where, in the 
discretion of the Secretary, such a condition and right of reverter is 
appropriate to the statute under which the real property is obtained and 
to the nature of the grant and the grantee. In such event if a 
transferee of real property proposes to mortgage or otherwise encumber 
the real property as security for financing construction of new, or 
improvement of existing, facilities on such property for the purposes 
for which the property was transferred, the Secretary may agree, upon 
request of the transferee and if necessary to accomplish such financing, 
and upon such conditions as he deems appropriate, to subordinate such 
right of reversion to the lien of such mortgage or other encumbrance.
    (b) Continuing Federal financial assistance. Every application by a 
State or a State agency for continuing Federal financial assistance to 
which this part applies (including the types of Federal financial 
assistance listed in appendix A to this part) shall as a condition to 
its approval and the extension of any Federal financial assistance 
pursuant to the application: (1) Contain or be accompanied by a 
statement that the program is (or, in the case of a new program, will 
be) conducted in compliance with all requirements imposed by or pursuant 
to this part, and (2) provide or be accompanied by provision for such 
methods of administration for the program as are found by the Secretary 
to give reasonable guarantee that the applicant and all recipients of 
Federal financial assistance under such program will comply with all 
requirements imposed by or pursuant to this part.

[35 FR 10080, June 18, 1970, as amended at 68 FR 51389, Aug. 26, 2003]



Sec.  21.9  Compliance information.

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

[[Page 143]]

of a recipient is in the exclusive possession of any other agency, 
institution, or person and this agency, institution, or person fails or 
refuses to furnish this information, the recipient shall so certify in 
its report and shall set forth what efforts it has made to obtain the 
information.
    (d) Information to beneficiaries and participants. Each recipient 
shall make available to participants, beneficiaries, and other 
interested persons such information regarding the provisions of this 
part and its applicability to the program for which the recipient 
receives Federal financial assistance, and make such information 
available to them in such manner, as the Secretary finds necessary to 
apprise such persons of the protections against discrimination assured 
them by the Act and this part.

[35 FR 10080, June 18, 1970, as amended by Amdt. 72-2, 38 FR 17997, July 
5, 1973; 68 FR 51389, Aug. 26, 2003]



Sec.  21.11  Conduct of investigations.

    (a) Periodic compliance reviews. The Secretary shall from time to 
time review the practices of recipients to determine whether they are 
complying with this part.
    (b) Complaints. Any person who believes himself or any specific 
class of persons to be subjected to discrimination prohibited by this 
part may by himself or by a representative file with the Secretary a 
written complaint. A complaint must be filed not later than 180 days 
after the date of the alleged discrimination, unless the time for filing 
is extended by the Secretary.
    (c) Investigations. The Secretary will make a prompt investigation 
whenever a compliance review, report, complaint, or any other 
information indicates a possible failure to comply with this part. The 
investigation will include, where appropriate, a review of the pertinent 
practices and policies of the recipient, the circumstances under which 
the possible noncompliance with this part occurred, and other factors 
relevant to a determination as to whether the recipient has failed to 
comply with this part.
    (d) Resolution of matters. (1) If an investigation pursuant to 
paragraph (c) of this section indicates a failure to comply with this 
part, the Secretary will so inform the recipient and the matter will be 
resolved by informal means whenever possible. If it has been determined 
that the matter cannot be resolved by informal means, action will be 
taken as provided for in Sec.  21.13.
    (2) If an investigation does not warrant action pursuant to 
paragraph (d)(1) of this section the Secretary will so inform the 
recipient and the complainant, if any, in writing.
    (e) Intimidatory or retaliatory acts prohibited. No recipient or 
other person shall intimidate, threaten, coerce, or discriminate against 
any individual for the purpose of interfering with any right or 
privilege secured by section 601 of the Act or this part, or because he 
has made a complaint, testified, assisted, or participated in any manner 
in an investigation, proceeding, or hearing under this part. The 
identity of complainants shall be kept confidential except to the extent 
necessary to carry out the purposes of this part, including the conduct 
of any investigation, hearing, or judicial proceeding arising 
thereunder.

[35 FR 10080, June 18, 1970, as amended by Amdt. 72-2, 38 FR 17997, July 
5, 1973]



Sec.  21.13  Procedure for effecting compliance.

    (a) General. If there appears to be a failure or threatened failure 
to comply with this part, and if the noncompliance or threatened 
noncompliance cannot be corrected by informal means, compliance with 
this part may be effected by the suspension or termination of or refusal 
to grant or to continue Federal financial assistance or by any other 
means authorized by law. Such other means may include, but are not 
limited to: (1) A reference to the Department of Justice with a 
recommendation that appropriate proceedings be brought to enforce any 
rights of the United States under any law of the United States 
(including other titles of the Act), or any assurance or other 
contractual undertaking, and (2) any applicable proceeding under State 
or local law.
    (b) Noncompliance with Sec.  21.7. If an applicant fails or refuses 
to furnish an assurance required under Sec.  21.7 or otherwise fails or 
refuses to comply with a

[[Page 144]]

requirement imposed by or pursuant to that section, Federal financial 
assistance may be refused in accordance with the procedures of paragraph 
(c) of this section. The Department shall not be required to provide 
assistance in such a case during the pendency of the administrative 
proceedings under such paragraph. However, subject to Sec.  21.21, the 
Department shall continue assistance during the pendency of such 
proceedings where such assistance is due and payable pursuant to an 
application approved prior to the effective date of this part.
    (c) Termination of or refusal to grant or to continue Federal 
financial assistance. No order suspending, terminating, or refusing to 
grant or continue Federal financial assistance shall become effective 
until:
    (1) The Secretary has advised the applicant or recipient of his 
failure to comply and has determined that compliance cannot be secured 
by voluntary means;
    (2) There has been an express finding on the record, after 
opportunity for hearing, of a failure by the applicant or recipient to 
comply with a requirement imposed by or pursuant to this part;
    (3) The action has been approved by the Secretary pursuant to Sec.  
21.17(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 applicant or recipient as to 
whom such a finding has been made and shall be limited in its effect to 
the particular program, or part thereof, in which such noncompliance has 
been so found.
    (d) Other means authorized by law. No action to effect compliance 
with title VI of the Act by any other means authorized by law shall be 
taken by this Department until:
    (1) The Secretary has determined that compliance cannot be secured 
by voluntary means;
    (2) The recipient or other person has been notified of its failure 
to comply and of the action to be taken to effect compliance; and
    (3) The expiration of at least 10 days from the mailing of such 
notice to the recipient or other person. During this period of at least 
10 days, additional efforts shall be made to persuade the recipient or 
other person to comply with the regulation and to take such corrective 
action as may be appropriate.



Sec.  21.15  Hearings.

    (a) Opportunity for hearing. Whenever an opportunity for a hearing 
is required by Sec.  21.13(c), reasonable notice shall be given by 
registered or certified mail, return receipt requested, to the affected 
applicant or recipient. This notice shall advise the applicant or 
recipient of the action proposed to be taken, the specific provision 
under which the proposed action against it is to be taken, and the 
matters of fact or law asserted as the basis for this action, and 
either: (1) Fix a date not less than 20 days after the date of such 
notice within which the applicant or recipient may request of the 
Secretary that the matter be scheduled for hearing or (2) advise the 
applicant or recipient that the matter in question has been set down for 
hearing at a stated place and time. The time and place so fixed shall be 
reasonable and shall be subject to change for cause. The complainant, if 
any, shall be advised of the time and place of the hearing. An applicant 
or recipient may waive a hearing and submit written information and 
argument for the record. The failure of an applicant or recipient to 
request a hearing under this paragraph or to appear at a hearing for 
which a date has been set shall be deemed to be a waiver of the right to 
a hearing under section 602 of the Act and Sec.  21.13(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 Secretary 
unless he determines that the convenience of the applicant or recipient 
or of the Department requires that another place be selected. Hearings 
shall be held before

[[Page 145]]

the Secretary, or at his discretion, before a hearing examiner appointed 
in accordance with section 3105 of title 5, United States Code, or 
detailed under section 3344 of title 5, United States Code.
    (c) Right to counsel. In all proceedings under this section, the 
applicant or recipient and the 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 
sections 554 through 557 of title 5, United States Code, and in 
accordance with such rules of procedure as are proper (and not 
inconsistent with this section) relating to the conduct of the hearing, 
giving of notices subsequent to those provided for in paragraph (a) of 
this section, taking of testimony, exhibits, arguments and briefs, 
requests for findings, and other related matters. Both the Department 
and the applicant or recipient shall be entitled to introduce all 
relevant evidence on the issues as stated in the notice for hearing or 
as determined by the officer conducting the hearing at the outset of or 
during the hearing.
    (2) Technical rules of evidence do not apply to hearings conducted 
pursuant to this part, but rules or principles designed to assure 
production of the most credible evidence available and to subject 
testimony to test by cross-examination shall be applied where 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 or procedures not inconsistent with this part. Final decisions 
in such cases, insofar as this regulation is concerned, shall be made in 
accordance with Sec.  21.17.

[35 FR 10080, June 18, 1970, as amended at 68 FR 51389, Aug. 26, 2003]



Sec.  21.17  Decisions and notices.

    (a) Procedure on decisions by hearing examiner. If the hearing is 
held by a hearing examiner, the hearing examiner shall either make an 
initial decision, if so authorized, or certify the entire record 
including his recommended findings and proposed decision to the 
Secretary for a final decision, and a copy of such initial decision or 
certification shall be mailed to the applicant or recipient. Where the 
initial decision is made by the hearing examiner the applicant or 
recipient may, within 30 days after the mailing of such notice of 
initial decision, file with the Secretary his exceptions to the initial 
decision, with his reasons therefor. In the absence of exceptions, the 
Secretary may, on his own motion, within 45 days after the initial 
decision, serve on the applicant or recipient a notice that he will 
review the decision. Upon the filing of such exceptions or of notice of 
review, the Secretary shall review the initial decision and issue his 
own decision thereon including the reasons therefor. In the absence of 
either exceptions or a notice of review the initial decision shall, 
subject to paragraph (e) of this section, constitute the final decision 
of the Secretary.
    (b) Decisions on record or review by the Secretary. Whenever a 
record is certified to the Secretary for decision or he reviews the 
decision of a hearing examiner pursuant to paragraph (a) of this 
section, or whenever the Secretary conducts the hearing, the applicant 
or

[[Page 146]]

recipient shall be given reasonable opportunity to file with him briefs 
or other written statements of its contentions, and a written copy of 
the final decision of the Secretary shall be sent to the applicant or 
recipient and to the complainant, if any.
    (c) Decisions on record where a hearing is waived. Whenever a 
hearing is waived pursuant to Sec.  21.15, a decision shall be made by 
the Secretary on the record and a written copy of such decision shall be 
sent to the applicant or recipient, and to the complainant, if any.
    (d) Rulings required. Each decision of a hearing examiner or the 
Secretary shall set forth his ruling on each finding, conclusion, or 
exception presented, and shall identify the requirement or requirements 
imposed by or pursuant to this part with which it is found that the 
applicant or recipient has failed to comply.
    (e) Approval by Secretary. Any final decision by an official of the 
Department, other than the Secretary personally, which provides for the 
suspension or termination of, or the refusal to grant or continue 
Federal financial assistance, or the imposition of any other sanction 
available under this part or the Act, shall promptly be transmitted to 
the Secretary personally, who may approve such decision, may vacate it, 
or remit or mitigate any sanction imposed.
    (f) Content of orders. The final decision may provide for suspension 
or termination of, or refusal to grant or continue Federal financial 
assistance, in whole or in part, to which this regulation applies, and 
may contain such terms, conditions, and other provisions as are 
consistent with and will effectuate the purposes of the Act and this 
part, including provisions designed to assure that no Federal financial 
assistance to which this regulation applies will thereafter be extended 
to the applicant or recipient determined by such decision to be in 
default in its performance of an assurance given by it pursuant to this 
part, or to have otherwise failed to comply with this part, unless and 
until it corrects its noncompliance and satisfies the Secretary that it 
will fully comply with this part.
    (g) Post termination proceedings. (1) An applicant or recipient 
adversely affected by an order issued under paragraph (f) of this 
section shall be restored to full eligibility to receive Federal 
financial assistance if it satisfies the terms and conditions of that 
order for such eligibility or if it brings itself into compliance with 
this part and provides reasonable assurance that it will fully comply 
with this part.
    (2) Any applicant or recipient adversely affected by an order 
entered pursuant to paragraph (f) of this section may at any time 
request the Secretary to restore fully its eligibility to receive 
Federal financial assistance. Any such request shall be supported by 
information showing that the applicant or recipient has met the 
requirements of paragraph (g)(1) of this section. If the Secretary 
determines that those requirements have been satisfied, he shall restore 
such eligibility.
    (3) If the Secretary denies any such request, the applicant or 
recipient may submit a request for a hearing in writing, specifying who 
it believes such official to have been in error. It shall thereupon be 
given an expeditious hearing, with a decision on the record in 
accordance with rules or procedures issued by the Secretary. The 
applicant or recipient will be restored to such eligibility if it proves 
at such a hearing that it satisfied the requirements of paragraph (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.

[35 FR 10080, June 18, 1970, as amended at 68 FR 51389, Aug. 26, 2003]



Sec.  21.19  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.  21.21  Effect on other regulations, forms, and instructions.

    (a) Effect on other regulations. All regulations, orders, or like 
directions issued before the effective date of this part by any officer 
of the Department which impose requirements designed to prohibit any 
discrimination against individuals on the grounds of race, color, or 
national origin under any program to which this part applies, and which

[[Page 147]]

authorize the suspension or termination of or refusal to grant or to 
continue Federal financial assistance to any applicant for a recipient 
of such assistance for failure to comply with such requirements, are 
hereby superseded to the extent that such discrimination is prohibited 
by this part, except that nothing in this part may be considered to 
relieve any person of any obligation assumed or imposed under any such 
superseded regulation, order, instruction, or like direction before the 
effective date of this part. Nothing in this part, however, supersedes 
any of the following (including future amendments thereof): (1) 
Executive Order 11246 (3 CFR, 1965 Supp., p. 167) and regulations issued 
thereunder or (2) any other orders, regulations, or instructions, 
insofar as such orders, regulations, or instructions prohibit 
discrimination on the ground of race, color, or national origin in any 
program or situation to which this part is inapplicable, or prohibit 
discrimination on any other ground.
    (b) Forms and instructions. The Secretary shall issue and promptly 
make available to all interested persons forms and detailed instructions 
and procedures for effectuating this part as applied to programs to 
which this part applies and for which 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.  21.17), 
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 
Secretary of this Department.

[35 FR 10080, June 18, 1970, as amended at 68 FR 51389, Aug. 26, 2003]



Sec.  21.23  Definitions.

    Unless the context requires otherwise, as used in this part:
    (a) Applicant means a person who submits an application, request, or 
plan required to be approved by the Secretary, or by a primary 
recipient, as a condition to eligibility for Federal financial 
assistance, and ``application'' means such an application, request, or 
plan.
    (b) Facility includes all or any part of structures, equipment, or 
other real or personal property or interests therein, and the provision 
of facilities includes the construction, expansion, renovation, 
remodeling, alteration or acquisition of facilities.
    (c) Federal financial assistance includes:
    (1) Grants and loans of Federal funds;
    (2) The grant or donation of Federal property and interests in 
property;
    (3) The detail of Federal personnel;
    (4) The sale and lease of, and the permission to use (on other than 
a casual or transient basis), Federal property or any interest in such 
property without consideration or at a nominal consideration, or at a 
consideration which is reduced for the purpose of assisting the 
recipient, or in recognition of the public interest to be served by such 
sale or lease to the recipient; and
    (5) Any Federal agreement, arrangement, or other contract which has 
as one of its purposes the provision of assistance.
    (d) Primary recipient means any recipient that is authorized or 
required to extend Federal financial assistance to another recipient.
    (e) Program or activity and program mean all of the operations of 
any entity described in paragraphs (e)(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

[[Page 148]]

    (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 (e)(1), (2), or (3) of this section.
    (f) Recipient may mean any State, territory, possession, the 
District of Columbia, or Puerto Rico, or any political subdivision 
thereof, or instrumentality thereof, any public or private agency, 
institution, or organization, or other entity, or any individual, in any 
State, territory, possession, the District of Columbia, or Puerto Rico, 
to whom Federal financial assistance is extended, directly or through 
another recipient, including any successor, assignee, or transferee 
thereof, but such term does not include any ultimate beneficiary.
    (g) Secretary means the Secretary of Transportation or, except in 
Sec.  21.17 (e), any person to whom he has delegated his authority in 
the matter concerned.

[35 FR 10080, June 18, 1970, as amended at 68 FR 51389, Aug. 26, 2003]



    Sec. Appendix A to Part 21--Activities to Which This Part Applies

    1. Use of grants made in connection with Federal-aid highway systems 
(23 U.S.C. 101 et seq.).
    2. Use of grants made in connection with the Highway Safety Act of 
1966 (23 U.S.C. 401 et seq.).
    3. Use of grants in connection with the National Traffic and Motor 
Vehicle Safety Act of 1966 (15 U.S.C. 1391-1409, 1421-1425).
    4. Lease of real property and the grant of permits, licenses, 
easements and rights-of-way covering real property under control of the 
Coast Guard (14 U.S.C. 93 (n) and (o)).
    5. Utilization of Coast Guard personnel and facilities by any State, 
territory, possession, or political subdivision thereof (14 U.S.C. 
141(a)).
    6. Use of Coast Guard personnel for duty in connection with maritime 
instruction and training by the States, territories, and Puerto Rico (14 
U.S.C. 148).
    7. Use of obsolete and other Coast Guard material by sea scout 
service of Boy Scouts of America, any incorporated unit of the Coast 
Guard auxiliary, and public body or private organization not organized 
for profit (14 U.S.C. 641(a)).
    8. U.S. Coast Guard Auxiliary Program (14 U.S.C. 821-832).
    9. Use of grants for the support of basic scientific research by 
nonprofit institutions of higher education and nonprofit organizations 
whose primary purpose is conduct of scientific research (42 U.S.C. 
1891).
    10. Use of grants made in connection with the Federal-aid Airport 
Program (secs. 1-15 and 17-20 of the Federal Airport Act, 49 U.S.C. 
1101-1114, 1116-1120).
    11. Use of U.S. land acquired for public airports under:
    a. Section 16 of the Federal Airport Act, 49 U.S.C. 1115; and
    b. Surplus Property Act (sec. 13(g) of the Surplus Property Act of 
1944, 50 U.S.C. App. 1622(g), and sec. 3 of the Act of Oct. 1, 1949, 50 
U.S.C. App. 1622b).
    12. Activities carried out in connection with the Aviation Education 
Program of the Federal Aviation Administration under sections 305, 311, 
and 313(a) of the Federal Aviation Act of 1958, as amended (49 U.S.C. 
1346, 1352, and 1354(a)).
    13. Use of grants and loans made in connection with public 
transportation programs (49 U.S.C. chapter 53).
    14. Use of grants made in connection with the High Speed Ground 
Transportation Act, as amended (49 U.S.C. 631-642).

[35 FR 10080, June 18, 1970, as amended at 79 FR 21405, Apr. 16, 2014]

[[Page 149]]



Sec. Appendix B to Part 21--Activities to Which This Part Applies When a 
  Primary Objective of the Federal Financial Assistance Is To Provide 
                               Employment

    1. Appalachia Regional Development Act of 1965 (40 U.S.C. App. 1 et 
seq.).



 Sec. Appendix C to Part 21--Application of Part 21 to Certain Federal 
        Financial Assistance of the Department of Transportation

            Nondiscrimination on Federally Assisted Projects

    (a) Examples. The following examples, without being exhaustive, 
illustrate the application of the nondiscrimination provisions of this 
part on projects receiving Federal financial assistance under the 
programs of certain Department of Transportation operating 
administrations:
    (1) Federal Aviation Administration. (i) The airport sponsor or any 
of his lessees, concessionaires, or contractors may not differentiate 
between members of the public because of race, color, or national origin 
in furnishing, or admitting to, waiting rooms, passenger holding areas, 
aircraft tiedown areas, restaurant facilities, restrooms, or facilities 
operated under the compatible land use concept.
    (ii) The airport sponsor and any of his lessees, concessionaires, or 
contractors must offer to all members of the public the same degree and 
type of service without regard to race, color, or national origin. This 
rule applies to fixed base operators, restaurants, snack bars, gift 
shops, ticket counters, baggage handlers, car rental agencies, 
limousines and taxis franchised by the airport sponsor, insurance 
underwriters, and other businesses catering to the public at the 
airport.
    (iii) An aircraft operator may not be required to park his aircraft 
at a location that is less protected, or less accessible from the 
terminal facilities, than locations offered to others, because of his 
race, color, or national origin.
    (iv) The pilot of an aircraft may not be required to help more 
extensively in fueling operations, and may not be offered less 
incidental service (such as windshield wiping), than other pilots, 
because of his race, color, or national origin.
    (v) No pilot or crewmember eligible for access to a pilot's lounge 
or to unofficial communication facilities such as a UNICOM frequency may 
be restricted in that access because of his race, color, or national 
origin.
    (vi) Access to facilities maintained at the airport by air carriers 
or commercial operators for holders of first-class transportation 
tickets or frequent users of the carrier's or operator's services may 
not be restricted on the basis of race, color, or national origin.
    (vii) Passengers and crewmembers seeking ground transportation from 
the airport may not be assigned to different vehicles, or delayed or 
embarrassed in assignment to vehicles, by the airport sponsor or his 
lessees, concessionaires, or contractors, because of race, color, or 
national origin.
    (viii) Where there are two or more sites having equal potential to 
serve the aeronautical needs of the area, the airport sponsor shall 
select the site least likely to adversely affect existing communities. 
Such site selection shall not be made on the basis of race, color, or 
national origin.
    (ix) Employment at obligated airports, including employment by 
tenants and concessionaires shall be available to all regardless of 
race, creed, color, sex, or national origin. The sponsor shall 
coordinate his airport plan with his local transit authority and the 
Federal Transit Administration to assure public transportation, 
convenient to the disadvantaged areas of nearby communities to enhance 
employment opportunities for the disadvantaged and minority population.
    (x) The sponsor shall assure that the minority business community in 
his area is advised of the opportunities offered by airport concessions, 
and that bids are solicited from such qualified minority firms, and 
awards made without regard to race, color, or national origin.
    (2) Federal Highway Administration. (i) The State, acting through 
its highway department, may not discriminate in its selection and 
retention of contractors, including without limitation, those whose 
services are retained for, or incidental to, construction, planning, 
research, highway safety, engineering, property management, and fee 
contracts and other commitments with person for services and expenses 
incidental to the acquisition of right-of-way.
    (ii) The State may not discriminate against eligible persons in 
making relocation payments and in providing relocation advisory 
assistance where relocation is necessitated by highway right-of-way 
acquisitions.
    (iii) Federal-aid contractors may not discriminate in their 
selection and retention of first-tier subcontractors, and first-tier 
subcontractors may not discriminate in their selection and retention of 
second-tier subcontractors, who participate in Federal-aid highway 
construction, acquisition of right-of-way and related projects, 
including those who supply materials and lease equipment.
    (iv) The State may not discriminate against the traveling public and 
business users of the federally assisted highway in their access to and 
use of the facilities and services provided for public accommodations 
(such as eating, sleeping, rest, recreation,

[[Page 150]]

and vehicle servicing) constructed on, over or under the right-of-way of 
such highways.
    (v) Neither the State, any other persons subject to this part, nor 
its contractors and subcontractors may discriminate in their employment 
practices in connection with highway construction projects or other 
projects assisted by the Federal Highway Administration.
    (vi) The State shall not locate or design a highway in such a manner 
as to require, on the basis of race, color, or national origin, the 
relocation of any persons.
    (vii) The State shall not locate, design, or construct a highway in 
such a manner as to deny reasonable access to, and use thereof, to any 
persons on the basis of race, color, or national origin.
    (3) Federal Transit Administration. (i) Any person who is, or seeks 
to be, a patron of any public vehicle which is operated as a part of, or 
in conjunction with, a project shall be given the same access, seating, 
and other treatment with regard to the use of such vehicle as other 
persons without regard to their race, color, or national origin.
    (ii) No person who is, or seeks to be, an employee of the project 
sponsor or lessees, concessionaires, contractors, licensees, or any 
organization furnishing public transportation service as a part of, or 
in conjunction with, the project shall be treated less favorably than 
any other employee or applicant with regard to hiring, dismissal, 
advancement, wages, or any other conditions and benefits of employment, 
on the basis of race, color, or national origin.
    (iii) No person or group of persons shall be discriminated against 
with regard to the routing, scheduling, or quality of service of 
transportation service furnished as a part of the project on the basis 
of race, color, or national origin. Frequency of service, age and 
quality of vehicles assigned to routes, quality of stations serving 
different routes, and location of routes may not be determined on the 
basis of race, color, or national origin.
    (iv) The location of projects requiring land acquisition and the 
displacement of persons from their residences and businesses may not be 
determined on the basis of race, color, or national origin.
    (b) Obligations of the airport operator--(1) Tenants, contractors, 
and concessionaires. Each airport operator shall require each tenant, 
contractor, and concessionaire who provides any activity, service, or 
facility at the airport under lease, contract with, or franchise from 
the airport, to covenant in a form specified by the Administrator, 
Federal Aviation Administration, that he will comply with the 
nondiscrimination requirements of this part.
    (2) Notification of beneficiaries. The airport operator shall: (i) 
Make a copy of this part available at his office for inspection during 
normal working hours by any person asking for it, and (ii) conspicuously 
display a sign, or signs, furnished by the FAA, in the main public area 
or areas of the airport, stating that discrimination based on race, 
color, or national origin is prohibited on the airport.
    (3) Reports. Each airport owner subject to this part shall, within 
15 days after he receives it, forward to the Area Manager of the FAA 
Area in which the airport is located a copy of each written complaint 
charging discrimination because of race, color, or national origin by 
any person subject to this part, together with a statement describing 
all actions taken to resolve the matter, and the results thereof. Each 
airport operator shall submit to the area manager of the FAA area in 
which the airport is located a report for the preceding year on the date 
and in a form prescribed by the Federal Aviation Administrator.

[35 FR 10080, June 18, 1970, as amended by Amdt. 21-1, 38 FR 5875, Mar. 
5, 1973; Amdt. 21-3, 40 FR 14318, Mar. 31, 1975; 79 FR 21405, Apr. 16, 
2014]



PART 22_SHORT-TERM LENDING PROGRAM (STLP)--Table of Contents



                            Subpart A_General

Sec.
22.1 Purpose.
22.3 Definitions.

                Subpart B_Policies applying to STLP loans

22.11 Eligibility criteria.
22.13 Loan terms and conditions.
22.15 Delinquency on Federal, State, and Municipal debt.
22.17 Compliance with child support obligations.
22.19 Credit criteria.

                     Subpart C_Participating Lenders

22.21 Participation criteria.
22.23 Agreements.
22.25 Lender deliverables and delivery schedule.
22.27 Eligible reimbursements to participating lenders.
22.29 DOT access to participating lender files.
22.31 Suspension or revocation of eligibility to participate.
22.33 Termination of participation in the STLP.

                   Subpart D_Loan Application Process

22.41 Application procedures.
22.43 Approvals and denials.
22.45 Allowable fees to borrowers.

[[Page 151]]

                      Subpart E_Loan Administration

22.51 Loan closings.
22.53 Loan monitoring & Servicing requirements.
22.57 Loan reporting requirements.
22.59 Loan modifications.
22.61 Loan guarantee extensions.
22.63 Loan close outs.
22.65 Subordination.
22.67 Delinquent loans and loan defaults.
22.69 Claims process.

    Authority: 49 U.S.C. 332.

    Source: 75 FR 19290, Apr. 14, 2010, unless otherwise noted.



                            Subpart A_General



Sec.  22.1  Purpose.

    The purpose of the DOT OSDBU STLP is to provide financial assistance 
in the form of short-term loans from Participating Lenders that are 
guaranteed by DOT OSDBU, to DBEs and SDBs for the execution of DOT 
funded and supported transportation-related contracts.



Sec.  22.3  Definitions.

    As used in this part:
    Accounts receivable means monies that are due to the borrower for 
work performed or services rendered under a contract, subcontract, or 
purchase order.
    Activation date means the date that the STLP loan is established on 
the Participating Lender's books and recorded as an open loan. It is 
also the date that the borrower can begin to drawn funds from the line 
of credit. Activation date is also the date in which the DOT OSDBU 
guarantee becomes effective.
    Assigned contract means the transportation-related contract(s), 
subcontract(s), and/or purchase order(s) that has been pledged as 
collateral to a STLP loan and perfected through an assignment form 
executed by all appropriate parties.
    Borrower is the obligor of a DOT OSDBU guaranteed loan.
    Cooperative agreement is the written agreement between DOT OSDBU and 
a Participating Lender that outlines the terms and conditions under 
which the lender may submit eligible loan requests to DOT OSDBU for 
consideration of its loan guarantee. The cooperative agreement further 
outlines the responsibilities and requirements of the lender in order to 
participate in the STLP.
    Director means Director, Office of Small and Disadvantaged Business 
Utilization, U.S. Department of Transportation.
    Disadvantaged business enterprise or DBE means a business that is 
certified as such by a recipient of DOT financial assistance as provided 
in 49 CFR part 23 or 49 CFR part 26.
    Guarantee agreement means DOT OSDBU's written agreement with a 
Participating Lender that provides the terms and conditions under which 
DOT OSDBU will guarantee a STLP loan. It is not a contract to make a 
direct loan to the borrower.
    Loan guarantee means the agreement of DOT OSDBU to issue a guarantee 
of payment of a specified portion of an approved STLP loan to the 
Participating Lender, under DOT OSDBU stated terms and conditions, in 
the event that the borrower defaults on the loan.
    Loan purpose means the approved uses for STLP loan proceeds. That 
is, only for short-term working capital needs related to the direct 
costs of an eligible transportation-related contract.
    Other eligible certifications mean the following certifications 
obtained by a borrower through the U.S. Small Business Administration 
(SBA): Small Disadvantaged Business (SDB); Section 8(a) Program 
participant; HUBZONE Empowerment Contracting Program; and Service-
Disabled Veteran Program (SDV).
    Participating Lender (PL) is a bank or other lending institution 
that has agreed to the terms of a cooperative agreement and has been 
formally accepted into the STLP by DOT OSDBU.
    Small and disadvantaged business (SDB) includes 8(a); small 
disadvantaged business; women-owned business, HubZone, and service-
disabled veteran-owned business.
    Socially and economically disadvantaged individual has the same 
meaning as stated in 49 CFR 26.5.
    Technical assistance means service provided by the Participating 
Lender to the DBE or SDB that will enable the DBE or SDB to become more 
capable of

[[Page 152]]

managing its transportation-related contracts. Technical assistance can 
be provided by collaborating with agencies that offer small business 
management counseling such as the SBA, the U. S. Department of 
Commerce's Minority Business Development Centers (MBDCs), the Service 
Corps of Retired Executives (SCORE), Procurement Technical Assistance 
Centers (PTACs), and Small Business Development Centers (SBDCs).
    Transportation-related contract means a contract, subcontract, or 
purchase order, at any tier, for the maintenance, rehabilitation, 
restructuring, improvement, or revitalization of any of the nation's 
modes of transportation that receive DOT funding.
    Work-out means a plan that offers options to avoid loan default or 
collateral foreclosure and/or liquidation that is intended to resolve 
delinquent loans or loans in imminent default, which may include, but 
not limited to: deferring or forgiving principal or interest, reducing 
the borrower's interest rate, extending the loan maturity and the 
government guarantee to the Participating Lender, or postponing 
collection action.



                Subpart B_Policies Applying to STLP Loans



Sec.  22.11  Eligibility criteria.

    (a) Eligible Borrower. To be eligible to apply for a STLP loan 
guarantee, a borrower must meet the following requirements:
    (1) Be a for-profit entity;
    (2) Have an eligible transportation-related contract;
    (3) Demonstrate an eligible use for the desired credit;
    (4) Be an established business with experience in the transportation 
industry and trade for which the STLP loan is sought;
    (5) Be certified as a DBE or have another eligible certification 
issued by the SBA; and
    (6) Be current on all federal, state, and local tax liabilities.
    (b) Eligible Transportation-Related Contract. Any fully-executed 
transportation-related contract, subcontract, or purchase order held 
directly with DOT or with grantees and recipients receiving federal 
funding from DOT for the maintenance, rehabilitation, restructuring, 
improvement or revitalization of any of the nation's modes of 
transportation shall be considered an eligible contract.
    (c) Eligibility Period. A borrower is eligible for participation in 
the STLP for a period up to a total of five (5) years. The STLP renewal 
is not automatic. The borrower has to demonstrate its continued 
eligibility and creditworthiness for STLP and must submit a complete 
application package.
    (1) The continued eligibility of any borrower who would exceed the 
period limit in paragraph (c) of this section will be determined on a 
case-by-case basis by the OSDBU Director and is subject to the following 
provisions:
    (i) The STLP loan guarantee may be reduced; and
    (ii) The STLP loan interest rate may be increased.
    (2) Should any borrower currently in the STLP become ineligible per 
paragraph (a) of this section during the term of a STLP loan, the 
failure to comply with a specific requirement must be brought to the 
immediate attention of all remaining parties.
    (3) Borrower ineligibility may result in a termination of the 
current guarantee.



Sec.  22.13  Loan terms and conditions.

    (a) Amount. The maximum face amount for an individual STLP loan may 
not exceed seven hundred and fifty thousand ($750,000) dollars, unless 
the requested increased amount is authorized by the OSDBU Director.
    (b) Interest Rates. All STLP loans shall have a variable interest 
rate.
    (1) Initial Interest Rate. The base rate guideline for STLP loans is 
the prime rate in effect on the first business day of the month in which 
the STLP loan guarantee is approved by DOT OSDBU. The prime rate is the 
rate printed in a national financial newspaper published each business 
day. The Participating Lender may increase the base rate by the maximum 
allowable percentage points currently allowed by STLP policies and 
procedures and as communicated in subsequent DOT OSDBU notices.

[[Page 153]]

    (2) Frequency of Change. The first change may occur on the first 
calendar day of the month following the initial loan disbursement, using 
the above base rate in effect on the first business day of the month. 
Subsequent interest rate changes may occur no more than monthly.
    (c) Loan Structure and Term. A STLP loan shall be set up as a 
revolving line of credit. The line permits the borrower to request 
principal advances, pay them back, and then re-borrow, not to exceed the 
face value of the line of credit. Participating Lenders are required to 
provide DOT OSDBU written notification of the activation date of each 
line of credit under the STLP. The term of the Federal guarantee of the 
line of credit commences on the activation date.
    (d) Repayment. Interest payments must be made monthly. The principal 
of the loan is repaid as payment from approved accounts receivable are 
received by the Participating Lender through a joint payee check system. 
The assigned contract supporting the STLP loan is the primary source of 
repayment.
    (e) Use of Loan Proceeds. STLP loans must be used to finance short-
term working capital needs, specifically direct costs generated by the 
assigned contract. Proceeds may not be used for the following purposes:
    (1) For long term working capital;
    (2) To repay delinquent State or Federal withholding taxes, local 
taxes, sales taxes or similar funds that should be held in trust or 
escrow; and/or
    (3) To provide funds for the distribution or payment to the owners, 
partners or shareholders of the business; and/or
    (4) To retire short or long-term debt.
    (f) Non-compliance by the DBE in using the STLP loan for purposes 
not consistent with these regulations will result in a non-renewal of 
the STLP loan and in forfeiture of the STLP loan guarantee to the PL on 
any ineligible principal advances requested by the borrower and made by 
the PL.
    (g) Disbursements. STLP funds may only be released to an eligible 
borrower upon the submission and verification of a valid written 
accounts receivable invoice, showing labor and/or materials amounts due 
for completed work on the contract. The Participating Lender must verify 
the accuracy of the invoice with the paying transportation government 
agency, if the borrower is a prime contractor, and/or with the prime 
contractor, if the borrower is a subcontractor. This verification must 
be obtained by the Participating Lender prior to advancing funds. No 
more than 85% of an approved accounts receivable invoice shall be 
advanced to the borrower by the Participating Lender.
    (1) Processing time. Disbursement of STLP funds to the borrower 
should be accomplished within three (3) business days of an accounts 
receivable invoice approval by the paying agency and/or prime 
contractor.
    (2) Electronic funds transfer. If the disbursement of STLP funds is 
being sent to the borrower through a local Participating Lender, the 
disbursement should be made by electronic funds transfer with the 
preferred method of payment being the Automated Clearing House (ACH) 
system.
    (3) Wire transfers. Wire transfers can be used if the ACH system is 
not available or if a same day disbursement is required.
    (4) Joint payee check system. A two-party payee check system is 
required in which the Participating Lender and the borrower will be the 
co-payees of any checks paid to the borrower for performance under the 
assigned contract. Alternative payment methods must have prior written 
approval by DOT OSDBU.
    (h) Personal Guarantees. Individuals who own at least a 20% 
ownership interest in the borrower shall personally guarantee the STLP 
loan. DOT OSDBU, in its discretion and in consulting with the 
Participating Lender, may require other appropriate guarantees for the 
loan as well.
    (i) Collateral. All advances under the STLP loan must be secured, at 
a minimum, by the assignment of the proceeds due under the 
transportation-related contract(s) being funded with loan proceeds (the 
Assigned Contract). The Participating Lender must have first lien 
position on the Accounts Receivable generated by the Assigned Contract. 
The Participating Lender

[[Page 154]]

and/or DOT OSDBU may request additional collateral on any loan request 
or loan guarantee request in order to mitigate the credit risk and 
reduce potential defaults and loan losses.
    (j) Key Person Life Insurance. The assignment of existing life 
insurance policies of personal guarantors or other individuals critical 
to the borrower's operations may be required by the Participating Lender 
and/or DOT OSDBU in certain instances; and it is encouraged for those 
business applicants that do not have a management succession plan 
clearly in place or where a personal guarantee provides nominal 
financial strength to the credit.



Sec.  22.15  Delinquency on Federal, State, or Municipality Debt.

    (a) The borrower must not be delinquent on any Federal, State, or 
municipality debt, including tax debts. Further, none of the principals 
and/or owners of the borrower can be delinquent on any Federal, State, 
or municipality debt, including personal tax debt. The borrower must 
acknowledge its status in writing as part of any STLP loan guarantee 
application. Participating Lenders and the DOT OSDBU must verify the 
borrower's status through the use of business and personal credit 
reports, as well as other appropriate Federal and State databases.
    (b) If any delinquencies are determined during the application 
process, consideration of the request must be suspended until the 
delinquency is satisfactorily resolved, as determined and approved by 
the Director. If the delinquency cannot be resolved within a reasonable 
amount of time, the loan request must be declined.



Sec.  22.17  Compliance with child support obligations.

    Any holder of 50% or more of the ownership interest in the recipient 
of a STLP Loan must certify that he or she is not more than 60 days 
delinquent on any obligation to pay child support arising under:
    (a) An administrative order;
    (b) A court order;
    (c) A repayment agreement between the holder and a custodial parent; 
or
    (d) A repayment agreement between the holder and a State agency 
providing child support enforcement services.



Sec.  22.19  Credit criteria.

    An applicant for a STLP loan must be creditworthy and demonstrate an 
ability to repay the loan as well as satisfactory handling of the 
repayment of past and current debts. The Participating Lender and DOT 
OSDBU shall consider:
    (a) Character, reputation, and credit history of the applicant, its 
principals and owners, and all other guarantors;
    (b) Experience and depth of key management in the industry;
    (c) Financial strength of the business;
    (d) Past earnings, projected earnings and cash flow, and work in 
progress;
    (e) Ability to repay the loan;
    (f) Sufficient equity to operate on a sound financial basis; and
    (g) Capacity to perform under the transportation-related 
contract(s).



                     Subpart C_Participating Lenders



Sec.  22.21  Participation criteria.

    A lender who participates in the STLP must meet the following 
criteria:
    (a) It must operate as a lending institution certified by the 
Federal Deposit Insurance Corporation (FDIC), Federal Reserve Board, 
Office of the Comptroller of the Currency, Office of Thrift Supervision, 
Community Development Corporation (CDC), or Community Development 
Financial Institution (CDFI), for at least five (5) years;
    (b) It must demonstrate a philosophy and history of lending to 
small, disadvantaged and women-owned businesses in their communities. 
Information will be requested by the Director on the number of short-
term loans made to companies listed in paragraph (a)(5) of Sec.  22.11. 
The Participating Lender shall submit information showing its efforts in 
relationship to its overall portfolio;
    (c) It must demonstrate experience in administering monitored lines 
of credit, such as construction loans, accounts receivable financing, 
and/or contract financing for at least two years. Such

[[Page 155]]

experience should be held by any Participating Lender representative 
managing, reviewing or authorizing STLP loan portfolios;
    (d) It must have at least two (2) years experience with other 
federal government lending programs such as U.S. Small Business 
Administration (SBA), Agriculture Rural Development, Bureau of Indian 
Affairs (BIA), Economic Development Administration (EDA), Department of 
Housing and Urban Development (HUD), Export Import Bank of the United 
States and/or state loan programs.
    (e) It must have at least a satisfactory or better Community 
Reinvestment Act (CRA) rating;
    (f) It must designate a Participating Lender representative to 
effectively administer the STLP loan portfolio;
    (g) It must have the ability to evaluate, process, close, disburse, 
service and liquidate STLP loans;
    (h) It must demonstrate the ability to implement, monitor and manage 
a two-party payee check system, in which the Participating Lender and 
borrower are joint payees of any checks paid to the borrower for 
performance under the assigned contract(s);
    (i) It must not currently be debarred or suspended from 
participation in a government contract or delinquent on a government 
debt. The Participating lender must submit a current form DOT F 2309-1 
Certification Regarding Debarment, Suspension. The certification form is 
available at http://www.osdbu.dot.gov/financial/docs/
Cert_Debarment_DOT_F_2309-1.pdf.
    (j) It must be a drug-free workplace. The Participating Lender must 
execute current form DOT F 2307-1 Drug-Free Workplace Act Certification 
For A Grantee Other Than An Individual. The certification form is 
available at http://www.osdbu.dot.gov/financial/docs/Cert_Drug-
Free_DOT_F_2307-1.pdf.; and
    (k) It must certify that no Federal funds will be utilized for 
lobbying by executing a current form DOT F 2308-1 Certificate Regarding 
Lobbying For Contracts, Grants, Loans, and Cooperative Agreements in 
compliance with section 1352, title 21, of the U.S. Code. The 
certification form is available at http://www.osdbu.dot.gov/financial/
docs/Cert_Lobbying_DOT_F_2308-1.pdf.



Sec.  22.23  Agreements.

    (a) DOT OSDBU may enter into a cooperative agreement with a lender 
that meets the criteria defined in Sec.  22.21 in order for the lender 
to become a Participating Lender in the STLP. Such an agreement does not 
obligate DOT OSDBU to participate in any specific proposed loan that a 
lender may submit. The existence of a cooperative agreement does not 
limit the rights of DOT OSDBU to deny a specific loan or establish 
general policies. The current cooperative agreement is available at 
http://www.osdbu.dot.gov/financial/docs/Coop_Agreement.pdf.
    (b) The cooperative agreement is generally for a minimum period of 
twenty-four (24) months. DOT OSDBU will consider the cooperative 
agreement for renewal at the end of the designated term. If a 
cooperative agreement has expired, no further applications for the STLP 
shall be submitted to DOT OSDBU by the Participating Lender until a new 
cooperative agreement is executed by both parties.
    (c) Unless instructed otherwise by DOT OSDBU, after the expiration 
of the cooperative agreement, the Participating Lender will complete the 
documentation of any loans which have been given final DOT OSDBU 
approval prior to expiration of the cooperative agreement.
    (d) Following the expiration of the cooperative agreement, the 
Participating Lender may, subject to the written concurrence of DOT 
OSDBU, sell its STLP loans to another bank or to another Participating 
Lender that assumes the original rights and responsibilities to fund, 
service and collect the loan or loans.



Sec.  22.25  Lender deliverables and delivery schedule.

    All Participating Lenders must adhere to certain required periodic 
reports, submissions, and other actions that are outlined in the 
cooperative agreement and the loan guarantee agreements, as well as to 
the required due dates to DOT OSDBU.

[[Page 156]]



Sec.  22.27  Eligible reimbursements to participating lenders.

    Participating Lenders will be reimbursed by DOT OSDBU for reasonable 
expenses and costs that are incurred in the processing, administration, 
and monitoring of a STLP loan. The Participating Lender will be 
reimbursed as follows:
    (a) Processing/Underwriting Fee. A fee, as specified in the 
cooperative agreement will be reimbursed by DOT OSDBU, with a minimum 
fee of not less than one thousand ($1,000), per approved STLP loan 
guarantee, provided that DOT OSDBU receives proper notification of the 
activation date of the STLP loan.
    (b) Additional Administrative Fee: For total loan amounts of 
$150,000.00 or less, the Participating Lender can request an additional 
one-half (\1/2\) percent administrative fee for the increased loan 
monitoring and administrative assistance required to process the loan. 
The request must be supported with the information specified in the 
cooperative agreement.
    (c) Travel Expenses. For any pre-approved travel expenses, the 
Participating Lender will be reimbursed for certain costs, provided that 
paragraphs (c)(1) and (2) of this section are met:
    (1) A written request for travel, along with a statement of the 
purpose of the travel and proposed cost estimate, is submitted for DOT 
OSDBU for its approval no less than ten (10) business days prior to 
travel; and
    (2) A travel invoice accompanied by a written report explaining the 
findings of the travel is submitted to DOT OSDBU no later than thirty 
(30) days following the approved travel. Payment or reimbursement for 
travel shall be in accordance with the Joint Travel Regulations, Federal 
Travel Regulations and DOD FAR 31.205.46.
    (d) Attorney Fees. Legal fees incurred by the PL may be eligible for 
reimbursement. Prior written approval from DOT OSDBU is required. 
Attorney fees will be reimbursed on a pro-rata basis in proportion to 
the percentage of the government loan guarantee in relation to the total 
loan amount.



Sec.  22.29  DOT access to participating lenders files.

    A Participating Lender must allow the authorized representatives of 
DOT OSDBU, as well as representatives of the Office of Inspector General 
(OIG) and General Accountability Office (GAO), access to its STLP loan 
files to review, inspect, and copy all records and documents pertaining 
to DOT OSDBU guaranteed loans. Record retention of all relevant 
documents and other materials is specified in the cooperative agreement 
between DOT OSDBU and the Participating Lender.



Sec.  22.31  Suspension or revocation of eligibility to participate.

    (a) DOT OSDBU may suspend or revoke the eligibility of a 
Participating Lender to participate in the STLP by giving written notice 
in accordance with the terms and conditions cited in the cooperative 
agreement. Such notice may be given because of a violation of DOT OSDBU 
regulations; a breach of any agreement with DOT OSDBU; a change of 
circumstance resulting in the Participating Lender's inability to meet 
operational requirements; or a failure to engage in prudent lending 
practices. A suspension or revocation will not invalidate a loan 
guarantee previously approved by DOT OSDBU, providing that the specific 
loan was handled in accordance with its guarantee agreement, the 
cooperative agreement and/or these regulations.
    (b) The written notice to suspend or revoke participation in the 
STLP will specify the corrective actions that the Participating Lender 
must take, as well as the time period allowed for cure, prior to DOT 
OSDBU considering a termination of the cooperative agreement.



Sec.  22.33  Termination of participation in the STLP.

    (a) DOT OSDBU Termination for Convenience. DOT OSDBU may terminate a 
cooperative agreement for the convenience of the government, and without 
cause, upon prior written notice of thirty (30) days of its intent to 
terminate. Upon termination, DOT OSDBU shall remain liable on the pro-
rata share of the loan guarantee(s) received

[[Page 157]]

by the PL which received the Director's final approval, prior to the 
effective date of termination.
    (b) Participating Lender's Termination. The Participating Lender may 
terminate a cooperative agreement with written notice of sixty (60) days 
to DOT OSDBU of its intent to terminate. Upon termination, DOT OSDBU 
shall remain liable on the pro-rata share of the loan guarantee(s) 
received by the Participating Lender which received the Director's final 
approval, prior to the effective date of termination of the cooperative 
agreement.
    (c) DOT OSDBU Termination for Cause. DOT OSDBU may terminate a 
cooperative agreement, in whole or in part, at any time before the 
expiration of the term of the cooperative agreement or the expiration of 
any renewal term of the cooperative agreement, and without allowing any 
cure period as described in this section, if it determines that the 
Participating Lender failed to comply with any terms and conditions of 
its cooperative agreement and such failure cannot be reasonably 
addressed. DOT OSDBU shall promptly notify the Participating Lender in 
writing of this determination and the reasons for the termination, 
together with the effective date of termination.
    (d) DOT OSDBU may also terminate for cause any cooperative agreement 
with a Participating Lender that fails to comply with the corrective 
actions requested in a written notice of suspension of revocation within 
the specified cure period, in accordance with the terms and conditions 
further described in the cooperative agreement.



                   Subpart D_Loan Application Process



Sec.  22.41  Application procedures.

    (a) A STLP loan guarantee request application package shall consist 
of the DOT OSDBU Application for Loan Guarantee and supporting 
documentation as outlined below at paragraph (b) of this section. The 
application may be obtained directly from the office of DOT OSDBU, from 
a current Participating Lender, or online from the agency's Web site, 
currently at http://osdbu.dot.gov/documents/pdf/stlp/stlpapp.pdf.
    (b) Supporting documentation may include, but is not limited to, the 
following items: Business, trade or job performance reference letters; 
current DBE or SDB eligibility certification letters and/or affidavit; 
signed and dated borrower certification that all federal, state and 
local taxes are current; business tax returns; business financial 
statements; personal income tax returns; personal financial statements; 
schedule of work in progress; signed and dated copy of transportation-
related contracts; business debt schedule; income and cash flow 
projections; and evidence of bonding and insurance. It also includes, 
from the Participating Lender, the lender's internal credit approval 
memo and analysis and other third-party credit verifications obtained.
    (c) Application packages are submitted directly to a Participating 
Lender, which will perform its own credit review. The Participating 
Lender must initially approve or decline the loan based upon its 
internal analysis of the request. Loans approved by the Participating 
Lender are then forwarded to DOT OSDBU for its STLP eligibility review, 
independent credit review, and for presentation to the DOT OSDBU Loan 
Committee. All loan approvals shall require the final approval of the 
Director, or the Director's designee, for the issuance of a Government 
Loan Guarantee.



Sec.  22.43  Approval or denial.

    If a loan guarantee is approved by DOT OSDBU, a Guarantee Agreement, 
form DOT F 2314-1, will be issued to the Participating Lender. If a loan 
guarantee is declined by the Participating Lender, the Participating 
Lender is responsible for communicating the reasons for the decline to 
the applicant. The Participating Lender must notify the applicant, in 
writing, of the reasons for the decline; and a copy of this notification 
must be sent to DOT OSDBU. If a loan guarantee is declined by the DOT 
OSDBU, DOT OSDBU will be responsible for communicating the reasons for 
the decline to the applicant. The form is available at http://
www.osdbu.dot.gov/financial/docs/Loan_Guarantee_DOT_F_2314-1.pdf.

[[Page 158]]



Sec.  22.45  Allowable fees to borrowers.

    (a) Application Fees. The Participating Lender may charge the 
applicant a non-refundable loan application fee, as determined from time 
to time by DOT OSDBU, for each STLP loan application processed, whether 
a new loan request or a renewal request.
    (b) Reasonable Closing Expenses. Provided the Participating Lender 
charges similar fees to its non-STLP borrowers, the Participating Lender 
may collect reasonable closing expenses from the borrower, provided that 
full disclosure of such fees is made to the borrower prior to the loan 
closing date. These expenses include necessary out-of-pocket expenses to 
third parties such as filing and recordation fees, as well as loan 
closing document preparation fees.



                      Subpart E_Loan Administration



Sec.  22.51  Loan closings.

    (a) The Participating Lender must promptly close all STLP loans in 
accordance with the terms and conditions approved by DOT OSDBU in its 
Guarantee Agreement. The Participating Lender must report circumstances 
concerning any STLP loans not closed within a reasonable time period 
after DOT OSDBU approval.
    (b) The Participating Lender uses its own internal loan closing 
documents and must use standard banking practices and procedures to 
ensure proper execution of the debt and perfection of the collateral. 
The Participating Lender must forward copies of all executed closing 
documents and filings to DOT OSDBU within the time period specified in 
the cooperative agreement.



Sec.  22.53  Loan monitoring and servicing requirements.

    The Participating Lender must review STLP principal advance 
requests, process loan disbursements, and payments, and maintain contact 
with the borrower during the term of the loan. The Participating Lender 
must monitor the progress of the project being financed and the 
borrower's continued compliance with the terms and conditions of the 
loan. The Participating Lender must promptly report any material adverse 
change in the financial condition or business operations of the borrower 
to DOT OSDBU.



Sec.  22.57  Loan reporting requirements.

    The STLP is subject to the requirements of the Federal Credit Reform 
Act of 1990 (FCRA) that includes certain budgeting and accounting 
requirements for Federal credit programs. To fulfill the requirements of 
FCRA, the Participating Lender must provide DOT OSDBU prompt written 
notification of the activation date by the time period specified in the 
cooperative agreement. The Participating Lender must submit to OSDBU a 
form DOT F 2303-1 Bank Verification Loan Activation Form that indicates 
the date in which the loan has been activated/funded. The form is 
available at http://www.osdbu.dot.gov/financial/docs/
Loan_Activation_DOT_F_2303-1.pdf. The Participating Lender must also 
provide DOT OSDBU prompt written notification of the date the loan is 
repaid and closed. The Participating Lender must submit to OSDBU a form 
DOT F 2304-1 Bank Acknowledgement Loan Close-Out Form upon full 
repayment of the STLP loan, or upon expiration of the loan guarantee. 
The form is available at http://www.osdbu.dot.gov/financial/docs/
Loan_Close-Out_DOT_F_2304-1.pdf. To fulfill this requirement, the 
Participating Lender must also submit a monthly report to the DOT OSDBU 
detailing the previous month's activity for their STLP loans. The 
Participating Lender must submit form DOT F 2306-1 Pending Loan Status 
Report and form DOT F 2305-1 Guaranty Loan Status Report. These forms 
are available at http://www.osdbu.dot.gov/financial/docs/
Pending_Loan_DOT_F_2306-1.xls and http://www.osdbu.dot.gov/financial/
docs/Guaranty_Loan_DOT_F_2305-1.xls respectively.



Sec.  22.59  Loan modifications.

    Any modification to the terms of the DOT OSDBU guarantee agreement 
must have prior written approval of the Director, and executed in 
writing as an Addendum to the original guarantee agreement.

[[Page 159]]



Sec.  22.61  Loan guarantee extensions.

    An extension of the original loan guarantee may be requested, in 
writing, by the Participating Lender. The Participating lender must 
submit to OSDBU a form DOT F 2310-1 to request an extension of the 
original loan guarantee for a maximum period of ninety (90) days. The 
form is available at http://www.osdbu.dot.gov/financial/docs/
Loan_Extension_DOT_F_2310-1.pdf. The request must comply with the terms 
and conditions described in the guarantee agreement and with the STLP 
policies and procedures. All extension requests must be approved by the 
Director.



Sec.  22.63  Loan close outs.

    Upon full repayment of the STLP loan, or upon expiration of the loan 
guarantee, the Participating Lender must submit to OSDBU a form DOT F 
2304-1 Bank Acknowledgement Loan Close-Out Form. The form is available 
at http://www.osdbu.dot.gov/financial/docs/Loan_Close-Out_DOT_F_2304-
1.pdf.



Sec.  22.65  Subordination.

    DOT OSDBU must not be placed in a subordinate position to any other 
debt.



Sec.  22.67  Delinquent loans and loan defaults.

    (a) The Participating Lender must bring to the immediate attention 
of the Director any delinquent STLP loans. The Participating Lender and 
DOT OSDBU are jointly responsible for establishing collection procedures 
and must exercise due diligence with respect to collection of delinquent 
debt. The Participating Lender is responsible for initiating actions to 
recover such debt. DOT OSDBU must approve any compromise of a claim, 
resolution of a dispute, suspension or termination of collection action, 
or referral for litigation. A work-out solution will only be considered 
if it is expected to minimize the cost to the federal government in 
resolving repayment delinquencies and/or loan default. They must only be 
used when the borrower is likely to be able to repay the loan under the 
terms of the work-out, and if the cost of establishing the work-out plan 
is less than the costs of loan default and/or foreclosure.
    (b) In an appropriate situation, DOT OSDBU may authorize the 
Participating Lender to undertake legal action deemed necessary to 
collect delinquent loans and DOT will reimburse the Participating Lender 
on a pro rata basis in proportion to the loan guarantee percentage for 
the associated fees and costs, with prior authorization from the 
Director. Penalties and late fees are not eligible for reimbursement. 
Any legal action undertaken by the Participating Lender without OSDBU 
authorization will not be eligible for a pro rata basis reimbursement of 
the associated fees and costs. Net recoveries applicable to accrued 
interest must be applied on a pro rata basis in proportion to the 
formula used during the term of the loan.



Sec.  22.69  Claim process.

    After reasonable efforts have been exhausted to collect on a 
delinquent debt, the Participating Lender may demand in writing that DOT 
OSDBU honor its loan guarantee, provided however that the maximum 
liability of DOT OSDBU shall not at any time exceed the guaranteed 
amount. The borrower must be in default for no less than thirty (30) 
days, and the Participating Lender must have made written demand for 
payment from the borrower, in accordance with the guarantee agreement.



PART 23_PARTICIPATION OF DISADVANTAGED BUSINESS ENTERPRISE IN AIRPORT
CONCESSIONS--Table of Contents



                            Subpart A_General

Sec.
23.1 What are the objectives of this part?
23.3 What do the terms used in this part mean?
23.5 To whom does this part apply?
23.7 Program reviews.
23.9 What are the nondiscrimination and assurance requirements of this 
          part for recipients?
23.11 What compliance and enforcement provisions are used under this 
          part?
23.13 How does the Department issue guidance, interpretations, 
          exemptions, and waivers pertaining to this part?

[[Page 160]]

                        Subpart B_ACDBE programs

23.21 Who must submit an ACDBE program to FAA, and when?
23.23 What administrative provisions must be in a recipient's ACDBE 
          program?
23.25 What measures must recipients include in their ACDBE programs to 
          ensure nondiscriminatory participation of ACDBEs in 
          concessions?
23.27 What information does a recipient have to retain and report about 
          implementation of its ACDBE program?
23.29 What monitoring and compliance procedures must recipients follow?

                    Subpart C_Certification of ACDBEs

23.31 What certification standards and procedures do recipients use to 
          certify ACDBEs?
23.33 What size standards do recipients use to determine the eligibility 
          of ACDBEs?
23.35 What is the personal net worth standard for disadvantaged owners 
          of ACDBEs?
23.37 Are firms certified under 49 CFR part 26 eligible to participate 
          as ACDBEs?
23.39 What other certification requirements apply in the case of ACDBEs?

            Subpart D_Goals, Good Faith Efforts, and Counting

23.41 What is the basic overall goal requirement for recipients?
23.43 What are the consultation requirements in the development of 
          recipients' overall goals?
23.45 What are the requirements for submitting overall goal information 
          to the FAA?
23.47 What is the base for a recipient's goals for concessions other 
          than car rentals?
23.49 What is the base for a recipient's goals for car rentals?
23.51 How are a recipient's overall goals expressed and calculated?
23.53 How do car rental companies count ACDBE participation toward their 
          goals?
23.55 How do recipients count ACDBE participation toward goals for items 
          other than car rentals?
23.57 What happens if a recipient falls short of meeting its overall 
          goals?
23.59 What is the role of the statutory 10 percent goal in the ACDBE 
          program?
23.61 Can recipients use quotas or set-asides as part of their ACDBE 
          programs?

                       Subpart E_Other Provisions

23.71 Does a recipient have to change existing concession agreements?
23.73 What requirements apply to privately-owned or leased terminal 
          buildings?
23.75 Can recipients enter into long-term, exclusive agreements with 
          concessionaires?
23.77 Does this part preempt local requirements?
23.79 Does this part permit recipients to use local geographic 
          preferences?

Appendix A to Part 23--Uniform Report of ACDBE Participation

    Authority: 49 U.S.C. 47107; 42 U.S.C. 2000d; 49 U.S.C. 322; 
Executive Order 12138.

    Source: 70 FR 14508, Mar. 22, 2005, unless otherwise noted.



                            Subpart A_General



Sec.  23.1  What are the objectives of this part?

    This part seeks to achieve several objectives:
    (a) To ensure nondiscrimination in the award and administration of 
opportunities for concessions by airports receiving DOT financial 
assistance;
    (b) To create a level playing field on which ACDBEs can compete 
fairly for opportunities for concessions;
    (c) To ensure that the Department's ACDBE program is narrowly 
tailored in accordance with applicable law;
    (d) To ensure that only firms that fully meet this part's 
eligibility standards are permitted to participate as ACDBEs;
    (e) To help remove barriers to the participation of ACDBEs in 
opportunities for concessions at airports receiving DOT financial 
assistance; and
    (f) To provide appropriate flexibility to airports receiving DOT 
financial assistance in establishing and providing opportunities for 
ACDBEs.



Sec.  23.3  What do the terms used in this part mean?

    Administrator means the Administrator of the Federal Aviation 
Administration (FAA).
    Affiliation has the same meaning the term has in the Small Business 
Administration (SBA) regulations, 13 CFR part 121, except that the 
provisions of SBA regulations concerning affiliation in the context of 
joint ventures (13 CFR Sec.  121.103(f)) do not apply to this part.
    (1) Except as otherwise provided in 13 CFR part 121, concerns are 
affiliates of

[[Page 161]]

each other when, either directly or indirectly:
    (i) One concern controls or has the power to control the other; or
    (ii) A third party or parties controls or has the power to control 
both; or
    (iii) An identity of interest between or among parties exists such 
that affiliation may be found.
    (2) In determining whether affiliation exists, it is necessary to 
consider all appropriate factors, including common ownership, common 
management, and contractual relationships. Affiliates must be considered 
together in determining whether a concern meets small business size 
criteria and the statutory cap on the participation of firms in the 
ACDBE program.
    Airport Concession Disadvantaged Business Enterprise (ACDBE) means a 
concession that is a for-profit small business concern--
    (1) That is at least 51 percent owned by one or more individuals who 
are both socially and economically disadvantaged or, in the case of a 
corporation, in which 51 percent of the stock is owned by one or more 
such individuals; and
    (2) Whose management and daily business operations are controlled by 
one or more of the socially and economically disadvantaged individuals 
who own it.
    Alaska Native Corporation (ANC) means any Regional Corporation, 
Village Corporation, Urban Corporation, or Group Corporation organized 
under the laws of the State of Alaska in accordance with the Alaska 
Native Claims Settlement Act (43 U.S.C. 1601 et seq.)
    Car dealership means an establishment primarily engaged in the 
retail sale of new and/or used automobiles. Car dealerships frequently 
maintain repair departments and carry stocks of replacement parts, 
tires, batteries, and automotive accessories. Such establishments also 
frequently sell pickup trucks and vans at retail. In the standard 
industrial classification system, car dealerships are categorized in 
NAICS code 441110.
    Concession means one or more of the types of for-profit businesses 
listed in paragraph (1) or (2) of this definition:
    (1) A business, located on an airport subject to this part, that is 
engaged in the sale of consumer goods or services to the public under an 
agreement with the recipient, another concessionaire, or the owner or 
lessee of a terminal, if other than the recipient.
    (2) A business conducting one or more of the following covered 
activities, even if it does not maintain an office, store, or other 
business location on an airport subject to this part, as long as the 
activities take place on the airport: Management contracts and 
subcontracts, a web-based or other electronic business in a terminal or 
which passengers can access at the terminal, an advertising business 
that provides advertising displays or messages to the public on the 
airport, or a business that provides goods and services to 
concessionaires.

    Example to paragraph (2): A supplier of goods or a management 
contractor maintains its office or primary place of business off the 
airport. However the supplier provides goods to a retail establishment 
in the airport; or the management contractor operates the parking 
facility on the airport. These businesses are considered concessions for 
purposes of this part.

    (3) For purposes of this subpart, a business is not considered to be 
``located on the airport'' solely because it picks up and/or delivers 
customers under a permit, license, or other agreement. For example, 
providers of taxi, limousine, car rental, or hotel services are not 
considered to be located on the airport just because they send shuttles 
onto airport grounds to pick up passengers or drop them off. A business 
is considered to be ``located on the airport,'' however, if it has an 
on-airport facility. Such facilities include in the case of a taxi 
operator, a dispatcher; in the case of a limousine, a booth selling 
tickets to the public; in the case of a car rental company, a counter at 
which its services are sold to the public or a ready return facility; 
and in the case of a hotel operator, a hotel located anywhere on airport 
property.
    (4) Any business meeting the definition of concession is covered by 
this subpart, regardless of the name given to the agreement with the 
recipient, concessionaire, or airport terminal owner or lessee. A 
concession may be

[[Page 162]]

operated under various types of agreements, including but not limited to 
the following:
    (i) Leases.
    (ii) Subleases.
    (iii) Permits.
    (iv) Contracts or subcontracts.
    (v) Other instruments or arrangements.
    (5) The conduct of an aeronautical activity is not considered a 
concession for purposes of this subpart. Aeronautical activities include 
scheduled and non-scheduled air carriers, air taxis, air charters, and 
air couriers, in their normal passenger or freight carrying capacities; 
fixed base operators; flight schools; recreational service providers 
(e.g., sky-diving, parachute-jumping, flying guides); and air tour 
services.
    (6) Other examples of entities that do not meet the definition of a 
concession include flight kitchens and in-flight caterers servicing air 
carriers, government agencies, industrial plants, farm leases, 
individuals leasing hangar space, custodial and security contracts, 
telephone and electric service to the airport facility, holding 
companies, and skycap services under contract with an air carrier or 
airport.
    Concessionaire means a firm that owns and controls a concession or a 
portion of a concession.
    Department (DOT) means the U.S. Department of Transportation, 
including the Office of the Secretary and the Federal Aviation 
Administration (FAA).
    Direct ownership arrangement means a joint venture, partnership, 
sublease, licensee, franchise, or other arrangement in which a firm owns 
and controls a concession.
    Good faith efforts means efforts to achieve an ACDBE goal or other 
requirement of this part that, by their scope, intensity, and 
appropriateness to the objective, can reasonably be expected to meet the 
program requirement.
    Immediate family member means father, mother, husband, wife, son, 
daughter, brother, sister, grandmother, grandfather, grandson, 
granddaughter, mother-in-law, father-in-law, brother-in-law, sister-in-
law, or registered domestic partner.
    Indian tribe means any Indian tribe, band, nation, or other 
organized group or community of Indians, including any ANC, which is 
recognized as eligible for the special programs and services provided by 
the United States to Indians because of their status as Indians, or is 
recognized as such by the State in which the tribe, band, nation, group, 
or community resides. See definition of ``tribally-owned concern'' in 
this section.
    Joint venture means an association of an ACDBE firm and one or more 
other firms to carry out a single, for-profit business enterprise, for 
which the parties combine their property, capital, efforts, skills and 
knowledge, and in which the ACDBE is responsible for a distinct, clearly 
defined portion of the work of the contract and whose shares in the 
capital contribution, control, management, risks, and profits of the 
joint venture are commensurate with its ownership interest. Joint 
venture entities are not certified as ACDBEs.
    Large hub primary airport means a commercial service airport that 
has a number of passenger boardings equal to at least one percent of all 
passenger boardings in the United States.
    Management contract or subcontract means an agreement with a 
recipient or another management contractor under which a firm directs or 
operates one or more business activities, the assets of which are owned, 
leased, or otherwise controlled by the recipient. The managing agent 
generally receives, as compensation, a flat fee or a percentage of the 
gross receipts or profit from the business activity. For purposes of 
this subpart, the business activity operated or directed by the managing 
agent must be other than an aeronautical activity, be located at an 
airport subject to this subpart, and be engaged in the sale of consumer 
goods or provision of services to the public.
    Material amendment means a significant change to the basic rights or 
obligations of the parties to a concession agreement. Examples of 
material amendments include an extension to the term not provided for in 
the original agreement or a substantial increase in the scope of the 
concession privilege. Examples of nonmaterial amendments include a 
change in the name of

[[Page 163]]

the concessionaire or a change to the payment due dates.
    Medium hub primary airport means a commercial service airport that 
has a number of passenger boardings equal to at least 0.25 percent of 
all passenger boardings in the United States but less than one percent 
of such passenger boardings.
    Native Hawaiian means any individual whose ancestors were natives, 
prior to 1778, of the area that now comprises the State of Hawaii.
    Native Hawaiian Organization means any community service 
organization serving Native Hawaiians in the State of Hawaii that is a 
not-for-profit organization chartered by the State of Hawaii, and is 
controlled by Native Hawaiians
    Noncompliance means that a recipient has not correctly implemented 
the requirements of this part.
    Nonhub primary airport means a commercial service airport that has 
more than 10,000 passenger boardings each year but less than 0.05 
percent of all passenger boardings in the United States.
    Part 26 means 49 CFR part 26, the Department of Transportation's 
disadvantaged business enterprise regulation for DOT-assisted contracts.
    Personal net worth means the net value of the assets of an 
individual remaining after total liabilities are deducted. An 
individual's personal net worth (PNW) does not include the following:
    (1) The individual's ownership interest in an ACDBE firm or a firm 
that is applying for ACDBE certification; (2) The individual's equity in 
his or her primary place of residence; and (3) Other assets that the 
individual can document are necessary to obtain financing or a franchise 
agreement for the initiation or expansion of his or her ACDBE firm (or 
have in fact been encumbered to support existing financing for the 
individual's ACDBE business) to a maximum of $3 million. The 
effectiveness of this paragraph (3) of this definition is suspended with 
respect to any application for ACDBE certification made or any financing 
or franchise agreement obtained after June 20, 2012.
    Primary airport means a commercial service airport that the 
Secretary determines to have more than 10,000 passengers enplaned 
annually.
    Primary industry classification means the North American Industrial 
Classification System (NAICS) code designation that best describes the 
primary business of a firm. The NAICS Manual is available through the 
National Technical Information Service (NTIS) of the U.S. Department of 
Commerce (Springfield, VA, 22261). NTIS also makes materials available 
through its Web site (http://www.ntis.gov/naics).
    Primary recipient means a recipient to which DOT financial 
assistance is extended through the programs of the FAA and which passes 
some or all of it on to another recipient.
    Principal place of business means the business location where the 
individuals who manage the firm's day-to-day operations spend most 
working hours and where top management's business records are kept. If 
the offices from which management is directed and where business records 
are kept are in different locations, the recipient will determine the 
principal place of business for ACDBE program purposes.
    Race-conscious means a measure or program that is focused 
specifically on assisting only ACDBEs, including women-owned ACDBEs. For 
the purposes of this part, race-conscious measures include gender-
conscious measures.
    Race-neutral means a measure or program that is, or can be, used to 
assist all small businesses, without making distinctions or 
classifications on the basis of race or gender.
    Secretary means the Secretary of Transportation or his/her designee.
    Set-aside means a contracting practice restricting eligibility for 
the competitive award of a contract solely to ACDBE firms.
    Small Business Administration or SBA means the United States Small 
Business Administration.
    Small business concern means a for profit business that does not 
exceed the size standards of Sec.  23.33 of this part.
    Small hub airport means a publicly owned commercial service airport 
that has a number of passenger boardings

[[Page 164]]

equal to at least 0.05 percent of all passenger boardings in the United 
States but less than 0.25 percent of such passenger boardings.
    Socially and economically disadvantaged individual means any 
individual who is a citizen (or lawfully admitted permanent resident) of 
the United States and who is--
    (1) Any individual determined by a recipient to be a socially and 
economically disadvantaged individual on a case-by-case basis.
    (2) Any individual in the following groups, members of which are 
rebuttably presumed to be socially and economically disadvantaged:
    (i) ``Black Americans,'' which includes persons having origins in 
any of the Black racial groups of Africa;
    (ii) ``Hispanic Americans,'' which includes persons of Mexican, 
Puerto Rican, Cuban, Dominican, Central or South American, or other 
Spanish or Portuguese culture or origin, regardless of race;
    (iii) ``Native Americans,'' which includes persons who are American 
Indians, Eskimos, Aleuts, or Native Hawaiians;
    (iv) ``Asian-Pacific Americans,'' which includes persons whose 
origins are from Japan, China, Taiwan, Korea, Burma (Myanmar), Vietnam, 
Laos, Cambodia (Kampuchea), Thailand, Malaysia, Indonesia, the 
Philippines, Brunei, Samoa, Guam, the U.S. Trust Territories of the 
Pacific Islands (Republic of Palau), the Commonwealth of the Northern 
Marianas Islands, Macao, Fiji, Tonga, Kiribati, Juvalu, Nauru, Federated 
States of Micronesia, or Hong Kong;
    (v) ``Subcontinent Asian Americans,'' which includes persons whose 
origins are from India, Pakistan, Bangladesh, Bhutan, the Maldives 
Islands, Nepal or Sri Lanka;
    (vi) Women;
    (vii) Any additional groups whose members are designated as socially 
and economically disadvantaged by the SBA, at such time as the SBA 
designation becomes effective.
    Recipient means any entity, public or private, to which DOT 
financial assistance is extended, whether directly or through another 
recipient, through the programs of the FAA.
    Tribally-owned concern means any concern at least 51 percent owned 
by an Indian tribe as defined in this section.
    You refers to a recipient, unless a statement in the text of this 
part or the context requires otherwise (i.e., ``You must do XYZ'' means 
that recipients must do XYZ).

[70 FR 14508, Mar. 22, 2005, as amended at 72 FR 15616, Apr. 2, 2007; 77 
FR 36931, June 20, 2012]



Sec.  23.5  To whom does this part apply?

    If you are a recipient that has received a grant for airport 
development at any time after January 1988 that was authorized under 
Title 49 of the United States Code, this part applies to you.



Sec.  23.7  Program reviews.

    In 2010, and thereafter at the discretion of the Secretary, the 
Department will initiate a review of the ACDBE program to determine 
what, if any, modifications should be made to this part.

[75 FR 16358, Apr. 1, 2010]



Sec.  23.9  What are the nondiscrimination and assurance requirements
of this part for recipients?

    (a) As a recipient, you must meet the non-discrimination 
requirements provided in part 26, Sec.  26.7 with respect to the award 
and performance of any concession agreement, management contract or 
subcontract, purchase or lease agreement, or other agreement covered by 
this subpart.
    (b) You must also take all necessary and reasonable steps to ensure 
nondiscrimination in the award and administration of contracts and 
agreements covered by this part.
    (c) You must include the following assurances in all concession 
agreements and management contracts you execute with any firm after 
April 21, 2005:
    (1) ``This agreement is subject to the requirements of the U.S. 
Department of Transportation's regulations, 49 CFR part 23. The 
concessionaire or contractor agrees that it will not discriminate 
against any business owner because of the owner's race, color, national 
origin, or sex in connection with

[[Page 165]]

the award or performance of any concession agreement, management 
contract, or subcontract, purchase or lease agreement, or other 
agreement covered by 49 CFR part 23.
    (2) ``The concessionaire or contractor agrees to include the above 
statements in any subsequent concession agreement or contract covered by 
49 CFR part 23, that it enters and cause those businesses to similarly 
include the statements in further agreements.''



Sec.  23.11  What compliance and enforcement provisions are used under
this part?

    The compliance and enforcement provisions of part 26 (Sec. Sec.  
26.101 and 26.105 through 26.109) apply to this part in the same way 
that they apply to FAA recipients and programs under part 26.

[70 FR 14508, Mar. 22, 2005, as amended at 72 FR 15616, Apr. 2, 2007]



Sec.  23.13  How does the Department issue guidance, interpretations,
exemptions, and waivers pertaining to this part?

    (a) Only guidance and interpretations (including interpretations set 
forth in certification appeal decisions) consistent with this part 23 
and issued after April 21, 2005, express the official positions and 
views of the Department of Transportation or the Federal Aviation 
Administration.
    (b) The Secretary of Transportation, Office of the Secretary of 
Transportation, and the FAA may issue written interpretations of or 
written guidance concerning this part. Written interpretations and 
guidance are valid, and express the official positions and views of the 
Department of Transportation or the FAA, only if they are issued over 
the signature of the Secretary of Transportation or if they contain the 
following statement:

    The General Counsel of the Department of Transportation has reviewed 
this document and approved it as consistent with the language and intent 
of 49 CFR part 23.

    (c) You may apply for an exemption from any provision of this part. 
To apply, you must request the exemption in writing from the Office of 
the Secretary of Transportation or the FAA. The Secretary will grant the 
request only if it documents special or exceptional circumstances, not 
likely to be generally applicable, and not contemplated in connection 
with the rulemaking that established this part, that make your 
compliance with a specific provision of this part impractical. You must 
agree to take any steps that the Department specifies to comply with the 
intent of the provision from which an exemption is granted. The 
Secretary will issue a written response to all exemption requests.
    (d) You can apply for a waiver of any provision of subpart B or D of 
this part including, but not limited to, any provisions regarding 
administrative requirements, overall goals, contract goals or good faith 
efforts. Program waivers are for the purpose of authorizing you to 
operate an ACDBE program that achieves the objectives of this part by 
means that may differ from one or more of the requirements of subpart B 
or D of this part. To receive a program waiver, you must follow these 
procedures:
    (1) You must apply through the FAA. The application must include a 
specific program proposal and address how you will meet the criteria of 
paragraph (d)(2) of this section. Before submitting your application, 
you must have had public participation in developing your proposal, 
including consultation with the ACDBE community and at least one public 
hearing. Your application must include a summary of the public 
participation process and the information gathered through it.
    (2) Your application must show that--
    (i) There is a reasonable basis to conclude that you could achieve a 
level of ACDBE participation consistent with the objectives of this part 
using different or innovative means other than those that are provided 
in subpart B or D of this part;
    (ii) Conditions at your airport are appropriate for implementing the 
proposal;
    (iii) Your proposal would prevent discrimination against any 
individual or group in access to concession opportunities or other 
benefits of the program; and
    (iv) Your proposal is consistent with applicable law and FAA program 
requirements.

[[Page 166]]

    (3) The FAA Administrator has the authority to approve your 
application. If the Administrator grants your application, you may 
administer your ACDBE program as provided in your proposal, subject to 
the following conditions:
    (i) ACDBE eligibility is determined as provided in subpart C of this 
part, and ACDBE participation is counted as provided in Sec. Sec.  23.53 
through 23.55.
    (ii) Your level of ACDBE participation continues to be consistent 
with the objectives of this part;
    (iii) There is a reasonable limitation on the duration of the your 
modified program; and
    (iv) Any other conditions the Administrator makes on the grant of 
the waiver.
    (4) The Administrator may end a program waiver at any time and 
require you to comply with this part's provisions. The Administrator may 
also extend the waiver, if he or she determines that all requirements of 
this section continue to be met. Any such extension shall be for no 
longer than period originally set for the duration of the program 
waiver.

[70 FR 14508, Mar. 22, 2005, as amended at 72 FR 15616, Apr. 2, 2007]



                        Subpart B_ACDBE Programs



Sec.  23.21  Who must submit an ACDBE program to FAA, and when?

    (a) Except as provided in paragraph (e) of this section, if you are 
a primary airport that has or was required to have a concessions DBE 
program prior to April 21, 2005, you must submit a revisesd ACDBE 
program meeting the requirements of this part to the appropriate FAA 
regional office for approval.
    (1) You must submit this revised program on the same schedule 
provided for your first submission of overall goals in Sec.  23.45(a) of 
this part.
    (2) Timely submission and FAA approval of your revised ACDBE program 
is a condition of eligibility for FAA financial assistance.
    (3) Until your new ACDBE program is submitted and approved, you must 
continue to implement your concessions DBE program that was in effect 
before the effective date of this amendment to part 23, except with 
respect to any provision that is contrary to this part.
    (b) If you are a primary airport that does not now have a DBE 
concessions program, and you apply for a grant of FAA funds for airport 
planning and development under 49 U.S.C. 47107 et seq., you must submit 
an ACDBE program to the FAA at the time of your application. Timely 
submission and FAA approval of your ACDBE program are conditions of 
eligibility for FAA financial assistance.
    (c) If you are the owner of more than one airport that is required 
to have an ACDBE program, you may implement one plan for all your 
locations. If you do so, you must establish a separate ACDBE goal for 
each location.
    (d) If you make any significant changes to your ACDBE program at any 
time, you must provide the amended program to the FAA for approval 
before implementing the changes.
    (e) If you are a non-primary airport, non-commercial service 
airport, a general aviation airport, reliever airport, or any other 
airport that does not have scheduled commercial service, you are not 
required to have an ACDBE program. However, you must take appropriate 
outreach steps to encourage available ACDBEs to participate as 
concessionaires whenever there is a concession opportunity.



Sec.  23.23  What administrative provisions must be in a recipient's 
ACDBE program?

    (a) If, as a recipient that must have an ACDBE program, the program 
must include provisions for a policy statement, liaison officer, and 
directory, as provided in part 26, Sec. Sec.  26.23, 26.25, and 26.31, 
as well as certification of ACDBEs as provided by Subpart C of this 
part. You must include a statement in your program committing you to 
operating your ACDBE program in a nondiscriminatory manner.
    (b) You may combine your provisions for implementing these 
requirements under this part and part 26 (e.g., a single policy 
statement can cover both Federally-assisted airport contracts and 
concessions; the same individual can act as the liaison officer for both 
part 23 and part 26 matters).

[[Page 167]]



Sec.  23.25  What measures must recipients include in their ACDBE 
programs to ensure nondiscriminatory participation of ACDBEs in
concessions?

    (a) You must include in your ACDBE program a narrative description 
of the types of measures you intend to make to ensure nondiscriminatory 
participation of ACDBEs in concession and other covered activities.
    (b) Your ACDBE program must provide for setting goals consistent 
with the requirements of Subpart D of this part.
    (c) Your ACDBE program must provide for seeking ACDBE participation 
in all types of concession activities, rather than concentrating 
participation in one category or a few categories to the exclusion of 
others.
    (d) Your ACDBE program must include race-neutral measures that you 
will take. You must maximize the use of race-neutral measures, obtaining 
as much as possible of the ACDBE participation needed to meet overall 
goals through such measures. These are responsibilities that you 
directly undertake as a recipient, in addition to the efforts that 
concessionaires make, to obtain ACDBE participation. The following are 
examples of race-neutral measures you can implement:
    (1) Locating and identifying ACDBEs and other small businesses who 
may be interested in participating as concessionaires under this part;
    (2) Notifying ACDBEs of concession opportunities and encouraging 
them to compete, when appropriate;
    (3) When practical, structuring concession activities so as to 
encourage and facilitate the participation of ACDBEs
    (4) Providing technical assistance to ACDBEs in overcoming 
limitations, such as inability to obtain bonding or financing;
    (5) Ensuring that competitors for concession opportunities are 
informed during pre-solicitation meetings about how the recipient's 
ACDBE program will affect the procurement process;
    (6) Providing information concerning the availability of ACDBE firms 
to competitors to assist them in obtaining ACDBE participation; and
    (7) Establishing a business development program (see part 26, Sec.  
26.35); technical assistance program; or taking other steps to foster 
ACDBE participation in concessions.
    (e) Your ACDBE program must also provide for the use of race-
conscious measures when race-neutral measures, standing alone, are not 
projected to be sufficient to meet an overall goal. The following are 
examples of race-conscious measures you can implement:
    (1) Establishing concession-specific goals for particular concession 
opportunities.
    (i) If the objective of the concession-specific goal is to obtain 
ACDBE participation through a direct ownership arrangement with a ACDBE, 
calculate the goal as a percentage of the total estimated annual gross 
receipts from the concession.
    (ii) If the goal applies to purchases and/or leases of goods and 
services, calculate the goal by dividing the estimated dollar value of 
such purchases and/or leases from ACDBEs by the total estimated dollar 
value of all purchases to be made by the concessionaire.
    (iii) To be eligible to be awarded the concession, competitors must 
make good faith efforts to meet this goal. A competitor may do so either 
by obtaining enough ACDBE participation to meet the goal or by 
documenting that it made sufficient good faith efforts to do so.
    (iv) The administrative procedures applicable to contract goals in 
part 26, Sec.  26.51-53, apply with respect to concession-specific 
goals.
    (2) Negotiation with a potential concessionaire to include ACDBE 
participation, through direct ownership arrangements or measures, in the 
operation of the concession.
    (3) With the prior approval of FAA, other methods that take a 
competitor's ability to provide ACDBE participation into account in 
awarding a concession.
    (f) Your ACDBE program must require businesses subject to ACDBE 
goals at the airport (except car rental companies) to make good faith 
efforts to explore all available options to meet goals, to the maximum 
extent practicable, through direct ownership arrangements with DBEs.

[[Page 168]]

    (g) As provided in Sec.  23.61 of this part, you must not use set-
asides and quotas as means of obtaining ACDBE participation.



Sec.  23.27  What information does a recipient have to retain and report
about implementation of its ACDBE program?

    (a) As a recipient, you must retain sufficient basic information 
about your program implementation, your certification of ACDBEs, and the 
award and performance of agreements and contracts to enable the FAA to 
determine your compliance with this part. You must retain this data for 
a minimum of three years following the end of the concession agreement 
or other covered contract.
    (b) Beginning March 1, 2006, you must submit an annual report on 
ACDBE participation using the form found in appendix A to this part. You 
must submit the report to the appropriate FAA Regional Civil Rights 
Office.



Sec.  23.29  What monitoring and compliance procedures must recipients
follow?

    As a recipient, you must implement appropriate mechanisms to ensure 
compliance with the requirements of this part by all participants in the 
program. You must include in your concession program the specific 
provisions to be inserted into concession agreements and management 
contracts setting forth the enforcement mechanisms and other means you 
use to ensure compliance. These provisions must include a monitoring and 
enforcement mechanism to verify that the work committed to ACDBEs is 
actually performed by the ACDBEs. This mechanism must include a written 
certification that you have reviewed records of all contracts, leases, 
joint venture agreements, or other concession-related agreements and 
monitored the work on-site at your airport for this purpose. The 
monitoring to which this paragraph refers may be conducted in 
conjunction with monitoring of concession performance for other 
purposes.

[77 FR 36931, June 20, 2012]



            Subpart C_Certification and Eligibility of ACDBEs



Sec.  23.31  What certification standards and procedures do recipients
use to certify ACDBEs?

    (a) As a recipient, you must use, except as provided in this 
subpart, the procedures and standards of part 26, Sec. Sec.  26.61-91 
for certification of ACDBEs to participate in your concessions program. 
Your ACDBE program must incorporate the use of these standards and 
procedures and must provide that certification decisions for ACDBEs will 
be made by the Unified Certification Program (UCP) in your state (see 
part 26, Sec.  26.81).
    (b) The UCP's directory of eligible DBEs must specify whether a firm 
is certified as a DBE for purposes of part 26, an ACDBE for purposes of 
part 23, or both.
    (c) As an airport or UCP, you must review the eligibility of 
currently certified ACDBE firms to make sure that they meet the 
eligibility standards of this part.
    (1) You must complete these reviews as soon as possible, but in no 
case later than April 21, 2006 or three years from the anniversary date 
of each firm's most recent certification, whichever is later.
    (2) You must direct all currently certified ACDBEs to submit to you 
by April 21, 2006, a personal net worth statement, a certification of 
disadvantage, and an affidavit of no change.



Sec.  23.33  What size standards do recipients use to determine the
eligibility of ACDBEs?

    (a) As a recipient, you must, except as provided in paragraph (b) of 
this section, treat a firm as a small business eligible to be certified 
as an ACDBE if its gross receipts, averaged over the firm's previous 
three fiscal years, do not exceed $56.42 million.
    (b) The following types of businesses have size standards that 
differ from the standard set forth in paragraph (a) of this section:
    (1) Banks and financial institutions: $1 billion in assets;
    (2) Car rental companies: $75.23 million average annual gross 
receipts over the firm's three previous fiscal years, as

[[Page 169]]

adjusted by the Department for inflation every two years from April 3, 
2009.
    (3) Pay telephones: 1,500 employees;
    (4) Automobile dealers: 350 employees.
    (c) The Department adjusts the numbers in paragraphs (a) and (b)(2) 
of this section using the Department of Commerce price deflators for 
purchases by State and local governments as the basis for this 
adjustment. The Department publishes a Federal Register document 
informing the public of each adjustment.

[77 FR 36931, June 20, 2012]



Sec.  23.35  What is the personal net worth standard for disadvantaged
owners of ACDBEs?

    The personal net worth standard used in determining eligibility for 
purposes of this part is $1.32 million. Any individual who has a 
personal net worth exceeding this amount is not a socially and 
economically disadvantaged individual for purposes of this part, even if 
the individual is a member of a group otherwise presumed to be 
disadvantaged.

[70 FR 14508, Mar. 22, 2005, as amended at 77 FR 36931, June 20, 2012]



Sec.  23.37  Are firms certified under 49 CFR part 26 eligible to 
participate as ACDBEs?

    (a) You must presume that a firm that is certified as a DBE under 
part 26 is eligible to participate as an ACDBE. By meeting the size, 
disadvantage (including personal net worth), ownership and control 
standards of part 26, the firm will have also met the eligibility 
standards for part 23.
    (b) However, before certifying such a firm, you must ensure that the 
disadvantaged owners of a DBE certified under part 26 are able to 
control the firm with respect to its activity in the concessions 
program. In addition, you are not required to certify a part 26 DBE as a 
part 23 ACDBE if the firm does not do work relevant to the airport's 
concessions program.



Sec.  23.39  What other certification requirements apply in the case
of ACDBEs?

    (a) The provisions of part 26, Sec. Sec.  26.83 (c)(2) through 
(c)(6) do not apply to certifications for purposes of this part. 
Instead, in determining whether a firm is an eligible ACDBE, you must 
take the following steps:
    (1) Obtain the resumes or work histories of the principal owners of 
the firm and personally interview these individuals;
    (2) Analyze the ownership of stock of the firm, if it is a 
corporation;
    (3) Analyze the bonding and financial capacity of the firm;
    (4) Determine the work history of the firm, including any concession 
contracts or other contracts it may have received;
    (5) Obtain or compile a list of the licenses of the firm and its key 
personnel to perform the concession contracts or other contracts it 
wishes to receive;
    (6) Obtain a statement from the firm of the type(s) of concession(s) 
it prefers to operate or the type(s) of other contract(s) it prefers to 
perform.
    (b) In reviewing the affidavit required by part 26, Sec.  26.83(j), 
you must ensure that the ACDBE firm meets the applicable size standard 
in Sec.  23.33.
    (c) For purposes of this part, the term prime contractor in part 26, 
Sec.  26.87(i) includes a firm holding a prime contract with an airport 
concessionaire to provide goods or services to the concessionaire or a 
firm holding a prime concession agreement with a recipient.
    (d) With respect to firms owned by Alaska Native Corporations 
(ANCs), the provisions of part 26, Sec.  26.73(i) do not apply under 
this part. The eligibility of ANC-owned firms for purposes of this part 
is governed by Sec.  26.73(h).
    (e) When you remove a concessionaire's eligibility after the 
concessionaire has entered a concession agreement, because the firm 
exceeded the small business size standard or because an owner has 
exceeded the personal net worth standard, and the firm in all other 
respects remains an eligible DBE, you may continue to count the 
concessionaire's participation toward DBE goals during the remainder of 
the current concession agreement. However, you must not count the 
concessionaire's participation toward DBE goals beyond the termination 
date for the concession agreement in effect at the time of the 
decertification (e.g., in

[[Page 170]]

a case where the agreement is renewed or extended, or an option for 
continued participation beyond the current term of the agreement is 
exercised).
    (f) When UCPs are established in a state (see part 26, Sec.  26.81), 
the UCP, rather than individual recipients, certifies firms for the 
ACDBE concession program.
    (g) You must use the Uniform Application Form found in appendix F to 
part 26. However, you must instruct applicants to take the following 
additional steps:
    (1) In the space available in section 2(B)(7) of the form, the 
applicant must state that it is applying for certification as an ACDBE.
    (2) With respect to section 4(C) of the form, the applicant must 
provide information on an attached page concerning the address/location, 
ownership/lease status, current value of property or lease, and fees/
lease payments paid to the airport.
    (3) The applicant need not complete section 4(I) and (J). However, 
the applicant must provide information on an attached page concerning 
any other airport concession businesses the applicant firm or any 
affiliate owns and/or operates, including name, location, type of 
concession, and start date of concession.
    (h) Car rental companies and private terminal owners or lessees are 
not authorized to certify firms as ACDBEs. As a car rental company or 
private terminal owner or lessee, you must obtain ACDBE participation 
from firms which a recipient or UCPs have certified as ACDBEs.
    (i) You must use the certification standards of this part to 
determine the ACDBE eligibility of firms that provide goods and services 
to concessionaires.



            Subpart D_Goals, Good Faith Efforts, and Counting



Sec.  23.41  What is the basic overall goal requirement for recipients?

    (a) If you are a recipient who must implement an ACDBE program, you 
must, except as provided in paragraph (b) of this section, establish two 
separate overall ACDBE goals. The first is for car rentals; the second 
is for concessions other than car rentals.
    (b) If your annual car rental concession revenues, averaged over the 
three-years preceding the date on which you are required to submit 
overall goals, do not exceed $200,000, you are not required to submit a 
car rental overall goal. If your annual revenues for concessions other 
than car rentals, averaged over the three years preceding the date on 
which you are required to submit overall goals, do not exceed $200,000, 
you are not required to submit a non-car rental overall goal.
    (c) Each overall goal must cover a three-year period. You must 
review your goals annually to make sure they continue to fit your 
circumstances appropriately. You must report to the FAA any significant 
adjustments that you make to your goal in the time before your next 
scheduled submission.
    (d) Your goals established under this part must provide for 
participation by all certified ACDBEs and may not be subdivided into 
group-specific goals.
    (e) If you fail to establish and implement goals as provided in this 
section, you are not in compliance with this part. If you establish and 
implement goals in a way different from that provided in this part, you 
are not in compliance with this part. If you fail to comply with this 
requirement, you are not eligible to receive FAA financial assistance.



Sec.  23.43  What are the consultation requirements in the development
of recipients' overall goals?

    (a) As a recipient, you must consult with stakeholders before 
submitting your overall goals to FAA.
    (b) Stakeholders with whom you must consult include, but are not 
limited to, minority and women's business groups, community 
organizations, trade associations representing concessionaires currently 
located at the airport, as well as existing concessionaires themselves, 
and other officials or organizations which could be expected to have 
information concerning the availability of disadvantaged businesses, the 
effects of discrimination on opportunities for ACDBEs, and the 
recipient's efforts to increase participation of ACDBEs.

[[Page 171]]



Sec.  23.45  What are the requirements for submitting overall goal 
information to the FAA?

    (a) You must submit your overall goals to the appropriate FAA 
Regional Civil Rights Office for approval. Your first set of overall 
goals meeting the requirements of this subpart are due on the following 
schedule:
    (1) If you are a large or medium hub primary airport on April 21, 
2005, by January 1, 2006. You must make your next submissions by October 
1, 2008.
    (2) If you are a small hub primary airport on April 21, 2005, by 
October 1, 2006.
    (3) If you are a nonhub primary airport on April 21, 2005, by 
October 1, 2007.
    (b) You must then submit new goals every three years after the date 
that applies to you.
    (c) Timely submission and FAA approval of your overall goals is a 
condition of eligibility for FAA financial assistance.
    (d) In the time before you make your first submission under 
paragraph (a) of this section, you must continue to use the overall 
goals that have been approved by the FAA before the effective date of 
this part.
    (e) Your overall goal submission must include a description of the 
method used to calculate your goals and the data you relied on. You must 
``show your work'' to enable the FAA to understand how you concluded 
your goals were appropriate. This means that you must provide to the FAA 
the data, calculations, assumptions, and reasoning used in establishing 
your goals.
    (f) Your submission must include your projection of the portions of 
your overall goals you propose to meet through use of race-neutral and 
race-conscious means, respectively, and the basis for making this 
projection (see Sec.  23.51(d)(5))
    (g) FAA may approve or disapprove the way you calculated your goal, 
including your race-neutral/race-conscious ``split,'' as part of its 
review of your plan or goal submission. Except as provided in paragraph 
(h) of this section, the FAA does not approve or disapprove the goal 
itself (i.e., the number).
    (h) If the FAA determines that your goals have not been correctly 
calculated or the justification is inadequate, the FAA may, after 
consulting with you, adjust your overall goal or race-conscious/race-
neutral ``split.'' The adjusted goal represents the FAA's determination 
of an appropriate overall goal for ACDBE participation in the 
recipient's concession program, based on relevant data and analysis. The 
adjusted goal is binding on you.
    (i) If a new concession opportunity, the estimated average annual 
gross revenues of which are anticipated to be $200,000 or greater, 
arises at a time that falls between normal submission dates for overall 
goals, you must submit an appropriate adjustment to your overall goal to 
the FAA for approval no later than 90 days before issuing the 
solicitation for the new concession opportunity.

[70 FR 14508, Mar. 22, 2005, as amended at 77 FR 36931, June 20, 2012]



Sec.  23.47  What is the base for a recipient's goal for concessions 
other than car rentals?

    (a) As a recipient, the base for your goal includes the total gross 
receipts of concessions, except as otherwise provided in this section.
    (b) This base does not include the gross receipts of car rental 
operations.
    (c) The dollar amount of a management contract or subcontract with a 
non-ACDBE and the gross receipts of business activities to which a 
management or subcontract with a non-ACDBE pertains are not added to 
this base.
    (d) This base does not include any portion of a firm's estimated 
gross receipts that will not be generated from a concession.

    Example to paragraph (d): A firm operates a restaurant in the 
airport terminal which serves the traveling public and under the same 
lease agreement, provides in-flight catering service to air carriers. 
The projected gross receipts from the restaurant are included in the 
overall goal calculation, while the gross receipts to be earned by the 
in-flight catering services are not.

[[Page 172]]



Sec.  23.49  What is the base for a recipient's goal for car rentals?

    Except in the case where you use the alternative goal approach of 
Sec.  23.51(c)(5)(ii), the base for your goal is the total gross 
receipts of car rental operations at your airport. You do not include 
gross receipts of other concessions in this base.



Sec.  23.51  How are a recipient's overall goals expressed and calculated?

    (a) Your objective in setting a goal is to estimate the percentage 
of the base calculated under Sec. Sec.  23.47-23.49 that would be 
performed by ACDBEs in the absence of discrimination and its effects.
    (1) This percentage is the estimated ACDBE participation that would 
occur if there were a ``level playing field'' for firms to work as 
concessionaires for your airport.
    (2) In conducting this goal setting process, you are determining the 
extent, if any, to which the firms in your market area have suffered 
discrimination or its effects in connection with concession 
opportunities or related business opportunities.
    (3) You must complete the goal-setting process separately for each 
of the two overall goals identified in Sec.  23.41 of this part.
    (b)(1) Each overall concessions goal must be based on demonstrable 
evidence of the availability of ready, willing and able ACDBEs relative 
to all businesses ready, willing and able to participate in your ACDBE 
program (hereafter, the ``relative availability of ACDBEs'').
    (2) You cannot simply rely on the 10 percent national aspirational 
goal, your previous overall goal, or past ACDBE participation rates in 
your program without reference to the relative availability of ACDBEs in 
your market.
    (3) Your market area is defined by the geographical area in which 
the substantial majority of firms which seek to do concessions business 
with the airport are located and the geographical area in which the 
firms which receive the substantial majority of concessions-related 
revenues are located. Your market area may be different for different 
types of concessions.
    (c) Step 1. You must begin your goal setting process by determining 
a base figure for the relative availability of ACDBEs. The following are 
examples of approaches that you may take toward determining a base 
figure. These examples are provided as a starting point for your goal 
setting process. Any percentage figure derived from one of these 
examples should be considered a basis from which you begin when 
examining the evidence available to you. These examples are not intended 
as an exhaustive list. Other methods or combinations of methods to 
determine a base figure may be used, subject to approval by the FAA.
    (1) Use DBE Directories and Census Bureau Data. Determine the number 
of ready, willing and able ACDBEs in your market area from your ACDBE 
directory. Using the Census Bureau's County Business Pattern (CBP) data 
base, determine the number of all ready, willing and able businesses 
available in your market area that perform work in the same NAICS codes. 
(Information about the CBP data base may be obtained from the Census 
Bureau at their Web site, http://www.census.gov/epcd/cbp/view/
cbpview.html.) Divide the number of ACDBEs by the number of all 
businesses to derive a base figure for the relative availability of 
ACDBEs in your market area.
    (2) Use an Active Participants List. Determine the number of ACDBEs 
that have participated or attempted to participate in your airport 
concessions program in previous years. Determine the number of all 
businesses that have participated or attempted to participate in your 
airport concession program in previous years. Divide the number of 
ACDBEs who have participated or attempted to participate by the number 
for all businesses to derive a base figure for the relative availability 
of ACDBEs in your market area.
    (3) Use data from a disparity study. Use a percentage figure derived 
from data in a valid, applicable disparity study.
    (4) Use the goal of another recipient. If another airport or other 
DOT recipient in the same, or substantially similar,

[[Page 173]]

market has set an overall goal in compliance with this rule, you may use 
that goal as a base figure for your goal.
    (5) Alternative methods. (i) You may use other methods to determine 
a base figure for your overall goal. Any methodology you choose must be 
based on demonstrable evidence of local market conditions and be 
designed to ultimately attain a goal that is rationally related to the 
relative availability of ACDBEs in your market area.
    (ii) In the case of a car rental goal, where it appears that all or 
most of the goal is likely to be met through the purchases by car rental 
companies of vehicles or other goods or services from ACDBEs, one 
permissible alternative is to structure the goal entirely in terms of 
purchases of goods and services. In this case, you would calculate your 
car rental overall goal by dividing the estimated dollar value of such 
purchases from ACDBEs by the total estimated dollar value of all 
purchases to be made by car rental companies.
    (d) Step 2. Once you have calculated a base figure, you must examine 
all relevant evidence reasonably available in your jurisdiction to 
determine what adjustment, if any, is needed to the base figure in order 
to arrive at your overall goal.
    (1) There are many types of evidence that must be considered when 
adjusting the base figure. These include, but are not limited to:
    (i) The current capacity of ACDBEs to perform work in your 
concessions program, as measured by the volume of work ACDBEs have 
performed in recent years; and
    (ii) Evidence from disparity studies conducted anywhere within your 
jurisdiction, to the extent it is not already accounted for in your base 
figure.
    (2) If your base figure is the goal of another recipient, you must 
adjust it for differences in your market area and your concessions 
program.
    (3) If available, you must consider evidence from related fields 
that affect the opportunities for ACDBEs to form, grow and compete. 
These include, but are not limited to:
    (i) Statistical disparities in the ability of ACDBEs to get the 
financing, bonding and insurance required to participate in your 
program;
    (ii) Data on employment, self-employment, education, training and 
union apprenticeship programs, to the extent you can relate it to the 
opportunities for ACDBEs to perform in your program.
    (4) If you attempt to make an adjustment to your base figure to 
account for the continuing effects of past discrimination, or the 
effects of an ongoing ACDBE program, the adjustment must be based on 
demonstrable evidence that is logically and directly related to the 
effect for which the adjustment is sought.
    (5) Among the information you submit with your overall goal (see 
23.45(e)), you must include description of the methodology you used to 
establish the goal, including your base figure and the evidence with 
which it was calculated, as well as the adjustments you made to the base 
figure and the evidence relied on for the adjustments. You should also 
include a summary listing of the relevant available evidence in your 
jurisdiction and an explanation of how you used that evidence to adjust 
your base figure. You must also include your projection of the portions 
of the overall goal you expect to meet through race-neutral and race-
conscious measures, respectively (see Sec. Sec.  26.51(c)).
    (e) You are not required to obtain prior FAA concurrence with your 
overall goal (i.e., with the number itself). However, if the FAA's 
review suggests that your overall goal has not been correctly 
calculated, or that your method for calculating goals is inadequate, the 
FAA may, after consulting with you, adjust your overall goal or require 
that you do so. The adjusted overall goal is binding on you.
    (f) If you need additional time to collect data or take other steps 
to develop an approach to setting overall goals, you may request the 
approval of the FAA Administrator for an interim goal and/or goal-
setting mechanism. Such a mechanism must:
    (1) Reflect the relative availability of ACDBEs in your local market 
area to the maximum extent feasible given the data available to you; and
    (2) Avoid imposing undue burdens on non-ACDBEs.

[[Page 174]]



Sec.  23.53  How do car rental companies count ACDBE participation toward 
their goals?

    (a) As a car rental company, you may, in meeting the goal the 
airport has set for you, include purchases or leases of vehicles from 
any vendor that is a certified ACDBE.
    (b) As a car rental company, if you choose to meet the goal the 
airport has set for you by including purchases or leases of vehicles 
from an ACDBE vendor, you must also submit to the recipient 
documentation of the good faith efforts you have made to obtain ACDBE 
participation from other ACDBE providers of goods and services.
    (c) While this part does not require you to obtain ACDBE 
participation through direct ownership arrangements, you may count such 
participation toward the goal the airport has set for you.
    (d) The following special rules apply to counting participation 
related to car rental operations:
    (1) Count the entire amount of the cost charged by an ACDBE for 
repairing vehicles, provided that it is reasonable and not excessive as 
compared with fees customarily allowed for similar services.
    (2) Count the entire amount of the fee or commission charged by a 
ACDBE to manage a car rental concession under an agreement with the 
concessionaire toward ACDBE goals, provided that it is reasonable and 
not excessive as compared with fees customarily allowed for similar 
services.
    (3) Do not count any portion of a fee paid by a manufacturer to a 
car dealership for reimbursement of work performed under the 
manufacturer's warranty.
    (e) For other goods and services, count participation toward ACDBE 
goals as provided in part 26, Sec.  26.55 and Sec.  23.55 of this part. 
In the event of any conflict between these two sections, Sec.  23.55 
controls.
    (f) If you have a national or regional contract, count a pro-rated 
share of the amount of that contract toward the goals of each airport 
covered by the contract. Use the proportion of your applicable gross 
receipts as the basis for making this pro-rated assignment of ACDBE 
participation.

    Example to paragraph (f): Car Rental Company X signs a regional 
contract with an ACDBE car dealer to supply cars to all five airports in 
a state. The five airports each account for 20 percent of X's gross 
receipts in the state. Twenty percent of the value of the cars purchased 
through the ACDBE car dealer would count toward the goal of each 
airport.



Sec.  23.55  How do recipients count ACDBE participation toward goals for
items other than car rentals?

    (a) You count only ACDBE participation that results from a 
commercially useful function. For purposes of this part, the term 
commercially useful function has the same meaning as in part 26, Sec.  
26.55(c), except that the requirements of Sec.  26.55(c)(3) do not apply 
to concessions.
    (b) Count the total dollar value of gross receipts an ACDBE earns 
under a concession agreement and the total dollar value of a management 
contract or subcontract with an ACDBE toward the goal. However, if the 
ACDBE enters into a subconcession agreement or subcontract with a non-
ACDBE, do not count any of the gross receipts earned by the non-ACDBE.
    (c) When an ACDBE performs as a subconcessionaire or subcontractor 
for a non-ACDBE, count only the portion of the gross receipts earned by 
the ACDBE under its subagreement.
    (d) When an ACDBE performs as a participant in a joint venture, 
count a portion of the gross receipts equal to the distinct, clearly 
defined portion of the work of the concession that the ACDBE performs 
with its own forces toward ACDBE goals.
    (e) Count the entire amount of fees or commissions charged by an 
ACDBE firm for a bona fide service, provided that, as the recipient, you 
determine this amount to be reasonable and not excessive as compared 
with fees customarily allowed for similar services. Such services may 
include, but are not limited to, professional, technical, consultant, 
legal, security systems, advertising, building cleaning and maintenance, 
computer programming, or managerial.
    (f) Count 100 percent of the cost of goods obtained from an ACDBE 
manufacturer. For purposes of this part, the

[[Page 175]]

term manufacturer has the same meaning as in part 26, Sec.  
26.55(e)(1)(ii).
    (g) Count 100 percent of the cost of goods purchased or leased from 
a ACDBE regular dealer. For purposes of this part, the term ``regular 
dealer'' has the same meaning as in part 26, Sec.  26.55(e)(2)(ii).
    (h) Count credit toward ACDBE goals for goods purchased from an 
ACDBE which is neither a manufacturer nor a regular dealer as follows:
    (1) Count the entire amount of fees or commissions charged for 
assistance in the procurement of the goods, provided that this amount is 
reasonable and not excessive as compared with fees customarily allowed 
for similar services. Do not count any portion of the cost of the goods 
themselves.
    (2) Count the entire amount of fees or transportation charges for 
the delivery of goods required for a concession, provided that this 
amount is reasonable and not excessive as compared with fees customarily 
allowed for similar services. Do not count any portion of the cost of 
goods themselves.
    (i) If a firm has not been certified as an ACDBE in accordance with 
the standards in this part, do not count the firm's participation toward 
ACDBE goals.
    (j) Do not count the work performed or gross receipts earned by a 
firm after its eligibility has been removed toward ACDBE goals. However, 
if an ACDBE firm certified on April 21, 2005 is decertified because one 
or more of its disadvantaged owners do not meet the personal net worth 
criterion or the firm exceeds business size standards of this part 
during the performance of a contract or other agreement, the firm's 
participation may continue to be counted toward ACDBE goals for the 
remainder of the term of the contract or other agreement (but not 
extensions or renewals of such contracts or agreements).
    (k) Do not count costs incurred in connection with the renovation, 
repair, or construction of a concession facility (sometimes referred to 
as the ``build-out'').
    (l) Do not count the ACDBE participation of car rental companies 
toward your ACDBE achievements toward this goal.



Sec.  23.57  What happens if a recipient falls short of meeting its
overall goals?

    (a) You cannot be penalized, or treated by the Department as being 
in noncompliance with this part, simply because your ACDBE participation 
falls short of your overall goals. You can be penalized or treated as 
being in noncompliance only if you have failed to administer your ACDBE 
program in good faith.
    (b) If the awards and commitments shown on your Uniform Report of 
ACDBE Participation (found in Appendix A to this Part) at the end of any 
fiscal year are less than the overall goal applicable to that fiscal 
year, you must do the following in order to be regarded by the 
Department as implementing your ACDBE program in good faith:
    (1) Analyze in detail the reasons for the difference between the 
overall goal and your awards and commitments in that fiscal year;
    (2) Establish specific steps and milestones to correct the problems 
you have identified in your analysis and to enable you to meet fully 
your goal for the new fiscal year;
    (3) (i) If you are a CORE 30 airport or other airport designated by 
the FAA, you must submit, within 90 days of the end of the fiscal year, 
the analysis and corrective actions developed under paragraphs (b)(1) 
and (2) of this section to the FAA for approval. If the FAA approves the 
report, you will be regarded as complying with the requirements of this 
section for the remainder of the fiscal year.
    (ii) As an airport not meeting the criteria of paragraph (b)(3)(i) 
of this section, you must retain analysis and corrective actions in your 
records for three years and make it available to the FAA, on request, 
for their review.
    (4) The FAA may impose conditions on the recipient as part of its 
approval of the recipient's analysis and corrective actions including, 
but not limited to, modifications to your overall goal methodology, 
changes in your race-conscious/race-neutral split, or the introduction 
of additional race-neutral or race-conscious measures.
    (5) You may be regarded as being in noncompliance with this part, 
and

[[Page 176]]

therefore subject to the remedies in Sec.  23.11 of this part and other 
applicable regulations, for failing to implement your ACDBE program in 
good faith if any of the following things occur:
    (i) You do not submit your analysis and corrective actions to FAA in 
a timely manner as required under paragraph (b)(3) of this section;
    (ii) FAA disapproves your analysis or corrective actions; or
    (iii) You do not fully implement:
    (A) The corrective actions to which you have committed, or
    (B) Conditions that FAA has imposed following review of your 
analysis and corrective actions.
    (c) If information coming to the attention of FAA demonstrates that 
current trends make it unlikely that you, as an airport, will achieve 
ACDBE awards and commitments that would be necessary to allow you to 
meet your overall goal at the end of the fiscal year, FAA may require 
you to make further good faith efforts, such as modifying your race-
conscious/race-neutral split or introducing additional race-neutral or 
race-conscious measures for the remainder of the fiscal year.

[70 FR 14508, Mar. 22, 2005, as amended at 77 FR 36931, June 20, 2012]



Sec.  23.59  What is the role of the statutory 10 percent goal in the
ACDBE program?

    (a) The statute authorizing the ACDBE program provides that, except 
to the extent the Secretary determines otherwise, not less than 10 
percent of concession businesses are to be ACDBEs.
    (b) This 10 percent goal is an aspirational goal at the national 
level, which the Department uses as a tool in evaluating and monitoring 
DBEs' opportunities to participate in airport concessions.
    (c) The national 10 percent aspirational goal does not authorize or 
require recipients to set overall or concession-specific goals at the 10 
percent level, or any other particular level, or to take any special 
administrative steps if their goals are above or below 10 percent.



Sec.  23.61  Can recipients use quotas or set-asides as part of their
ACDBE programs?

    You must not use quotas or set-asides for ACDBE participation in 
your program.



                       Subpart E_Other Provisions



Sec.  23.71  Does a recipient have to change existing concession
agreements?

    Nothing in this part requires you to modify or abrogate an existing 
concession agreement (one executed before April 21, 2005) during its 
term. When an extension or option to renew such an agreement is 
exercised, or when a material amendment is made, you must assess 
potential for ACDBE participation and may, if permitted by the 
agreement, use any means authorized by this part to obtain a modified 
amount of ACDBE participation in the renewed or amended agreement.



Sec.  23.73  What requirements apply to privately-owned or leased 
terminal buildings?

    (a) If you are a recipient who is required to implement an ACDBE 
program on whose airport there is a privately-owned or leased terminal 
building that has concessions, or any portion of such a building, this 
section applies to you.
    (b) You must pass through the applicable requirements of this part 
to the private terminal owner or lessee via your agreement with the 
owner or lessee or by other means. You must ensure that the terminal 
owner or lessee complies with the requirements of this part.
    (c) If your airport is a primary airport, you must obtain from the 
terminal owner or lessee the goals and other elements of the ACDBE 
program required under this part. You must incorporate this information 
into your concession plan and submit it to the FAA in accordance with 
this part.
    (d) If the terminal building is at a non-primary commercial service 
airport or general aviation airport or reliever airport, you must ensure 
that the owner complies with the requirements in Sec.  23.21(e).

[[Page 177]]



Sec.  23.75  Can recipients enter into long-term, exclusive agreements
with concessionaires?

    (a) Except as provided in paragraph (b) of this section, you must 
not enter into long-term, exclusive agreements for concessions. For 
purposes of this section, a long-term agreement is one having a term 
longer than five years.
    (b) You may enter into a long-term, exclusive concession agreement 
only under the following conditions:
    (1) Special local circumstances exist that make it important to 
enter such agreement, and
    (2) The responsible FAA regional office approves your plan for 
meeting the standards of paragraph (c) of this section.
    (c) In order to obtain FAA approval of a long-term-exclusive 
concession agreement, you must submit the following information to the 
FAA regional office:
    (1) A description of the special local circumstances that warrant a 
long-term, exclusive agreement.
    (2) A copy of the draft and final leasing and subleasing or other 
agreements. This long-term, exclusive agreement must provide that:
    (i) A number of ACDBEs that reasonably reflects their availability 
in your market area, in the absence of discrimination, to do the types 
of work required will participate as concessionaires throughout the term 
of the agreement and account for at a percentage of the estimated annual 
gross receipts equivalent to a level set in accordance with Sec. Sec.  
23.47 through 23.49 of this part.
    (ii) You will review the extent of ACDBE participation before the 
exercise of each renewal option to consider whether an increase or 
decrease in ACDBE participation is warranted.
    (iii) An ACDBE concessionaire that is unable to perform successfully 
will be replaced by another ACDBE concessionaire, if the remaining term 
of the agreement makes this feasible. In the event that such action is 
not feasible, you will require the concessionaire to make good faith 
efforts during the remaining term of the agreement to encourage ACDBEs 
to compete for the purchases and/or leases of goods and services to be 
made by the concessionaire.
    (3) Assurances that any ACDBE participant will be in an acceptable 
form, such as a sublease, joint venture, or partnership.
    (4) Documentation that ACDBE participants are properly certified.
    (5) A description of the type of business or businesses to be 
operated (e.g., location, storage and delivery space, ``back-of-the-
house facilities'' such as kitchens, window display space, advertising 
space, and other amenities that will increase the ACDBE's chance to 
succeed).
    (6) Information on the investment required on the part of the ACDBE 
and any unusual management or financial arrangements between the prime 
concessionaire and ACDBE.
    (7) Information on the estimated gross receipts and net profit to be 
earned by the ACDBE.



Sec.  23.77  Does this part preempt local requirements?

    (a) In the event that a State or local law, regulation, or policy 
differs from the requirements of this part, the recipient must, as a 
condition of remaining eligible to receive Federal financial assistance 
from the DOT, take such steps as may be necessary to comply with the 
requirements of this part.
    (b) You must clearly identify any State or local law, regulation, or 
policy pertaining to minority, women's, or disadvantaged business 
enterprise concerning airport concessions that adds to, goes beyond, or 
imposes more stringent requirements than the provisions of this part. 
FAA will determine whether such a law, regulation, or policy conflicts 
with this part, in which case the requirements of this part will govern.
    (c) If not deemed in conflict by the FAA, you must write and 
administer such a State or local law, policy, or regulation separately 
from the ACDBE program.
    (d) You must provide copies of any such provisions and the legal 
authority supporting them to the FAA with your ACDBE program submission. 
FAA will not approve an ACDBE program if there are such provisions that 
conflict with the provisions of this part.

[[Page 178]]

    (e) However, nothing in this part preempts any State or local law, 
regulation, or policy enacted by the governing body of a recipient, or 
the authority of any State or local government or recipient to adopt or 
enforce any law, regulation, or policy relating to ACDBEs, as long as 
the law, regulation, or policy does not conflict with this part.



Sec.  23.79  Does this part permit recipients to use local geographic
preferences?

    No. As a recipient you must not use a local geographic preference. 
For purposes of this section, a local geographic preference is any 
requirement that gives an ACDBE located in one place (e.g., your local 
area) an advantage over ACDBEs from other places in obtaining business 
as, or with, a concession at your airport.





    Sec. Appendix A to Part 23--Uniform Report of ACDBE Participation

         Instructions for Uniform Report of ACDBE Participation

    1. Insert name of airport receiving FAA financial assistance and AIP 
number.
    2. Provide the name and contact information (phone, fax, e-mail) for 
the person FAA should contact with questions about the report.
    3a. Provide the annual reporting period to which the report pertains 
(e.g., October 2005-September 2006).
    3b. Provide the date on which the report is submitted to FAA.
    4. This block and blocks 5 and 6 concern non-car rental goals and 
participation only. In this block, provide the overall non-car rental 
percentage goal and the race-conscious (RC) and race-neutral (RN) 
components of it. The RC and RN percentages should add up to the overall 
percentage goal.
    5. For purposes of this block and blocks 6, 8, and 9, the 
participation categories listed at the left of the block are the 
following: ``Prime Concessions'' are concessions who have a direct 
relationship with the airport (e.g., a company who has a lease agreement 
directly with the airport to operate a concession). A ``subconcession'' 
is a firm that has a sublease or other agreement with a prime 
concessionaire, rather than with the airport itself, to operate a 
concession at the airport. A ``management contract'' is an agreement 
between the airport and a firm to manage a portion of the airport's 
facilities or operations (e.g., manage the parking facilities). ``Goods/
services'' refers to those goods and services purchased by the airport 
itself or by concessionaires and management contractors from certified 
DBEs.
    Block 5 concerns all non-car rental concession activity covered by 
49 CFR part 23 during the reporting period, both new or continuing.
    In Column A, enter the total concession gross revenues for 
concessionaires (prime and sub) and purchases of goods and services 
(ACDBE and non-ACDBE combined) at the airport. In Column B, enter the 
number of lease agreements, contracts, etc. in effect or taking place 
during the reporting period in each participation category for all 
concessionaires and purchases of goods and services (ACDBE and non-ACDBE 
combined).
    Because, by statute, non-ACDBE management contracts do not count as 
part of the base for ACDBE goals, the cells for total management 
contract participation and ACDBE participation as a percentage of total 
management contracting dollars are not intended to be filled in blocks 
5, 6, 8, and 9.
    In Column C, enter the total gross revenues in each participation 
category (ACDBEs) only. In Column D, enter the number of lease 
agreements, contracts, etc., in effect or entered into during the 
reporting period in each participation category for all concessionaires 
and purchases of goods and services (ACDBEs only).
    Columns E and F are subsets of Column C: break out the total gross 
revenues listed in Column C into the portions that are attributable to 
race-conscious and race-neutral measures, respectively. Column G is a 
percentage calculation. It answers the question, what percentage of the 
numbers in Column A is represented by the corresponding numbers in 
Column C?
    6. The numbers in this Block concern only new non-car rental 
concession opportunities that arose during the current reporting period. 
In other words, the information requested in Block 6 is a subset of that 
requested in Block 5. Otherwise, this Block is filled out in the same 
way as Block 5.
    7. Blocks 7-9 concern car rental goals and participation. In Block 
7, provide the overall car rental percentage goal and the race-conscious 
(RC) and race-neutral (RN) components of it. The RC and RN percentages 
should add up to the overall percentage goal.
    8. Block 8 is parallel to Block 5, except that it is for car 
rentals. The instructions for filling it out are the same as for Block 
5.
    9. Block 9 is parallel to Block 6, except that it is for car 
rentals. The information requested in Block 9 is a subset of that 
requested in Block 8. The instructions for filling it out are the same 
as for Block 6.

[[Page 179]]

    10. Block 10 instructs recipients to bring forward the cumulative 
ACDBE participation figures from Blocks 5 and 8, breaking down these 
figures by race and gender categories. Participation by non-minority 
women-owned firms should be listed in the ``non-minority women'' column. 
Participation by firms owned by minority women should be listed in the 
appropriate minority group column. The ``other'' column should be used 
to reflect participation by individuals who are not a member of a 
presumptively disadvantaged group who have been found disadvantaged on a 
case-by-case basis.
    11. This block instructs recipients to attach five information items 
for each ACDBE firm participating in its program during the reporting 
period. If the firm's participation numbers are reflected in Blocks 5-6 
and/or 8-9, the requested information about that firm should be attached 
in response to this item.

                  Uniform Report of ACDBE Participation

    1. Name of Recipient and AIP Number:
    2. Contact Information:
    3a. Reporting Period:
    3b. Date of Report:
    4. Current Non-Car Rental ACDBE Goal: Race Conscious Goal ____% Race 
Neutral Goal ____% Overall Goal ____%

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                     A Total      B Total    C Total to  D Total to    E RC to     F RN to      G % of
         5. Non-car rental Cumulative ACDBE participation            dollars       number      ACDBEs      ACDBEs      ACDBEs      ACDBEs     dollars to
                                                                    (everyone)   (everyone)   (dollars)   (number)    (dollars)   (dollars)     ACDBEs
--------------------------------------------------------------------------------------------------------------------------------------------------------
Prime Concessions................................................
Subconcessions...................................................
Management Contracts.............................................     XXXXXXX      XXXXXXX   ..........  ..........  ..........  ..........      XXXXXX
Goods/Services...................................................
    Totals.......................................................
--------------------------------------------------------------------------------------------------------------------------------------------------------


--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                     A Total      B Total    C Total to  D Total to    E RC to     F RN to      G % of
      6. Non-Car rental New ACDBE participation this period          dollars       number      ACDBEs      ACDBEs      ACDBEs      ACDBEs     dollars to
                                                                    (everyone)   (everyone)   (dollars)   (number)    (dollars)   (dollars)     ACDBEs
--------------------------------------------------------------------------------------------------------------------------------------------------------
Prime Concessions................................................
Subconcessions...................................................
Management Contracts.............................................     XXXXXXX      XXXXXXX   ..........  ..........  ..........      XXXXXX  ...........
Goods/Services...................................................
    Totals.......................................................
--------------------------------------------------------------------------------------------------------------------------------------------------------

    7. Current Car Rental ACDBE Goal: Race Conscious Goal ____% Race 
Neutral Goal ____% Overall Goal ____%

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                     A Total      B Total    C Total to  D Total to    E RC to     F RN to      G % of
           8. Car rental Cumulative ACDBE participation              dollars       number      ACDBEs      ACDBEs      ACDBEs      ACDBEs     dollars to
                                                                    (everyone)   (everyone)   (dollars)   (number)    (dollars)   (dollars)     ACDBEs
--------------------------------------------------------------------------------------------------------------------------------------------------------
Prime Concessions................................................
Subconcessions...................................................
Goods/Services...................................................
    Totals.......................................................
--------------------------------------------------------------------------------------------------------------------------------------------------------


--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                     A Total      B Total    C Total to  D Total to    E RC to     F RN to      G % of
        9. Car rental New ACDBE participation this period            dollars       number      ACDBEs      ACDBEs      ACDBEs      ACDBEs     dollars to
                                                                    (everyone)   (everyone)   (dollars)   (number)    (dollars)   (dollars)     ACDBEs
--------------------------------------------------------------------------------------------------------------------------------------------------------
Prime Concessions................................................
Subconcessions...................................................
Goods/Services...................................................
    Totals.......................................................
--------------------------------------------------------------------------------------------------------------------------------------------------------


--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                  C Asian-    D Asian-                 F Non-
  10. Cumulative ACDBE participation by race/gender      A Black     B Hispanic    Pacific     Indian     E Native    minority     G Other     H Totals
                                                        Americans    Americans    Americans   Americans   Americans     Women
--------------------------------------------------------------------------------------------------------------------------------------------------------
Car Rental...........................................
Non-Car Rental.......................................
    Totals...........................................
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 180]]

    11. On an attachment, list the following information for each ACDBE 
firm participating in your program during the period of this report: (1) 
Firm name; (2) Type of business; (3) Beginning and expiration dates of 
agreement, including options to renew; (4) Dates that material 
amendments have been or will be made to agreement (if known); (5) 
Estimated gross receipts for the firm during this reporting period.



PART 24_UNIFORM RELOCATION ASSISTANCE AND REAL PROPERTY ACQUISITION FOR
FEDERAL AND FEDERALLY-ASSISTED PROGRAMS--Table of Contents



                            Subpart A_General

Sec.
24.1 Purpose.
24.2 Definitions and acronyms.
24.3 No duplication of payments.
24.4 Assurances, monitoring and corrective action.
24.5 Manner of notices.
24.6 Administration of jointly-funded projects.
24.7 Federal Agency waiver of regulations.
24.8 Compliance with other laws and regulations.
24.9 Recordkeeping and reports.
24.10 Appeals.

                   Subpart B_Real Property Acquisition

24.101 Applicability of acquisition requirements.
24.102 Basic acquisition policies.
24.103 Criteria for appraisals.
24.104 Review of appraisals.
24.105 Acquisition of tenant-owned improvements.
24.106 Expenses incidental to transfer of title to the Agency.
24.107 Certain litigation expenses.
24.108 Donations.

                Subpart C_General Relocation Requirements

24.201 Purpose.
24.202 Applicability.
24.203 Relocation notices.
24.204 Availability of comparable replacement dwelling before 
          displacement.
24.205 Relocation planning, advisory services, and coordination.
24.206 Eviction for cause.
24.207 General requirements claims for relocation payments.
24.208 Aliens not lawfully present in the United States.
24.209 Relocation payments not considered as income.

           Subpart D_Payments for Moving and Related Expenses

24.301 Payment for actual reasonable moving and related expenses.
24.302 Fixed payment for moving expenses--residential moves.
24.303 Related nonresidential eligible expenses.
24.304 Reestablishment expenses--nonresidential moves.
24.305 Fixed payment for moving expenses--nonresidential moves.
24.306 Discretionary utility relocation payments.

                 Subpart E_Replacement Housing Payments

24.401 Replacement housing payment for 180-day homeowner-occupants.
24.402 Replacement housing payment for 90-day occupants.
24.403 Additional rules governing replacement housing payments.
24.404 Replacement housing of last resort.

                         Subpart F_Mobile Homes

24.501 Applicability.
24.502 Replacement housing payment for 180-day mobile homeowner 
          displaced from a mobile home, and/or from the acquired mobile 
          home site.
24.503 Replacement housing payment for 90-day mobile home occupants.

                         Subpart G_Certification

24.601 Purpose.
24.602 Certification application.
24.603 Monitoring and corrective action.

Appendix A to Part 24--Additional Information
Appendix B to Part 24--Statistical Report Form

    Authority: 42 U.S.C. 4601 et seq.; 49 CFR 1.48(cc).

    Source: 70 FR 611, Jan. 4, 2005, unless otherwise noted.



                            Subpart A_General



Sec.  24.1  Purpose.

    The purpose of this part is to promulgate rules to implement the 
Uniform Relocation Assistance and Real Property Acquisition Policies Act 
of 1970, as amended (42 U.S.C. 4601 et seq.) (Uniform Act), in 
accordance with the following objectives:
    (a) To ensure that owners of real property to be acquired for 
Federal and federally-assisted projects are treated

[[Page 181]]

fairly and consistently, to encourage and expedite acquisition by 
agreements with such owners, to minimize litigation and relieve 
congestion in the courts, and to promote public confidence in Federal 
and federally-assisted land acquisition programs;
    (b) To ensure that persons displaced as a direct result of Federal 
or federally-assisted projects are treated fairly, consistently, and 
equitably so that such displaced persons will not suffer 
disproportionate injuries as a result of projects designed for the 
benefit of the public as a whole; and
    (c) To ensure that Agencies implement these regulations in a manner 
that is efficient and cost effective.



Sec.  24.2  Definitions and acronyms.

    (a) Definitions. Unless otherwise noted, the following terms used in 
this part shall be understood as defined in this section:
    (1) Agency. The term Agency means the Federal Agency, State, State 
Agency, or person that acquires real property or displaces a person.
    (i) Acquiring Agency. The term acquiring Agency means a State 
Agency, as defined in paragraph (a)(1)(iv) of this section, which has 
the authority to acquire property by eminent domain under State law, and 
a State Agency or person which does not have such authority.
    (ii) Displacing Agency. The term displacing Agency means any Federal 
Agency carrying out a program or project, and any State, State Agency, 
or person carrying out a program or project with Federal financial 
assistance, which causes a person to be a displaced person.
    (iii) Federal Agency. The term Federal Agency means any department, 
Agency, or instrumentality in the executive branch of the government, 
any wholly owned government corporation, the Architect of the Capitol, 
the Federal Reserve Banks and branches thereof, and any person who has 
the authority to acquire property by eminent domain under Federal law.
    (iv) State Agency. The term State Agency means any department, 
Agency or instrumentality of a State or of a political subdivision of a 
State, any department, Agency, or instrumentality of two or more States 
or of two or more political subdivisions of a State or States, and any 
person who has the authority to acquire property by eminent domain under 
State law.
    (2) Alien not lawfully present in the United States. The phrase 
``alien not lawfully present in the United States'' means an alien who 
is not ``lawfully present'' in the United States as defined in 8 CFR 
103.12 and includes:
    (i) An alien present in the United States who has not been admitted 
or paroled into the United States pursuant to the Immigration and 
Nationality Act (8 U.S.C. 1101 et seq.) and whose stay in the United 
States has not been authorized by the United States Attorney General; 
and,
    (ii) An alien who is present in the United States after the 
expiration of the period of stay authorized by the United States 
Attorney General or who otherwise violates the terms and conditions of 
admission, parole or authorization to stay in the United States.
    (3) Appraisal. The term appraisal means a written statement 
independently and impartially prepared by a qualified appraiser setting 
forth an opinion of defined value of an adequately described property as 
of a specific date, supported by the presentation and analysis of 
relevant market information.
    (4) Business. The term business means any lawful activity, except a 
farm operation, that is conducted:
    (i) Primarily for the purchase, sale, lease and/or rental of 
personal and/or real property, and/or for the manufacture, processing, 
and/or marketing of products, commodities, and/or any other personal 
property;
    (ii) Primarily for the sale of services to the public;
    (iii) Primarily for outdoor advertising display purposes, when the 
display must be moved as a result of the project; or
    (iv) By a nonprofit organization that has established its nonprofit 
status under applicable Federal or State law.
    (5) Citizen. The term citizen for purposes of this part includes 
both citizens of the United States and noncitizen nationals.

[[Page 182]]

    (6) Comparable replacement dwelling. The term comparable replacement 
dwelling means a dwelling which is:
    (i) Decent, safe and sanitary as described in paragraph 24.2(a)(8) 
of this section;
    (ii) Functionally equivalent to the displacement dwelling. The term 
functionally equivalent means that it performs the same function, and 
provides the same utility. While a comparable replacement dwelling need 
not possess every feature of the displacement dwelling, the principal 
features must be present. Generally, functional equivalency is an 
objective standard, reflecting the range of purposes for which the 
various physical features of a dwelling may be used. However, in 
determining whether a replacement dwelling is functionally equivalent to 
the displacement dwelling, the Agency may consider reasonable trade-offs 
for specific features when the replacement unit is equal to or better 
than the displacement dwelling (See appendix A, Sec.  24.2(a)(6));
    (iii) Adequate in size to accommodate the occupants;
    (iv) In an area not subject to unreasonable adverse environmental 
conditions;
    (v) In a location generally not less desirable than the location of 
the displaced person's dwelling with respect to public utilities and 
commercial and public facilities, and reasonably accessible to the 
person's place of employment;
    (vi) On a site that is typical in size for residential development 
with normal site improvements, including customary landscaping. The site 
need not include special improvements such as outbuildings, swimming 
pools, or greenhouses. (See also Sec.  24.403(a)(2));
    (vii) Currently available to the displaced person on the private 
market except as provided in paragraph (a)(6)(ix) of this section (See 
appendix A, Sec.  24.2(a)(6)(vii)); and
    (viii) Within the financial means of the displaced person:
    (A) A replacement dwelling purchased by a homeowner in occupancy at 
the displacement dwelling for at least 180 days prior to initiation of 
negotiations (180-day homeowner) is considered to be within the 
homeowner's financial means if the homeowner will receive the full price 
differential as described in Sec.  24.401(c), all increased mortgage 
interest costs as described at Sec.  24.401(d) and all incidental 
expenses as described at Sec.  24.401(e), plus any additional amount 
required to be paid under Sec.  24.404, Replacement housing of last 
resort.
    (B) A replacement dwelling rented by an eligible displaced person is 
considered to be within his or her financial means if, after receiving 
rental assistance under this part, the person's monthly rent and 
estimated average monthly utility costs for the replacement dwelling do 
not exceed the person's base monthly rental for the displacement 
dwelling as described at Sec.  24.402(b)(2).
    (C) For a displaced person who is not eligible to receive a 
replacement housing payment because of the person's failure to meet 
length-of-occupancy requirements, comparable replacement rental housing 
is considered to be within the person's financial means if an Agency 
pays that portion of the monthly housing costs of a replacement dwelling 
which exceeds the person's base monthly rent for the displacement 
dwelling as described in Sec.  24.402(b)(2). Such rental assistance must 
be paid under Sec.  24.404, Replacement housing of last resort.
    (ix) For a person receiving government housing assistance before 
displacement, a dwelling that may reflect similar government housing 
assistance. In such cases any requirements of the government housing 
assistance program relating to the size of the replacement dwelling 
shall apply. (See appendix A, Sec.  24.2(a)(6)(ix).)
    (7) Contribute materially. The term contribute materially means that 
during the 2 taxable years prior to the taxable year in which 
displacement occurs, or during such other period as the Agency 
determines to be more equitable, a business or farm operation:
    (i) Had average annual gross receipts of at least $5,000; or
    (ii) Had average annual net earnings of at least $1,000; or
    (iii) Contributed at least 33\1/3\ percent of the owner's or 
operator's average annual gross income from all sources.

[[Page 183]]

    (iv) If the application of the above criteria creates an inequity or 
hardship in any given case, the Agency may approve the use of other 
criteria as determined appropriate.
    (8) Decent, safe, and sanitary dwelling. The term decent, safe, and 
sanitary dwelling means a dwelling which meets local housing and 
occupancy codes. However, any of the following standards which are not 
met by the local code shall apply unless waived for good cause by the 
Federal Agency funding the project. The dwelling shall:
    (i) Be structurally sound, weather tight, and in good repair;
    (ii) Contain a safe electrical wiring system adequate for lighting 
and other devices;
    (iii) Contain a heating system capable of sustaining a healthful 
temperature (of approximately 70 degrees) for a displaced person, except 
in those areas where local climatic conditions do not require such a 
system;
    (iv) Be adequate in size with respect to the number of rooms and 
area of living space needed to accommodate the displaced person. The 
number of persons occupying each habitable room used for sleeping 
purposes shall not exceed that permitted by local housing codes or, in 
the absence of local codes, the policies of the displacing Agency. In 
addition, the displacing Agency shall follow the requirements for 
separate bedrooms for children of the opposite gender included in local 
housing codes or in the absence of local codes, the policies of such 
Agencies;
    (v) There shall be a separate, well lighted and ventilated bathroom 
that provides privacy to the user and contains a sink, bathtub or shower 
stall, and a toilet, all in good working order and properly connected to 
appropriate sources of water and to a sewage drainage system. In the 
case of a housekeeping dwelling, there shall be a kitchen area that 
contains a fully usable sink, properly connected to potable hot and cold 
water and to a sewage drainage system, and adequate space and utility 
service connections for a stove and refrigerator;
    (vi) Contains unobstructed egress to safe, open space at ground 
level; and
    (vii) For a displaced person with a disability, be free of any 
barriers which would preclude reasonable ingress, egress, or use of the 
dwelling by such displaced person. (See appendix A, Sec.  
24.2(a)(8)(vii).)
    (9) Displaced person. (i) General. The term displaced person means, 
except as provided in paragraph (a)(9)(ii) of this section, any person 
who moves from the real property or moves his or her personal property 
from the real property. (This includes a person who occupies the real 
property prior to its acquisition, but who does not meet the length of 
occupancy requirements of the Uniform Act as described at Sec.  
24.401(a) and Sec.  24.402(a)):
    (A) As a direct result of a written notice of intent to acquire (see 
Sec.  24.203(d)), the initiation of negotiations for, or the acquisition 
of, such real property in whole or in part for a project;
    (B) As a direct result of rehabilitation or demolition for a 
project; or
    (C) As a direct result of a written notice of intent to acquire, or 
the acquisition, rehabilitation or demolition of, in whole or in part, 
other real property on which the person conducts a business or farm 
operation, for a project. However, eligibility for such person under 
this paragraph applies only for purposes of obtaining relocation 
assistance advisory services under Sec.  24.205(c), and moving expenses 
under Sec.  24.301, Sec.  24.302 or Sec.  24.303.
    (ii) Persons not displaced. The following is a nonexclusive listing 
of persons who do not qualify as displaced persons under this part:
    (A) A person who moves before the initiation of negotiations (see 
Sec.  24.403(d)), unless the Agency determines that the person was 
displaced as a direct result of the program or project;
    (B) A person who initially enters into occupancy of the property 
after the date of its acquisition for the project;
    (C) A person who has occupied the property for the purpose of 
obtaining assistance under the Uniform Act;
    (D) A person who is not required to relocate permanently as a direct 
result of a project. Such determination shall be made by the Agency in 
accordance with any guidelines established by the Federal Agency funding 
the project (See appendix A, Sec.  24.2(a)(9)(ii)(D));

[[Page 184]]

    (E) An owner-occupant who moves as a result of an acquisition of 
real property as described in Sec. Sec.  24.101(a)(2) or 24.101(b)(1) or 
(2), or as a result of the rehabilitation or demolition of the real 
property. (However, the displacement of a tenant as a direct result of 
any acquisition, rehabilitation or demolition for a Federal or 
federally-assisted project is subject to this part.);
    (F) A person whom the Agency determines is not displaced as a direct 
result of a partial acquisition;
    (G) A person who, after receiving a notice of relocation eligibility 
(described at Sec.  24.203(b)), is notified in writing that he or she 
will not be displaced for a project. Such written notification shall not 
be issued unless the person has not moved and the Agency agrees to 
reimburse the person for any expenses incurred to satisfy any binding 
contractual relocation obligations entered into after the effective date 
of the notice of relocation eligibility;
    (H) An owner-occupant who conveys his or her property, as described 
in Sec. Sec.  24.101(a)(2) or 24.101(b)(1) or (2), after being informed 
in writing that if a mutually satisfactory agreement on terms of the 
conveyance cannot be reached, the Agency will not acquire the property. 
In such cases, however, any resulting displacement of a tenant is 
subject to the regulations in this part;
    (I) A person who retains the right of use and occupancy of the real 
property for life following its acquisition by the Agency;
    (J) An owner who retains the right of use and occupancy of the real 
property for a fixed term after its acquisition by the Department of the 
Interior under Pub. L. 93-477, Appropriations for National Park System, 
or Pub. L. 93-303, Land and Water Conservation Fund, except that such 
owner remains a displaced person for purposes of subpart D of this part;
    (K) A person who is determined to be in unlawful occupancy prior to 
or after the initiation of negotiations, or a person who has been 
evicted for cause, under applicable law, as provided for in Sec.  
24.206. However, advisory assistance may be provided to unlawful 
occupants at the option of the Agency in order to facilitate the 
project;
    (L) A person who is not lawfully present in the United States and 
who has been determined to be ineligible for relocation assistance in 
accordance with Sec.  24.208; or
    (M) Tenants required to move as a result of the sale of their 
dwelling to a person using downpayment assistance provided under the 
American Dream Downpayment Initiative (ADDI) authorized by section 102 
of the American Dream Downpayment Act (Pub. L. 108-186; codified at 42 
U.S.C. 12821).
    (10) Dwelling. The term dwelling means the place of permanent or 
customary and usual residence of a person, according to local custom or 
law, including a single family house; a single family unit in a two-
family, multi-family, or multi-purpose property; a unit of a condominium 
or cooperative housing project; a non-housekeeping unit; a mobile home; 
or any other residential unit.
    (11) Dwelling site. The term dwelling site means a land area that is 
typical in size for similar dwellings located in the same neighborhood 
or rural area. (See appendix A, Sec.  24.2(a)(11).)
    (12) Farm operation. The term farm operation means any activity 
conducted solely or primarily for the production of one or more 
agricultural products or commodities, including timber, for sale or home 
use, and customarily producing such products or commodities in 
sufficient quantity to be capable of contributing materially to the 
operator's support.
    (13) Federal financial assistance. The term Federal financial 
assistance means a grant, loan, or contribution provided by the United 
States, except any Federal guarantee or insurance and any interest 
reduction payment to an individual in connection with the purchase and 
occupancy of a residence by that individual.
    (14) Household income. The term household income means total gross 
income received for a 12 month period from all sources (earned and 
unearned) including, but not limited to wages, salary, child support, 
alimony, unemployment benefits, workers compensation, social security, 
or the net income from a business. It does not include income received 
or earned by dependent children and full time students under

[[Page 185]]

18 years of age. (See appendix A, Sec.  24.2(a)(14) for examples of 
exclusions to income.)
    (15) Initiation of negotiations. Unless a different action is 
specified in applicable Federal program regulations, the term initiation 
of negotiations means the following:
    (i) Whenever the displacement results from the acquisition of the 
real property by a Federal Agency or State Agency, the initiation of 
negotiations means the delivery of the initial written offer of just 
compensation by the Agency to the owner or the owner's representative to 
purchase the real property for the project. However, if the Federal 
Agency or State Agency issues a notice of its intent to acquire the real 
property, and a person moves after that notice, but before delivery of 
the initial written purchase offer, the initiation of negotiations means 
the actual move of the person from the property.
    (ii) Whenever the displacement is caused by rehabilitation, 
demolition or privately undertaken acquisition of the real property (and 
there is no related acquisition by a Federal Agency or a State Agency), 
the initiation of negotiations means the notice to the person that he or 
she will be displaced by the project or, if there is no notice, the 
actual move of the person from the property.
    (iii) In the case of a permanent relocation to protect the public 
health and welfare, under the Comprehensive Environmental Response 
Compensation and Liability Act of 1980 (Pub. L. 96-510, or Superfund) 
(CERCLA) the initiation of negotiations means the formal announcement of 
such relocation or the Federal or federally-coordinated health advisory 
where the Federal Government later decides to conduct a permanent 
relocation.
    (iv) In the case of permanent relocation of a tenant as a result of 
an acquisition of real property described in Sec.  24.101(b)(1) through 
(5), the initiation of negotiations means the actions described in Sec.  
24.2(a)(15)(i) and (ii), except that such initiation of negotiations 
does not become effective, for purposes of establishing eligibility for 
relocation assistance for such tenants under this part, until there is a 
written agreement between the Agency and the owner to purchase the real 
property. (See appendix A, Sec.  24.2(a)(15)(iv)).
    (16) Lead Agency. The term Lead Agency means the Department of 
Transportation acting through the Federal Highway Administration.
    (17) Mobile home. The term mobile home includes manufactured homes 
and recreational vehicles used as residences. (See appendix A, Sec.  
24.2(a)(17)).
    (18) Mortgage. The term mortgage means such classes of liens as are 
commonly given to secure advances on, or the unpaid purchase price of, 
real property, under the laws of the State in which the real property is 
located, together with the credit instruments, if any, secured thereby.
    (19) Nonprofit organization. The term nonprofit organization means 
an organization that is incorporated under the applicable laws of a 
State as a nonprofit organization, and exempt from paying Federal income 
taxes under section 501 of the Internal Revenue Code (26 U.S.C. 501).
    (20) Owner of a dwelling. The term owner of a dwelling means a 
person who is considered to have met the requirement to own a dwelling 
if the person purchases or holds any of the following interests in real 
property:
    (i) Fee title, a life estate, a land contract, a 99 year lease, or a 
lease including any options for extension with at least 50 years to run 
from the date of acquisition; or
    (ii) An interest in a cooperative housing project which includes the 
right to occupy a dwelling; or
    (iii) A contract to purchase any of the interests or estates 
described in Sec.  24.2(a)(1)(i) or (ii) of this section; or
    (iv) Any other interest, including a partial interest, which in the 
judgment of the Agency warrants consideration as ownership.
    (21) Person. The term person means any individual, family, 
partnership, corporation, or association.
    (22) Program or project. The phrase program or project means any 
activity or series of activities undertaken by a Federal Agency or with 
Federal financial assistance received or anticipated in any phase of an 
undertaking in accordance with the Federal funding Agency guidelines.

[[Page 186]]

    (23) Salvage value. The term salvage value means the probable sale 
price of an item offered for sale to knowledgeable buyers with the 
requirement that it be removed from the property at a buyer's expense 
(i.e., not eligible for relocation assistance). This includes items for 
re-use as well as items with components that can be re-used or recycled 
when there is no reasonable prospect for sale except on this basis.
    (24) Small business. A small business is a business having not more 
than 500 employees working at the site being acquired or displaced by a 
program or project, which site is the location of economic activity. 
Sites occupied solely by outdoor advertising signs, displays, or devices 
do not qualify as a business for purposes of Sec.  24.304.
    (25) State. Any of the several States of the United States or the 
District of Columbia, the Commonwealth of Puerto Rico, any territory or 
possession of the United States, or a political subdivision of any of 
these jurisdictions.
    (26) Tenant. The term tenant means a person who has the temporary 
use and occupancy of real property owned by another.
    (27) Uneconomic remnant. The term uneconomic remnant means a parcel 
of real property in which the owner is left with an interest after the 
partial acquisition of the owner's property, and which the Agency has 
determined has little or no value or utility to the owner.
    (28) Uniform Act. The term Uniform Act means the Uniform Relocation 
Assistance and Real Property Acquisition Policies Act of 1970 (Pub. L. 
91-646, 84 Stat. 1894; 42 U.S.C. 4601 et seq.), and amendments thereto.
    (29) Unlawful occupant. A person who occupies without property 
right, title or payment of rent or a person legally evicted, with no 
legal rights to occupy a property under State law. An Agency, at its 
discretion, may consider such person to be in lawful occupancy.
    (30) Utility costs. The term utility costs means expenses for 
electricity, gas, other heating and cooking fuels, water and sewer.
    (31) Utility facility. The term utility facility means any electric, 
gas, water, steam power, or materials transmission or distribution 
system; any transportation system; any communications system, including 
cable television; and any fixtures, equipment, or other property 
associated with the operation, maintenance, or repair of any such 
system. A utility facility may be publicly, privately, or cooperatively 
owned.
    (32) Utility relocation. The term utility relocation means the 
adjustment of a utility facility required by the program or project 
undertaken by the displacing Agency. It includes removing and 
reinstalling the facility, including necessary temporary facilities; 
acquiring necessary right-of-way on a new location; moving, rearranging 
or changing the type of existing facilities; and taking any necessary 
safety and protective measures. It shall also mean constructing a 
replacement facility that has the functional equivalency of the existing 
facility and is necessary for the continued operation of the utility 
service, the project economy, or sequence of project construction.
    (33) Waiver valuation. The term waiver valuation means the valuation 
process used and the product produced when the Agency determines that an 
appraisal is not required, pursuant to Sec.  24.102(c)(2) appraisal 
waiver provisions.
    (b) Acronyms. The following acronyms are commonly used in the 
implementation of programs subject to this regulation:
    (1) BCIS. Bureau of Citizenship and Immigration Service.
    (2) FEMA. Federal Emergency Management Agency.
    (3) FHA. Federal Housing Administration.
    (4) FHWA. Federal Highway Administration.
    (5) FIRREA. Financial Institutions Reform, Recovery, and Enforcement 
Act of 1989.
    (6) HLR. Housing of last resort.
    (7) HUD. U.S. Department of Housing and Urban Development.
    (8) MIDP. Mortgage interest differential payment.
    (9) RHP. Replacement housing payment.
    (10) STURAA. Surface Transportation and Uniform Relocation Act 
Amendments of 1987.

[[Page 187]]

    (11) URA. Uniform Relocation Assistance and Real Property 
Acquisition Policies Act of 1970.
    (12) USDOT. U.S. Department of Transportation.
    (13) USPAP. Uniform Standards of Professional Appraisal Practice.



Sec.  24.3  No duplication of payments.

    No person shall receive any payment under this part if that person 
receives a payment under Federal, State, local law, or insurance 
proceeds which is determined by the Agency to have the same purpose and 
effect as such payment under this part. (See appendix A, Sec.  24.3).



Sec.  24.4  Assurances, monitoring and corrective action.

    (a) Assurances. (1) Before a Federal Agency may approve any grant 
to, or contract, or agreement with, a State Agency under which Federal 
financial assistance will be made available for a project which results 
in real property acquisition or displacement that is subject to the 
Uniform Act, the State Agency must provide appropriate assurances that 
it will comply with the Uniform Act and this part. A displacing Agency's 
assurances shall be in accordance with section 210 of the Uniform Act. 
An acquiring Agency's assurances shall be in accordance with section 305 
of the Uniform Act and must contain specific reference to any State law 
which the Agency believes provides an exception to Sec. Sec.  301 or 302 
of the Uniform Act. If, in the judgment of the Federal Agency, Uniform 
Act compliance will be served, a State Agency may provide these 
assurances at one time to cover all subsequent federally-assisted 
programs or projects. An Agency, which both acquires real property and 
displaces persons, may combine its section 210 and section 305 
assurances in one document.
    (2) If a Federal Agency or State Agency provides Federal financial 
assistance to a ``person'' causing displacement, such Federal or State 
Agency is responsible for ensuring compliance with the requirements of 
this part, notwithstanding the person's contractual obligation to the 
grantee to comply.
    (3) As an alternative to the assurance requirement described in 
paragraph (a)(1) of this section, a Federal Agency may provide Federal 
financial assistance to a State Agency after it has accepted a 
certification by such State Agency in accordance with the requirements 
in subpart G of this part.
    (b) Monitoring and corrective action. The Federal Agency will 
monitor compliance with this part, and the State Agency shall take 
whatever corrective action is necessary to comply with the Uniform Act 
and this part. The Federal Agency may also apply sanctions in accordance 
with applicable program regulations. (Also see Sec.  24.603, of this 
part).
    (c) Prevention of fraud, waste, and mismanagement. The Agency shall 
take appropriate measures to carry out this part in a manner that 
minimizes fraud, waste, and mismanagement.



Sec.  24.5  Manner of notices.

    Each notice which the Agency is required to provide to a property 
owner or occupant under this part, except the notice described at Sec.  
24.102(b), shall be personally served or sent by certified or registered 
first-class mail, return receipt requested, and documented in Agency 
files. Each notice shall be written in plain, understandable language. 
Persons who are unable to read and understand the notice must be 
provided with appropriate translation and counseling. Each notice shall 
indicate the name and telephone number of a person who may be contacted 
for answers to questions or other needed help.



Sec.  24.6  Administration of jointly-funded projects.

    Whenever two or more Federal Agencies provide financial assistance 
to an Agency or Agencies, other than a Federal Agency, to carry out 
functionally or geographically related activities, which will result in 
the acquisition of property or the displacement of a person, the Federal 
Agencies may by agreement designate one such Agency as the cognizant 
Federal Agency. In the unlikely event that agreement among the Agencies 
cannot be reached as to which Agency shall be the cognizant Federal 
Agency, then the Lead Agency shall designate one of such Agencies to 
assume the cognizant role.

[[Page 188]]

At a minimum, the agreement shall set forth the federally-assisted 
activities which are subject to its terms and cite any policies and 
procedures, in addition to this part, that are applicable to the 
activities under the agreement. Under the agreement, the cognizant 
Federal Agency shall assure that the project is in compliance with the 
provisions of the Uniform Act and this part. All federally-assisted 
activities under the agreement shall be deemed a project for the 
purposes of this part.



Sec.  24.7  Federal Agency waiver of regulations.

    The Federal Agency funding the project may waive any requirement in 
this part not required by law if it determines that the waiver does not 
reduce any assistance or protection provided to an owner or displaced 
person under this part. Any request for a waiver shall be justified on a 
case-by-case basis.



Sec.  24.8  Compliance with other laws and regulations.

    The implementation of this part must be in compliance with other 
applicable Federal laws and implementing regulations, including, but not 
limited to, the following:
    (a) Section I of the Civil Rights Act of 1866 (42 U.S.C. 1982 et 
seq.).
    (b) Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et 
seq.).
    (c) Title VIII of the Civil Rights Act of 1968 (42 U.S.C. 3601 et 
seq.), as amended.
    (d) The National Environmental Policy Act of 1969 (42 U.S.C. 4321 et 
seq.).
    (e) Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 790 et 
seq.).
    (f) The Flood Disaster Protection Act of 1973 (Pub. L. 93-234).
    (g) The Age Discrimination Act of 1975 (42 U.S.C. 6101 et seq.).
    (h) Executive Order 11063--Equal Opportunity and Housing, as amended 
by Executive Order 12892.
    (i) Executive Order 11246--Equal Employment Opportunity, as amended.
    (j) Executive Order 11625--Minority Business Enterprise.
    (k) Executive Orders 11988--Floodplain Management, and 11990--
Protection of Wetlands.
    (l) Executive Order 12250--Leadership and Coordination of Non-
Discrimination Laws.
    (m) Executive Order 12630--Governmental Actions and Interference 
with Constitutionally Protected Property Rights.
    (n) Robert T. Stafford Disaster Relief and Emergency Assistance Act, 
as amended (42 U.S.C. 5121 et seq.).
    (o) Executive Order 12892--Leadership and Coordination of Fair 
Housing in Federal Programs: Affirmatively Furthering Fair Housing 
(January 17, 1994).



Sec.  24.9  Recordkeeping and reports.

    (a) Records. The Agency shall maintain adequate records of its 
acquisition and displacement activities in sufficient detail to 
demonstrate compliance with this part. These records shall be retained 
for at least 3 years after each owner of a property and each person 
displaced from the property receives the final payment to which he or 
she is entitled under this part, or in accordance with the applicable 
regulations of the Federal funding Agency, whichever is later.
    (b) Confidentiality of records. Records maintained by an Agency in 
accordance with this part are confidential regarding their use as public 
information, unless applicable law provides otherwise.
    (c) Reports. The Agency shall submit a report of its real property 
acquisition and displacement activities under this part if required by 
the Federal Agency funding the project. A report will not be required 
more frequently than every 3 years, or as the Uniform Act provides, 
unless the Federal funding Agency shows good cause. The report shall be 
prepared and submitted using the format contained in appendix B of this 
part.



Sec.  24.10  Appeals.

    (a) General. The Agency shall promptly review appeals in accordance 
with the requirements of applicable law and this part.
    (b) Actions which may be appealed. Any aggrieved person may file a 
written appeal with the Agency in any case in which the person believes 
that the Agency has failed to properly consider the person's application 
for assistance

[[Page 189]]

under this part. Such assistance may include, but is not limited to, the 
person's eligibility for, or the amount of, a payment required under 
Sec.  24.106 or Sec.  24.107, or a relocation payment required under 
this part. The Agency shall consider a written appeal regardless of 
form.
    (c) Time limit for initiating appeal. The Agency may set a 
reasonable time limit for a person to file an appeal. The time limit 
shall not be less than 60 days after the person receives written 
notification of the Agency's determination on the person's claim.
    (d) Right to representation. A person has a right to be represented 
by legal counsel or other representative in connection with his or her 
appeal, but solely at the person's own expense.
    (e) Review of files by person making appeal. The Agency shall permit 
a person to inspect and copy all materials pertinent to his or her 
appeal, except materials which are classified as confidential by the 
Agency. The Agency may, however, impose reasonable conditions on the 
person's right to inspect, consistent with applicable laws.
    (f) Scope of review of appeal. In deciding an appeal, the Agency 
shall consider all pertinent justification and other material submitted 
by the person, and all other available information that is needed to 
ensure a fair and full review of the appeal.
    (g) Determination and notification after appeal. Promptly after 
receipt of all information submitted by a person in support of an 
appeal, the Agency shall make a written determination on the appeal, 
including an explanation of the basis on which the decision was made, 
and furnish the person a copy. If the full relief requested is not 
granted, the Agency shall advise the person of his or her right to seek 
judicial review of the Agency decision.
    (h) Agency official to review appeal. The Agency official conducting 
the review of the appeal shall be either the head of the Agency or his 
or her authorized designee. However, the official shall not have been 
directly involved in the action appealed.



                   Subpart B_Real Property Acquisition



Sec.  24.101  Applicability of acquisition requirements.

    (a) Direct Federal program or project. (1) The requirements of this 
subpart apply to any acquisition of real property for a direct Federal 
program or project, except acquisition for a program or project that is 
undertaken by the Tennessee Valley Authority or the Rural Utilities 
Service. (See appendix A, Sec.  24.101(a).)
    (2) If a Federal Agency (except for the Tennessee Valley Authority 
or the Rural Utilities Service) will not acquire a property because 
negotiations fail to result in an agreement, the owner of the property 
shall be so informed in writing. Owners of such properties are not 
displaced persons, (see Sec. Sec.  24.2(a)(9)(ii)(E) or (H)), and as 
such, are not entitled to relocation assistance benefits. However, 
tenants on such properties may be eligible for relocation assistance 
benefits. (See Sec.  24.2(a)(9)).
    (b) Programs and projects receiving Federal financial assistance. 
The requirements of this subpart apply to any acquisition of real 
property for programs and projects where there is Federal financial 
assistance in any part of project costs except for the acquisitions 
described in paragraphs (b)(1) through (5) of this section. The 
relocation assistance provisions in this part are applicable to any 
tenants that must move as a result of an acquisition described in 
paragraphs (b)(1) through (5) of this section. Such tenants are 
considered displaced persons. (See Sec.  24.2(a)(9).)
    (1) The requirements of Subpart B do not apply to acquisitions that 
meet all of the following conditions in paragraphs (b)(1)(i) through 
(iv):
    (i) No specific site or property needs to be acquired, although the 
Agency may limit its search for alternative sites to a general 
geographic area. Where an Agency wishes to purchase more than one site 
within a general geographic area on this basis, all owners are to be 
treated similarly. (See appendix A, Sec.  24.101(b)(1)(i).)

[[Page 190]]

    (ii) The property to be acquired is not part of an intended, 
planned, or designated project area where all or substantially all of 
the property within the area is to be acquired within specific time 
limits.
    (iii) The Agency will not acquire the property if negotiations fail 
to result in an amicable agreement, and the owner is so informed in 
writing.
    (iv) The Agency will inform the owner in writing of what it believes 
to be the market value of the property. (See appendix A, Sec.  
24.101(b)(1)(iv) and (2)(ii).)
    (2) Acquisitions for programs or projects undertaken by an Agency or 
person that receives Federal financial assistance but does not have 
authority to acquire property by eminent domain, provided that such 
Agency or person shall:
    (i) Prior to making an offer for the property, clearly advise the 
owner that it is unable to acquire the property if negotiations fail to 
result in an agreement; and
    (ii) Inform the owner in writing of what it believes to be the 
market value of the property. (See appendix A, Sec.  24.101(b)(1)(iv) 
and (2)(ii).)
    (3) The acquisition of real property from a Federal Agency, State, 
or State Agency, if the Agency desiring to make the purchase does not 
have authority to acquire the property through condemnation.
    (4) The acquisition of real property by a cooperative from a person 
who, as a condition of membership in the cooperative, has agreed to 
provide without charge any real property that is needed by the 
cooperative.
    (5) Acquisition for a program or project that receives Federal 
financial assistance from the Tennessee Valley Authority or the Rural 
Utilities Service.
    (c) Less-than-full-fee interest in real property. (1) The provisions 
of this subpart apply when acquiring fee title subject to retention of a 
life estate or a life use; to acquisition by leasing where the lease 
term, including option(s) for extension, is 50 years or more; and to the 
acquisition of permanent and/or temporary easements necessary for the 
project. However, the Agency may apply these regulations to any less-
than-full-fee acquisition that, in its judgment, should be covered.
    (2) The provisions of this subpart do not apply to temporary 
easements or permits needed solely to perform work intended exclusively 
for the benefit of the property owner, which work may not be done if 
agreement cannot be reached.
    (d) Federally-assisted projects. For projects receiving Federal 
financial assistance, the provisions of Sec. Sec.  24.102, 24.103, 
24.104, and 24.105 apply to the greatest extent practicable under State 
law. (See Sec.  24.4(a).)



Sec.  24.102  Basic acquisition policies.

    (a) Expeditious acquisition. The Agency shall make every reasonable 
effort to acquire the real property expeditiously by negotiation.
    (b) Notice to owner. As soon as feasible, the Agency shall notify 
the owner in writing of the Agency's interest in acquiring the real 
property and the basic protections provided to the owner by law and this 
part. (See Sec.  24.203.)
    (c) Appraisal, waiver thereof, and invitation to owner. (1) Before 
the initiation of negotiations the real property to be acquired shall be 
appraised, except as provided in Sec.  24.102 (c)(2), and the owner, or 
the owner's designated representative, shall be given an opportunity to 
accompany the appraiser during the appraiser's inspection of the 
property.
    (2) An appraisal is not required if:
    (i) The owner is donating the property and releases the Agency from 
its obligation to appraise the property; or
    (ii) The Agency determines that an appraisal is unnecessary because 
the valuation problem is uncomplicated and the anticipated value of the 
proposed acquisition is estimated at $10,000 or less, based on a review 
of available data.
    (A) When an appraisal is determined to be unnecessary, the Agency 
shall prepare a waiver valuation.
    (B) The person performing the waiver valuation must have sufficient 
understanding of the local real estate market to be qualified to make 
the waiver valuation.
    (C) The Federal Agency funding the project may approve exceeding the

[[Page 191]]

$10,000 threshold, up to a maximum of $25,000, if the Agency acquiring 
the real property offers the property owner the option of having the 
Agency appraise the property. If the property owner elects to have the 
Agency appraise the property, the Agency shall obtain an appraisal and 
not use procedures described in this paragraph. (See appendix A, Sec.  
24.102(c)(2).)
    (d) Establishment and offer of just compensation. Before the 
initiation of negotiations, the Agency shall establish an amount which 
it believes is just compensation for the real property. The amount shall 
not be less than the approved appraisal of the fair market value of the 
property, taking into account the value of allowable damages or benefits 
to any remaining property. An Agency official must establish the amount 
believed to be just compensation. (See Sec.  24.104.) Promptly 
thereafter, the Agency shall make a written offer to the owner to 
acquire the property for the full amount believed to be just 
compensation. (See appendix A, Sec.  24.102(d).)
    (e) Summary statement. Along with the initial written purchase 
offer, the owner shall be given a written statement of the basis for the 
offer of just compensation, which shall include:
    (1) A statement of the amount offered as just compensation. In the 
case of a partial acquisition, the compensation for the real property to 
be acquired and the compensation for damages, if any, to the remaining 
real property shall be separately stated.
    (2) A description and location identification of the real property 
and the interest in the real property to be acquired.
    (3) An identification of the buildings, structures, and other 
improvements (including removable building equipment and trade fixtures) 
which are included as part of the offer of just compensation. Where 
appropriate, the statement shall identify any other separately held 
ownership interest in the property, e.g., a tenant-owned improvement, 
and indicate that such interest is not covered by this offer.
    (f) Basic negotiation procedures. The Agency shall make all 
reasonable efforts to contact the owner or the owner's representative 
and discuss its offer to purchase the property, including the basis for 
the offer of just compensation and explain its acquisition policies and 
procedures, including its payment of incidental expenses in accordance 
with Sec.  24.106. The owner shall be given reasonable opportunity to 
consider the offer and present material which the owner believes is 
relevant to determining the value of the property and to suggest 
modification in the proposed terms and conditions of the purchase. The 
Agency shall consider the owner's presentation. (See appendix A, Sec.  
24.102(f).)
    (g) Updating offer of just compensation. If the information 
presented by the owner, or a material change in the character or 
condition of the property, indicates the need for new appraisal 
information, or if a significant delay has occurred since the time of 
the appraisal(s) of the property, the Agency shall have the appraisal(s) 
updated or obtain a new appraisal(s). If the latest appraisal 
information indicates that a change in the purchase offer is warranted, 
the Agency shall promptly reestablish just compensation and offer that 
amount to the owner in writing.
    (h) Coercive action. The Agency shall not advance the time of 
condemnation, or defer negotiations or condemnation or the deposit of 
funds with the court, or take any other coercive action in order to 
induce an agreement on the price to be paid for the property.
    (i) Administrative settlement. The purchase price for the property 
may exceed the amount offered as just compensation when reasonable 
efforts to negotiate an agreement at that amount have failed and an 
authorized Agency official approves such administrative settlement as 
being reasonable, prudent, and in the public interest. When Federal 
funds pay for or participate in acquisition costs, a written 
justification shall be prepared, which states what available 
information, including trial risks, supports such a settlement. (See 
appendix A, Sec.  24.102(i).)
    (j) Payment before taking possession. Before requiring the owner to 
surrender possession of the real property, the Agency shall pay the 
agreed purchase price to the owner, or in the case of a condemnation, 
deposit with the court, for the benefit of the owner, an

[[Page 192]]

amount not less than the Agency's approved appraisal of the fair market 
value of such property, or the court award of compensation in the 
condemnation proceeding for the property. In exceptional circumstances, 
with the prior approval of the owner, the Agency may obtain a right-of-
entry for construction purposes before making payment available to an 
owner. (See appendix A, Sec.  24.102(j).)
    (k) Uneconomic remnant. If the acquisition of only a portion of a 
property would leave the owner with an uneconomic remnant, the Agency 
shall offer to acquire the uneconomic remnant along with the portion of 
the property needed for the project. (See Sec.  24.2(a)(27).)
    (l) Inverse condemnation. If the Agency intends to acquire any 
interest in real property by exercise of the power of eminent domain, it 
shall institute formal condemnation proceedings and not intentionally 
make it necessary for the owner to institute legal proceedings to prove 
the fact of the taking of the real property.
    (m) Fair rental. If the Agency permits a former owner or tenant to 
occupy the real property after acquisition for a short term, or a period 
subject to termination by the Agency on short notice, the rent shall not 
exceed the fair market rent for such occupancy. (See appendix A, Sec.  
24.102(m).)
    (n) Conflict of interest. (1) The appraiser, review appraiser or 
person performing the waiver valuation shall not have any interest, 
direct or indirect, in the real property being valued for the Agency.
    Compensation for making an appraisal or waiver valuation shall not 
be based on the amount of the valuation estimate.
    (2) No person shall attempt to unduly influence or coerce an 
appraiser, review appraiser, or waiver valuation preparer regarding any 
valuation or other aspect of an appraisal, review or waiver valuation. 
Persons functioning as negotiators may not supervise or formally 
evaluate the performance of any appraiser or review appraiser performing 
appraisal or appraisal review work, except that, for a program or 
project receiving Federal financial assistance, the Federal funding 
Agency may waive this requirement if it determines it would create a 
hardship for the Agency.
    (3) An appraiser, review appraiser, or waiver valuation preparer 
making an appraisal, appraisal review or waiver valuation may be 
authorized by the Agency to act as a negotiator for real property for 
which that person has made an appraisal, appraisal review or waiver 
valuation only if the offer to acquire the property is $10,000, or less. 
(See appendix A, Sec.  24.102(n).)

[70 FR 611, Jan. 4, 2005, as amended at 70 FR 22611, May 2, 2005]



Sec.  24.103  Criteria for appraisals.

    (a) Appraisal requirements. This section sets forth the requirements 
for real property acquisition appraisals for Federal and federally-
assisted programs. Appraisals are to be prepared according to these 
requirements, which are intended to be consistent with the Uniform 
Standards of Professional Appraisal Practice (USPAP). \1\ (See appendix 
A, Sec.  24.103(a).) The Agency may have appraisal requirements that 
supplement these requirements, including, to the extent appropriate, the 
Uniform Appraisal Standards for Federal Land Acquisition (UASFLA). \2\
---------------------------------------------------------------------------

    \1\ Uniform Standards of Professional Appraisal Practice (USPAP). 
Published by The Appraisal Foundation, a nonprofit educational 
organization. Copies may be ordered from The Appraisal Foundation at the 
following URL: http://www.appraisalfoundation.org/htm/USPAP2004/toc.htm.
    \2\ The ``Uniform Appraisal Standards for Federal Land 
Acquisitions'' is published by the Interagency Land Acquisition 
Conference. It is a compendium of Federal eminent domain appraisal law, 
both case and statute, regulations and practices. It is available at 
http://www.usdoj.gov/enrd/land-ack/toc.htm or in soft cover format from 
the Appraisal Institute at http://www.appraisalinstitute.org/econom/
publications/Default.asp and select ``Legal/Regulatory'' or call 888-
570-4545.
---------------------------------------------------------------------------

    (1) The Agency acquiring real property has a legitimate role in 
contributing to the appraisal process, especially in developing the 
scope of work and defining the appraisal problem. The scope of work and 
development of an appraisal under these requirements depends on the 
complexity of the appraisal problem.

[[Page 193]]

    (2) The Agency has the responsibility to assure that the appraisals 
it obtains are relevant to its program needs, reflect established and 
commonly accepted Federal and federally-assisted program appraisal 
practice, and as a minimum, complies with the definition of appraisal in 
Sec.  24.2(a)(3) and the five following requirements: (See appendix A, 
Sec. Sec.  24.103 and 24.103(a).)
    (i) An adequate description of the physical characteristics of the 
property being appraised (and, in the case of a partial acquisition, an 
adequate description of the remaining property), including items 
identified as personal property, a statement of the known and observed 
encumbrances, if any, title information, location, zoning, present use, 
an analysis of highest and best use, and at least a 5-year sales history 
of the property. (See appendix A, Sec.  24.103(a)(1).)
    (ii) All relevant and reliable approaches to value consistent with 
established Federal and federally-assisted program appraisal practices. 
If the appraiser uses more than one approach, there shall be an analysis 
and reconciliation of approaches to value used that is sufficient to 
support the appraiser's opinion of value. (See appendix A, Sec.  
24.103(a).)
    (iii) A description of comparable sales, including a description of 
all relevant physical, legal, and economic factors such as parties to 
the transaction, source and method of financing, and verification by a 
party involved in the transaction.
    (iv) A statement of the value of the real property to be acquired 
and, for a partial acquisition, a statement of the value of the damages 
and benefits, if any, to the remaining real property, where appropriate.
    (v) The effective date of valuation, date of appraisal, signature, 
and certification of the appraiser.
    (b) Influence of the project on just compensation. The appraiser 
shall disregard any decrease or increase in the fair market value of the 
real property caused by the project for which the property is to be 
acquired, or by the likelihood that the property would be acquired for 
the project, other than that due to physical deterioration within the 
reasonable control of the owner. (See appendix A, Sec.  24.103(b).)
    (c) Owner retention of improvements. If the owner of a real property 
improvement is permitted to retain it for removal from the project site, 
the amount to be offered for the interest in the real property to be 
acquired shall be not less than the difference between the amount 
determined to be just compensation for the owner's entire interest in 
the real property and the salvage value (defined at Sec.  24.2(a)(24)) 
of the retained improvement.
    (d) Qualifications of appraisers and review appraisers. (1) The 
Agency shall establish criteria for determining the minimum 
qualifications and competency of appraisers and review appraisers. 
Qualifications shall be consistent with the scope of work for the 
assignment. The Agency shall review the experience, education, training, 
certification/licensing, designation(s) and other qualifications of 
appraisers, and review appraisers, and use only those determined by the 
Agency to be qualified. (See appendix A, Sec.  24.103(d)(1).)
    (2) If the Agency uses a contract (fee) appraiser to perform the 
appraisal, such appraiser shall be State licensed or certified in 
accordance with title XI of the Financial Institutions Reform, Recovery, 
and Enforcement Act of 1989 (FIRREA) (12 U.S.C. 3331 et seq.).

[70 FR 611, Jan. 4, 2005, as amended at 70 FR 22611, May 2, 2005]



Sec.  24.104  Review of appraisals.

    The Agency shall have an appraisal review process and, at a minimum:
    (a) A qualified review appraiser (see Sec.  24.103(d)(1) and 
appendix A, Sec.  24.104) shall examine the presentation and analysis of 
market information in all appraisals to assure that they meet the 
definition of appraisal found in 49 CFR 24.2(a)(3), appraisal 
requirements found in 49 CFR 24.103 and other applicable requirements, 
including, to the extent appropriate, the UASFLA, and support the 
appraiser's opinion of value. The level of review analysis depends on 
the complexity of the appraisal problem. As needed, the review appraiser 
shall, prior to acceptance, seek necessary

[[Page 194]]

corrections or revisions. The review appraiser shall identify each 
appraisal report as recommended (as the basis for the establishment of 
the amount believed to be just compensation), accepted (meets all 
requirements, but not selected as recommended or approved), or not 
accepted. If authorized by the Agency to do so, the staff review 
appraiser shall also approve the appraisal (as the basis for the 
establishment of the amount believed to be just compensation), and, if 
also authorized to do so, develop and report the amount believed to be 
just compensation. (See appendix A, Sec.  24.104(a).)
    (b) If the review appraiser is unable to recommend (or approve) an 
appraisal as an adequate basis for the establishment of the offer of 
just compensation, and it is determined by the acquiring Agency that it 
is not practical to obtain an additional appraisal, the review appraiser 
may, as part of the review, present and analyze market information in 
conformance with Sec.  24.103 to support a recommended (or approved) 
value. (See appendix A, Sec.  24.104(b).)
    (c) The review appraiser shall prepare a written report that 
identifies the appraisal reports reviewed and documents the findings and 
conclusions arrived at during the review of the appraisal(s). Any 
damages or benefits to any remaining property shall be identified in the 
review appraiser's report. The review appraiser shall also prepare a 
signed certification that states the parameters of the review. The 
certification shall state the approved value, and, if the review 
appraiser is authorized to do so, the amount believed to be just 
compensation for the acquisition. (See appendix A, Sec.  24.104(c).)



Sec.  24.105  Acquisition of tenant-owned improvements.

    (a) Acquisition of improvements. When acquiring any interest in real 
property, the Agency shall offer to acquire at least an equal interest 
in all buildings, structures, or other improvements located upon the 
real property to be acquired, which it requires to be removed or which 
it determines will be adversely affected by the use to which such real 
property will be put. This shall include any improvement of a tenant-
owner who has the right or obligation to remove the improvement at the 
expiration of the lease term.
    (b) Improvements considered to be real property. Any building, 
structure, or other improvement, which would be considered to be real 
property if owned by the owner of the real property on which it is 
located, shall be considered to be real property for purposes of this 
subpart.
    (c) Appraisal and Establishment of Just Compensation for a Tenant-
Owned Improvement. Just compensation for a tenant-owned improvement is 
the amount which the improvement contributes to the fair market value of 
the whole property, or its salvage value, whichever is greater. (Salvage 
value is defined at Sec.  24.2(a)(23).)
    (d) Special conditions for tenant-owned improvements. No payment 
shall be made to a tenant-owner for any real property improvement 
unless:
    (1) The tenant-owner, in consideration for the payment, assigns, 
transfers, and releases to the Agency all of the tenant-owner's right, 
title, and interest in the improvement;
    (2) The owner of the real property on which the improvement is 
located disclaims all interest in the improvement; and
    (3) The payment does not result in the duplication of any 
compensation otherwise authorized by law.
    (e) Alternative compensation. Nothing in this subpart shall be 
construed to deprive the tenant-owner of any right to reject payment 
under this subpart and to obtain payment for such property interests in 
accordance with other applicable law.

[70 FR 611, Jan. 4, 2005, as amended at 70 FR 22611, May 2, 2005]



Sec.  24.106  Expenses incidental to transfer of title to the Agency.

    (a) The owner of the real property shall be reimbursed for all 
reasonable expenses the owner necessarily incurred for:
    (1) Recording fees, transfer taxes, documentary stamps, evidence of 
title, boundary surveys, legal descriptions of the real property, and 
similar expenses incidental to conveying the real property to the 
Agency. However, the Agency is not required to pay costs solely

[[Page 195]]

required to perfect the owner's title to the real property;
    (2) Penalty costs and other charges for prepayment of any 
preexisting recorded mortgage entered into in good faith encumbering the 
real property; and
    (3) The pro rata portion of any prepaid real property taxes which 
are allocable to the period after the Agency obtains title to the 
property or effective possession of it, whichever is earlier.
    (b) Whenever feasible, the Agency shall pay these costs directly to 
the billing agent so that the owner will not have to pay such costs and 
then seek reimbursement from the Agency.



Sec.  24.107  Certain litigation expenses.

    The owner of the real property shall be reimbursed for any 
reasonable expenses, including reasonable attorney, appraisal, and 
engineering fees, which the owner actually incurred because of a 
condemnation proceeding, if:
    (a) The final judgment of the court is that the Agency cannot 
acquire the real property by condemnation;
    (b) The condemnation proceeding is abandoned by the Agency other 
than under an agreed-upon settlement; or
    (c) The court having jurisdiction renders a judgment in favor of the 
owner in an inverse condemnation proceeding or the Agency effects a 
settlement of such proceeding.



Sec.  24.108  Donations.

    An owner whose real property is being acquired may, after being 
fully informed by the Agency of the right to receive just compensation 
for such property, donate such property or any part thereof, any 
interest therein, or any compensation paid therefore, to the Agency as 
such owner shall determine. The Agency is responsible for ensuring that 
an appraisal of the real property is obtained unless the owner releases 
the Agency from such obligation, except as provided in Sec.  
24.102(c)(2).



                Subpart C_General Relocation Requirements



Sec.  24.201  Purpose.

    This subpart prescribes general requirements governing the provision 
of relocation payments and other relocation assistance in this part.



Sec.  24.202  Applicability.

    These requirements apply to the relocation of any displaced person 
as defined at Sec.  24.2(a)(9). Any person who qualifies as a displaced 
person must be fully informed of his or her rights and entitlements to 
relocation assistance and payments provided by the Uniform Act and this 
regulation. (See appendix A, Sec.  24.202.)



Sec.  24.203  Relocation notices.

    (a) General information notice. As soon as feasible, a person 
scheduled to be displaced shall be furnished with a general written 
description of the displacing Agency's relocation program which does at 
least the following:
    (1) Informs the person that he or she may be displaced for the 
project and generally describes the relocation payment(s) for which the 
person may be eligible, the basic conditions of eligibility, and the 
procedures for obtaining the payment(s);
    (2) Informs the displaced person that he or she will be given 
reasonable relocation advisory services, including referrals to 
replacement properties, help in filing payment claims, and other 
necessary assistance to help the displaced person successfully relocate;
    (3) Informs the displaced person that he or she will not be required 
to move without at least 90 days advance written notice (see paragraph 
(c) of this section), and informs any person to be displaced from a 
dwelling that he or she cannot be required to move permanently unless at 
least one comparable replacement dwelling has been made available;
    (4) Informs the displaced person that any person who is an alien not 
lawfully present in the United States is ineligible for relocation 
advisory services and relocation payments, unless such ineligibility 
would result in exceptional and extremely unusual hardship to a 
qualifying spouse, parent, or child, as defined in Sec.  24.208(h); and
    (5) Describes the displaced person's right to appeal the Agency's 
determination as to a person's application for assistance for which a 
person may be eligible under this part.

[[Page 196]]

    (b) Notice of relocation eligibility. Eligibility for relocation 
assistance shall begin on the date of a notice of intent to acquire 
(described in Sec.  24.203(d)), the initiation of negotiations (defined 
in Sec.  24.2(a)(15)), or actual acquisition, whichever occurs first. 
When this occurs, the Agency shall promptly notify all occupants in 
writing of their eligibility for applicable relocation assistance.
    (c) Ninety-day notice--(1) General. No lawful occupant shall be 
required to move unless he or she has received at least 90 days advance 
written notice of the earliest date by which he or she may be required 
to move.
    (2) Timing of notice. The displacing Agency may issue the notice 90 
days or earlier before it expects the person to be displaced.
    (3) Content of notice. The 90-day notice shall either state a 
specific date as the earliest date by which the occupant may be required 
to move, or state that the occupant will receive a further notice 
indicating, at least 30 days in advance, the specific date by which he 
or she must move. If the 90-day notice is issued before a comparable 
replacement dwelling is made available, the notice must state clearly 
that the occupant will not have to move earlier than 90 days after such 
a dwelling is made available. (See Sec.  24.204(a).)
    (4) Urgent need. In unusual circumstances, an occupant may be 
required to vacate the property on less than 90 days advance written 
notice if the displacing Agency determines that a 90-day notice is 
impracticable, such as when the person's continued occupancy of the 
property would constitute a substantial danger to health or safety. A 
copy of the Agency's determination shall be included in the applicable 
case file.
    (d) Notice of intent to acquire. A notice of intent to acquire is a 
displacing Agency's written communication that is provided to a person 
to be displaced, including those to be displaced by rehabilitation or 
demolition activities from property acquired prior to the commitment of 
Federal financial assistance to the activity, which clearly sets forth 
that the Agency intends to acquire the property. A notice of intent to 
acquire establishes eligibility for relocation assistance prior to the 
initiation of negotiations and/or prior to the commitment of Federal 
financial assistance. (See Sec.  24.2(a)(9)(i)(A).)



Sec.  24.204  Availability of comparable replacement dwelling before
displacement.

    (a) General. No person to be displaced shall be required to move 
from his or her dwelling unless at least one comparable replacement 
dwelling (defined at Sec.  24.2 (a)(6)) has been made available to the 
person. When possible, three or more comparable replacement dwellings 
shall be made available. A comparable replacement dwelling will be 
considered to have been made available to a person, if:
    (1) The person is informed of its location;
    (2) The person has sufficient time to negotiate and enter into a 
purchase agreement or lease for the property; and
    (3) Subject to reasonable safeguards, the person is assured of 
receiving the relocation assistance and acquisition payment to which the 
person is entitled in sufficient time to complete the purchase or lease 
of the property.
    (b) Circumstances permitting waiver. The Federal Agency funding the 
project may grant a waiver of the policy in paragraph (a) of this 
section in any case where it is demonstrated that a person must move 
because of:
    (1) A major disaster as defined in section 102 of the Robert T. 
Stafford Disaster Relief and Emergency Assistance Act, as amended (42 
U.S.C. 5122);
    (2) A presidentially declared national emergency; or
    (3) Another emergency which requires immediate vacation of the real 
property, such as when continued occupancy of the displacement dwelling 
constitutes a substantial danger to the health or safety of the 
occupants or the public.
    (c) Basic conditions of emergency move. Whenever a person to be 
displaced is required to relocate from the displacement dwelling for a 
temporary period because of an emergency as described in paragraph (b) 
of this section, the Agency shall:

[[Page 197]]

    (1) Take whatever steps are necessary to assure that the person is 
temporarily relocated to a decent, safe, and sanitary dwelling;
    (2) Pay the actual reasonable out-of-pocket moving expenses and any 
reasonable increase in rent and utility costs incurred in connection 
with the temporary relocation; and
    (3) Make available to the displaced person as soon as feasible, at 
least one comparable replacement dwelling. (For purposes of filing a 
claim and meeting the eligibility requirements for a relocation payment, 
the date of displacement is the date the person moves from the 
temporarily occupied dwelling.)



Sec.  24.205  Relocation planning, advisory services, and coordination.

    (a) Relocation planning. During the early stages of development, an 
Agency shall plan Federal and federally-assisted programs or projects in 
such a manner that recognizes the problems associated with the 
displacement of individuals, families, businesses, farms, and nonprofit 
organizations and develop solutions to minimize the adverse impacts of 
displacement. Such planning, where appropriate, shall precede any action 
by an Agency which will cause displacement, and should be scoped to the 
complexity and nature of the anticipated displacing activity including 
an evaluation of program resources available to carry out timely and 
orderly relocations. Planning may involve a relocation survey or study, 
which may include the following:
    (1) An estimate of the number of households to be displaced 
including information such as owner/tenant status, estimated value and 
rental rates of properties to be acquired, family characteristics, and 
special consideration of the impacts on minorities, the elderly, large 
families, and persons with disabilities when applicable.
    (2) An estimate of the number of comparable replacement dwellings in 
the area (including price ranges and rental rates) that are expected to 
be available to fulfill the needs of those households displaced. When an 
adequate supply of comparable housing is not expected to be available, 
the Agency should consider housing of last resort actions.
    (3) An estimate of the number, type and size of the businesses, 
farms, and nonprofit organizations to be displaced and the approximate 
number of employees that may be affected.
    (4) An estimate of the availability of replacement business sites. 
When an adequate supply of replacement business sites is not expected to 
be available, the impacts of displacing the businesses should be 
considered and addressed. Planning for displaced businesses which are 
reasonably expected to involve complex or lengthy moving processes or 
small businesses with limited financial resources and/or few alternative 
relocation sites should include an analysis of business moving problems.
    (5) Consideration of any special relocation advisory services that 
may be necessary from the displacing Agency and other cooperating 
Agencies.
    (b) Loans for planning and preliminary expenses. In the event that 
an Agency elects to consider using the duplicative provision in section 
215 of the Uniform Act which permits the use of project funds for loans 
to cover planning and other preliminary expenses for the development of 
additional housing, the Lead Agency will establish criteria and 
procedures for such use upon the request of the Federal Agency funding 
the program or project.
    (c) Relocation assistance advisory services--(1) General. The Agency 
shall carry out a relocation assistance advisory program which satisfies 
the requirements of Title VI of the Civil Rights Act of 1964 (42 U.S.C. 
2000d et seq.), Title VIII of the Civil Rights Act of 1968 (42 U.S.C. 
3601 et seq.), and Executive Order 11063 (27 FR 11527, November 24, 
1962), and offer the services described in paragraph (c)(2) of this 
section. If the Agency determines that a person occupying property 
adjacent to the real property acquired for the project is caused 
substantial economic injury because of such acquisition, it may offer 
advisory services to such person.
    (2) Services to be provided. The advisory program shall include such 
measures, facilities, and services as may be necessary or appropriate in 
order to:

[[Page 198]]

    (i) Determine, for nonresidential (businesses, farm and nonprofit 
organizations) displacements, the relocation needs and preferences of 
each business (farm and nonprofit organization) to be displaced and 
explain the relocation payments and other assistance for which the 
business may be eligible, the related eligibility requirements, and the 
procedures for obtaining such assistance. This shall include a personal 
interview with each business. At a minimum, interviews with displaced 
business owners and operators should include the following items:
    (A) The business's replacement site requirements, current lease 
terms and other contractual obligations and the financial capacity of 
the business to accomplish the move.
    (B) Determination of the need for outside specialists in accordance 
with Sec.  24.301(g)(12) that will be required to assist in planning the 
move, assistance in the actual move, and in the reinstallation of 
machinery and/or other personal property.
    (C) For businesses, an identification and resolution of personalty/
realty issues. Every effort must be made to identify and resolve realty/
personalty issues prior to, or at the time of, the appraisal of the 
property.
    (D) An estimate of the time required for the business to vacate the 
site.
    (E) An estimate of the anticipated difficulty in locating a 
replacement property.
    (F) An identification of any advance relocation payments required 
for the move, and the Agency's legal capacity to provide them.
    (ii) Determine, for residential displacements, the relocation needs 
and preferences of each person to be displaced and explain the 
relocation payments and other assistance for which the person may be 
eligible, the related eligibility requirements, and the procedures for 
obtaining such assistance. This shall include a personal interview with 
each residential displaced person.
    (A) Provide current and continuing information on the availability, 
purchase prices, and rental costs of comparable replacement dwellings, 
and explain that the person cannot be required to move unless at least 
one comparable replacement dwelling is made available as set forth in 
Sec.  24.204(a).
    (B) As soon as feasible, the Agency shall inform the person in 
writing of the specific comparable replacement dwelling and the price or 
rent used for establishing the upper limit of the replacement housing 
payment (see Sec.  24.403 (a) and (b)) and the basis for the 
determination, so that the person is aware of the maximum replacement 
housing payment for which he or she may qualify.
    (C) Where feasible, housing shall be inspected prior to being made 
available to assure that it meets applicable standards. (See Sec.  
24.2(a)(8).) If such an inspection is not made, the Agency shall notify 
the person to be displaced that a replacement housing payment may not be 
made unless the replacement dwelling is subsequently inspected and 
determined to be decent, safe, and sanitary.
    (D) Whenever possible, minority persons shall be given reasonable 
opportunities to relocate to decent, safe, and sanitary replacement 
dwellings, not located in an area of minority concentration, that are 
within their financial means. This policy, however, does not require an 
Agency to provide a person a larger payment than is necessary to enable 
a person to relocate to a comparable replacement dwelling. (See appendix 
A, Sec.  24.205(c)(2)(ii)(D).)
    (E) The Agency shall offer all persons transportation to inspect 
housing to which they are referred.
    (F) Any displaced person that may be eligible for government housing 
assistance at the replacement dwelling shall be advised of any 
requirements of such government housing assistance program that would 
limit the size of the replacement dwelling (see Sec.  24.2(a)(6)(ix)), 
as well as of the long term nature of such rent subsidy, and the limited 
(42 month) duration of the relocation rental assistance payment.
    (iii) Provide, for nonresidential moves, current and continuing 
information on the availability, purchase prices, and rental costs of 
suitable commercial and farm properties and locations. Assist any person 
displaced from a business or farm operation to obtain and become 
established in a suitable replacement location.

[[Page 199]]

    (iv) Minimize hardships to persons in adjusting to relocation by 
providing counseling, advice as to other sources of assistance that may 
be available, and such other help as may be appropriate.
    (v) Supply persons to be displaced with appropriate information 
concerning Federal and State housing programs, disaster loan and other 
programs administered by the Small Business Administration, and other 
Federal and State programs offering assistance to displaced persons, and 
technical help to persons applying for such assistance.
    (d) Coordination of relocation activities. Relocation activities 
shall be coordinated with project work and other displacement-causing 
activities to ensure that, to the extent feasible, persons displaced 
receive consistent treatment and the duplication of functions is 
minimized. (See Sec.  24.6.)
    (e) Any person who occupies property acquired by an Agency, when 
such occupancy began subsequent to the acquisition of the property, and 
the occupancy is permitted by a short term rental agreement or an 
agreement subject to termination when the property is needed for a 
program or project, shall be eligible for advisory services, as 
determined by the Agency.



Sec.  24.206  Eviction for cause.

    (a) Eviction for cause must conform to applicable State and local 
law. Any person who occupies the real property and is not in unlawful 
occupancy on the date of the initiation of negotiations, is presumed to 
be entitled to relocation payments and other assistance set forth in 
this part unless the Agency determines that:
    (1) The person received an eviction notice prior to the initiation 
of negotiations and, as a result of that notice is later evicted; or
    (2) The person is evicted after the initiation of negotiations for 
serious or repeated violation of material terms of the lease or 
occupancy agreement; and
    (3) In either case the eviction was not undertaken for the purpose 
of evading the obligation to make available the payments and other 
assistance set forth in this part.
    (b) For purposes of determining eligibility for relocation payments, 
the date of displacement is the date the person moves, or if later, the 
date a comparable replacement dwelling is made available. This section 
applies only to persons who would otherwise have been displaced by the 
project. (See appendix A, Sec.  24.206.)



Sec.  24.207  General requirements--claims for relocation payments.

    (a) Documentation. Any claim for a relocation payment shall be 
supported by such documentation as may be reasonably required to support 
expenses incurred, such as bills, certified prices, appraisals, or other 
evidence of such expenses. A displaced person must be provided 
reasonable assistance necessary to complete and file any required claim 
for payment.
    (b) Expeditious payments. The Agency shall review claims in an 
expeditious manner. The claimant shall be promptly notified as to any 
additional documentation that is required to support the claim. Payment 
for a claim shall be made as soon as feasible following receipt of 
sufficient documentation to support the claim.
    (c) Advanced payments. If a person demonstrates the need for an 
advanced relocation payment in order to avoid or reduce a hardship, the 
Agency shall issue the payment, subject to such safeguards as are 
appropriate to ensure that the objective of the payment is accomplished.
    (d) Time for filing. (1) All claims for a relocation payment shall 
be filed with the Agency no later than 18 months after:
    (i) For tenants, the date of displacement.
    (ii) For owners, the date of displacement or the date of the final 
payment for the acquisition of the real property, whichever is later.
    (2) The Agency shall waive this time period for good cause.
    (e) Notice of denial of claim. If the Agency disapproves all or part 
of a payment claimed or refuses to consider the claim on its merits 
because of untimely filing or other grounds, it shall promptly notify 
the claimant in writing of its determination, the basis for its 
determination, and the procedures for appealing that determination.

[[Page 200]]

    (f) No waiver of relocation assistance. A displacing Agency shall 
not propose or request that a displaced person waive his or her rights 
or entitlements to relocation assistance and benefits provided by the 
Uniform Act and this regulation.
    (g) Expenditure of payments. Payments, provided pursuant to this 
part, shall not be considered to constitute Federal financial 
assistance. Accordingly, this part does not apply to the expenditure of 
such payments by, or for, a displaced person.



Sec.  24.208  Aliens not lawfully present in the United States.

    (a) Each person seeking relocation payments or relocation advisory 
assistance shall, as a condition of eligibility, certify:
    (1) In the case of an individual, that he or she is either a citizen 
or national of the United States, or an alien who is lawfully present in 
the United States.
    (2) In the case of a family, that each family member is either a 
citizen or national of the United States, or an alien who is lawfully 
present in the United States. The certification may be made by the head 
of the household on behalf of other family members.
    (3) In the case of an unincorporated business, farm, or nonprofit 
organization, that each owner is either a citizen or national of the 
United States, or an alien who is lawfully present in the United States. 
The certification may be made by the principal owner, manager, or 
operating officer on behalf of other persons with an ownership interest.
    (4) In the case of an incorporated business, farm, or nonprofit 
organization, that the corporation is authorized to conduct business 
within the United States.
    (b) The certification provided pursuant to paragraphs (a)(1), 
(a)(2), and (a)(3) of this section shall indicate whether such person is 
either a citizen or national of the United States, or an alien who is 
lawfully present in the United States. Requirements concerning the 
certification in addition to those contained in this rule shall be 
within the discretion of the Federal funding Agency and, within those 
parameters, that of the displacing Agency.
    (c) In computing relocation payments under the Uniform Act, if any 
member(s) of a household or owner(s) of an unincorporated business, 
farm, or nonprofit organization is (are) determined to be ineligible 
because of a failure to be legally present in the United States, no 
relocation payments may be made to him or her. Any payment(s) for which 
such household, unincorporated business, farm, or nonprofit organization 
would otherwise be eligible shall be computed for the household, based 
on the number of eligible household members and for the unincorporated 
business, farm, or nonprofit organization, based on the ratio of 
ownership between eligible and ineligible owners.
    (d) The displacing Agency shall consider the certification provided 
pursuant to paragraph (a) of this section to be valid, unless the 
displacing Agency determines in accordance with paragraph (f) of this 
section that it is invalid based on a review of an alien's documentation 
or other information that the Agency considers reliable and appropriate.
    (e) Any review by the displacing Agency of the certifications 
provided pursuant to paragraph (a) of this section shall be conducted in 
a nondiscriminatory fashion. Each displacing Agency will apply the same 
standard of review to all such certifications it receives, except that 
such standard may be revised periodically.
    (f) If, based on a review of an alien's documentation or other 
credible evidence, a displacing Agency has reason to believe that a 
person's certification is invalid (for example a document reviewed does 
not on its face reasonably appear to be genuine), and that, as a result, 
such person may be an alien not lawfully present in the United States, 
it shall obtain the following information before making a final 
determination:
    (1) If the Agency has reason to believe that the certification of a 
person who has certified that he or she is an alien lawfully present in 
the United States is invalid, the displacing Agency shall obtain 
verification of the alien's

[[Page 201]]

status from the local Bureau of Citizenship and Immigration Service 
(BCIS) Office. A list of local BCIS offices is available at http://
www.uscis.gov/graphics/fieldoffices/alphaa.htm. Any request for BCIS 
verification shall include the alien's full name, date of birth and 
alien number, and a copy of the alien's documentation. (If an Agency is 
unable to contact the BCIS, it may contact the FHWA in Washington, DC, 
Office of Real Estate Services or Office of Chief Counsel for a referral 
to the BCIS.)
    (2) If the Agency has reason to believe that the certification of a 
person who has certified that he or she is a citizen or national is 
invalid, the displacing Agency shall request evidence of United States 
citizenship or nationality from such person and, if considered 
necessary, verify the accuracy of such evidence with the issuer.
    (g) No relocation payments or relocation advisory assistance shall 
be provided to a person who has not provided the certification described 
in this section or who has been determined to be not lawfully present in 
the United States, unless such person can demonstrate to the displacing 
Agency's satisfaction that the denial of relocation assistance will 
result in an exceptional and extremely unusual hardship to such person's 
spouse, parent, or child who is a citizen of the United States, or is an 
alien lawfully admitted for permanent residence in the United States.
    (h) For purposes of paragraph (g) of this section, ``exceptional and 
extremely unusual hardship'' to such spouse, parent, or child of the 
person not lawfully present in the United States means that the denial 
of relocation payments and advisory assistance to such person will 
directly result in:
    (1) A significant and demonstrable adverse impact on the health or 
safety of such spouse, parent, or child;
    (2) A significant and demonstrable adverse impact on the continued 
existence of the family unit of which such spouse, parent, or child is a 
member; or
    (3) Any other impact that the displacing Agency determines will have 
a significant and demonstrable adverse impact on such spouse, parent, or 
child.
    (i) The certification referred to in paragraph (a) of this section 
may be included as part of the claim for relocation payments described 
in Sec.  24.207 of this part.

(Approved by the Office of Management and Budget under control number 
2105-0508)



Sec.  24.209  Relocation payments not considered as income.

    No relocation payment received by a displaced person under this part 
shall be considered as income for the purpose of the Internal Revenue 
Code of 1954, which has been redesignated as the Internal Revenue Code 
of 1986 (Title 26, U.S. Code), or for the purpose of determining the 
eligibility or the extent of eligibility of any person for assistance 
under the Social Security Act (42 U.S. Code 301 et seq.) or any other 
Federal law, except for any Federal law providing low-income housing 
assistance.



           Subpart D_Payments for Moving and Related Expenses



Sec.  24.301  Payment for actual reasonable moving and related expenses.

    (a) General. (1) Any owner-occupant or tenant who qualifies as a 
displaced person (defined at Sec.  24.2(a)(9)) and who moves from a 
dwelling (including a mobile home) or who moves from a business, farm or 
nonprofit organization is entitled to payment of his or her actual 
moving and related expenses, as the Agency determines to be reasonable 
and necessary.
    (2) A non-occupant owner of a rented mobile home is eligible for 
actual cost reimbursement under Sec.  24.301 to relocate the mobile 
home. If the mobile home is not acquired as real estate, but the 
homeowner-occupant obtains a replacement housing payment under one of 
the circumstances described at Sec.  24.502(a)(3), the home-owner 
occupant is not eligible for payment for moving the mobile home, but may 
be eligible for a payment for moving personal property from the mobile 
home.
    (b) Moves from a dwelling. A displaced person's actual, reasonable 
and necessary moving expenses for moving personal property from a 
dwelling may be determined based on the cost of one, or a combination of 
the following methods: (Eligible expenses for moves from

[[Page 202]]

a dwelling include the expenses described in paragraphs (g)(1) through 
(g)(7) of this section. Self-moves based on the lower of two bids or 
estimates are not eligible for reimbursement under this section.)
    (1) Commercial move--moves performed by a professional mover.
    (2) Self-move--moves that may be performed by the displaced person 
in one or a combination of the following methods:
    (i) Fixed Residential Moving Cost Schedule. (Described in Sec.  
24.302.)
    (ii) Actual cost move. Supported by receipted bills for labor and 
equipment. Hourly labor rates should not exceed the cost paid by a 
commercial mover. Equipment rental fees should be based on the actual 
cost of renting the equipment but not exceed the cost paid by a 
commercial mover.
    (c) Moves from a mobile home. A displaced person's actual, 
reasonable and necessary moving expenses for moving personal property 
from a mobile home may be determined based on the cost of one, or a 
combination of the following methods: (self-moves based on the lower of 
two bids or estimates are not eligible for reimbursement under this 
section. Eligible expenses for moves from a mobile home include those 
expenses described in paragraphs (g)(1) through (g)(7) of this section. 
In addition to the items in paragraph (a) of this section, the owner-
occupant of a mobile home that is moved as personal property and used as 
the person's replacement dwelling, is also eligible for the moving 
expenses described in paragraphs (g)(8) through (g)(10) of this 
section.)
    (1) Commercial move--moves performed by a professional mover.
    (2) Self-move--moves that may be performed by the displaced person 
in one or a combination of the following methods:
    (i) Fixed Residential Moving Cost Schedule. (Described in Sec.  
24.302.)
    (ii) Actual cost move. Supported by receipted bills for labor and 
equipment. Hourly labor rates should not exceed the cost paid by a 
commercial mover. Equipment rental fees should be based on the actual 
cost of renting the equipment but not exceed the cost paid by a 
commercial mover.
    (d) Moves from a business, farm or nonprofit organization. Personal 
property as determined by an inventory from a business, farm or 
nonprofit organization may be moved by one or a combination of the 
following methods: (Eligible expenses for moves from a business, farm or 
nonprofit organization include those expenses described in paragraphs 
(g)(1) through (g)(7) of this section and paragraphs (g)(11) through 
(g)(18) of this section and Sec.  24.303.)
    (1) Commercial move. Based on the lower of two bids or estimates 
prepared by a commercial mover. At the Agency's discretion, payment for 
a low cost or uncomplicated move may be based on a single bid or 
estimate.
    (2) Self-move. A self-move payment may be based on one or a 
combination of the following:
    (i) The lower of two bids or estimates prepared by a commercial 
mover or qualified Agency staff person. At the Agency's discretion, 
payment for a low cost or uncomplicated move may be based on a single 
bid or estimate; or
    (ii) Supported by receipted bills for labor and equipment. Hourly 
labor rates should not exceed the rates paid by a commercial mover to 
employees performing the same activity and, equipment rental fees should 
be based on the actual rental cost of the equipment but not to exceed 
the cost paid by a commercial mover.
    (e) Personal property only. Eligible expenses for a person who is 
required to move personal property from real property but is not 
required to move from a dwelling (including a mobile home), business, 
farm or nonprofit organization include those expenses described in 
paragraphs (g)(1) through (g)(7) and (g)(18) of this section. (See 
appendix A, Sec.  24.301(e).)
    (f) Advertising signs. The amount of a payment for direct loss of an 
advertising sign, which is personal property shall be the lesser of:
    (1) The depreciated reproduction cost of the sign, as determined by 
the Agency, less the proceeds from its sale; or
    (2) The estimated cost of moving the sign, but with no allowance for 
storage.
    (g) Eligible actual moving expenses. (1) Transportation of the 
displaced person and personal property. Transportation costs for a 
distance beyond 50 miles are

[[Page 203]]

not eligible, unless the Agency determines that relocation beyond 50 
miles is justified.
    (2) Packing, crating, unpacking, and uncrating of the personal 
property.
    (3) Disconnecting, dismantling, removing, reassembling, and 
reinstalling relocated household appliances and other personal property. 
For businesses, farms or nonprofit organizations this includes 
machinery, equipment, substitute personal property, and connections to 
utilities available within the building; it also includes modifications 
to the personal property, including those mandated by Federal, State or 
local law, code or ordinance, necessary to adapt it to the replacement 
structure, the replacement site, or the utilities at the replacement 
site, and modifications necessary to adapt the utilities at the 
replacement site to the personal property.
    (4) Storage of the personal property for a period not to exceed 12 
months, unless the Agency determines that a longer period is necessary.
    (5) Insurance for the replacement value of the property in 
connection with the move and necessary storage.
    (6) The replacement value of property lost, stolen, or damaged in 
the process of moving (not through the fault or negligence of the 
displaced person, his or her agent, or employee) where insurance 
covering such loss, theft, or damage is not reasonably available.
    (7) Other moving-related expenses that are not listed as ineligible 
under Sec.  24.301(h), as the Agency determines to be reasonable and 
necessary.
    (8) The reasonable cost of disassembling, moving, and reassembling 
any appurtenances attached to a mobile home, such as porches, decks, 
skirting, and awnings, which were not acquired, anchoring of the unit, 
and utility ``hookup'' charges.
    (9) The reasonable cost of repairs and/or modifications so that a 
mobile home can be moved and/or made decent, safe, and sanitary.
    (10) The cost of a nonrefundable mobile home park entrance fee, to 
the extent it does not exceed the fee at a comparable mobile home park, 
if the person is displaced from a mobile home park or the Agency 
determines that payment of the fee is necessary to effect relocation.
    (11) Any license, permit, fees or certification required of the 
displaced person at the replacement location. However, the payment may 
be based on the remaining useful life of the existing license, permit, 
fees or certification.
    (12) Professional services as the Agency determines to be actual, 
reasonable and necessary for:
    (i) Planning the move of the personal property;
    (ii) Moving the personal property; and
    (iii) Installing the relocated personal property at the replacement 
location.
    (13) Relettering signs and replacing stationery on hand at the time 
of displacement that are made obsolete as a result of the move.
    (14) Actual direct loss of tangible personal property incurred as a 
result of moving or discontinuing the business or farm operation. The 
payment shall consist of the lesser of:
    (i) The fair market value in place of the item, as is for continued 
use, less the proceeds from its sale. (To be eligible for payment, the 
claimant must make a good faith effort to sell the personal property, 
unless the Agency determines that such effort is not necessary. When 
payment for property loss is claimed for goods held for sale, the fair 
market value shall be based on the cost of the goods to the business, 
not the potential selling prices.); or
    (ii) The estimated cost of moving the item as is, but not including 
any allowance for storage; or for reconnecting a piece of equipment if 
the equipment is in storage or not being used at the acquired site. (See 
appendix A, Sec.  24.301(g)(14)(i) and (ii).) If the business or farm 
operation is discontinued, the estimated cost of moving the item shall 
be based on a moving distance of 50 miles.
    (15) The reasonable cost incurred in attempting to sell an item that 
is not to be relocated.
    (16) Purchase of substitute personal property. If an item of 
personal property, which is used as part of a business or farm operation 
is not moved but is promptly replaced with a substitute

[[Page 204]]

item that performs a comparable function at the replacement site, the 
displaced person is entitled to payment of the lesser of:
    (i) The cost of the substitute item, including installation costs of 
the replacement site, minus any proceeds from the sale or trade-in of 
the replaced item; or
    (ii) The estimated cost of moving and reinstalling the replaced item 
but with no allowance for storage. At the Agency's discretion, the 
estimated cost for a low cost or uncomplicated move may be based on a 
single bid or estimate.
    (17) Searching for a replacement location. A business or farm 
operation is entitled to reimbursement for actual expenses, not to 
exceed $2,500, as the Agency determines to be reasonable, which are 
incurred in searching for a replacement location, including:
    (i) Transportation;
    (ii) Meals and lodging away from home;
    (iii) Time spent searching, based on reasonable salary or earnings;
    (iv) Fees paid to a real estate agent or broker to locate a 
replacement site, exclusive of any fees or commissions related to the 
purchase of such sites;
    (v) Time spent in obtaining permits and attending zoning hearings; 
and
    (vi) Time spent negotiating the purchase of a replacement site based 
on a reasonable salary or earnings.
    (18) Low value/high bulk. When the personal property to be moved is 
of low value and high bulk, and the cost of moving the property would be 
disproportionate to its value in the judgment of the displacing Agency, 
the allowable moving cost payment shall not exceed the lesser of: The 
amount which would be received if the property were sold at the site or 
the replacement cost of a comparable quantity delivered to the new 
business location. Examples of personal property covered by this 
provision include, but are not limited to, stockpiled sand, gravel, 
minerals, metals and other similar items of personal property as 
determined by the Agency.
    (h) Ineligible moving and related expenses. A displaced person is 
not entitled to payment for:
    (1) The cost of moving any structure or other real property 
improvement in which the displaced person reserved ownership. (However, 
this part does not preclude the computation under Sec.  
24.401(c)(2)(iii));
    (2) Interest on a loan to cover moving expenses;
    (3) Loss of goodwill;
    (4) Loss of profits;
    (5) Loss of trained employees;
    (6) Any additional operating expenses of a business or farm 
operation incurred because of operating in a new location except as 
provided in Sec.  24.304(a)(6);
    (7) Personal injury;
    (8) Any legal fee or other cost for preparing a claim for a 
relocation payment or for representing the claimant before the Agency;
    (9) Expenses for searching for a replacement dwelling;
    (10) Physical changes to the real property at the replacement 
location of a business or farm operation except as provided in 
Sec. Sec.  24.301(g)(3) and 24.304(a);
    (11) Costs for storage of personal property on real property already 
owned or leased by the displaced person, and
    (12) Refundable security and utility deposits.
    (i) Notification and inspection (nonresidential). The Agency shall 
inform the displaced person, in writing, of the requirements of this 
section as soon as possible after the initiation of negotiations. This 
information may be included in the relocation information provided the 
displaced person as set forth in Sec.  24.203. To be eligible for 
payments under this section the displaced person must:
    (1) Provide the Agency reasonable advance notice of the approximate 
date of the start of the move or disposition of the personal property 
and an inventory of the items to be moved. However, the Agency may waive 
this notice requirement after documenting its file accordingly.
    (2) Permit the Agency to make reasonable and timely inspections of 
the personal property at both the displacement and replacement sites and 
to monitor the move.
    (j) Transfer of ownership (nonresidential). Upon request and in 
accordance with applicable law, the claimant shall transfer to the 
Agency ownership of

[[Page 205]]

any personal property that has not been moved, sold, or traded in.

[70 FR 611, Jan. 4, 2005, as amended at 70 FR 22611, May 2, 2005]



Sec.  24.302  Fixed payment for moving expenses--residential moves.

    Any person displaced from a dwelling or a seasonal residence or a 
dormitory style room is entitled to receive a fixed moving cost payment 
as an alternative to a payment for actual moving and related expenses 
under Sec.  24.301. This payment shall be determined according to the 
Fixed Residential Moving Cost Schedule \3\ approved by the Federal 
Highway Administration and published in the Federal Register on a 
periodic basis. The payment to a person with minimal personal 
possessions who is in occupancy of a dormitory style room or a person 
whose residential move is performed by an Agency at no cost to the 
person shall be limited to the amount stated in the most recent edition 
of the Fixed Residential Moving Cost Schedule.
---------------------------------------------------------------------------

    \3\ The Fixed Residential Moving Cost Schedule is available at the 
following URL: http://www.fhwa.dot.gov//////realestate/fixsch96.htm. 
Agencies are cautioned to ensure they are using the most recent edition.
---------------------------------------------------------------------------



Sec.  24.303  Related nonresidential eligible expenses.

    The following expenses, in addition to those provided by Sec.  
24.301 for moving personal property, shall be provided if the Agency 
determines that they are actual, reasonable and necessary:
    (a) Connection to available nearby utilities from the right-of-way 
to improvements at the replacement site.
    (b) Professional services performed prior to the purchase or lease 
of a replacement site to determine its suitability for the displaced 
person's business operation including but not limited to, soil testing, 
feasibility and marketing studies (excluding any fees or commissions 
directly related to the purchase or lease of such site). At the 
discretion of the Agency a reasonable pre-approved hourly rate may be 
established. (See appendix A, Sec.  24.303(b).)
    (c) Impact fees or one time assessments for anticipated heavy 
utility usage, as determined necessary by the Agency.



Sec.  24.304  Reestablishment expenses--nonresidential moves.

    In addition to the payments available under Sec. Sec.  24.301 and 
24.303 of this subpart, a small business, as defined in Sec.  
24.2(a)(24), farm or nonprofit organization is entitled to receive a 
payment, not to exceed $10,000, for expenses actually incurred in 
relocating and reestablishing such small business, farm or nonprofit 
organization at a replacement site.
    (a) Eligible expenses. Reestablishment expenses must be reasonable 
and necessary, as determined by the Agency. They include, but are not 
limited to, the following:
    (1) Repairs or improvements to the replacement real property as 
required by Federal, State or local law, code or ordinance.
    (2) Modifications to the replacement property to accommodate the 
business operation or make replacement structures suitable for 
conducting the business.
    (3) Construction and installation costs for exterior signing to 
advertise the business.
    (4) Redecoration or replacement of soiled or worn surfaces at the 
replacement site, such as paint, paneling, or carpeting.
    (5) Advertisement of replacement location.
    (6) Estimated increased costs of operation during the first 2 years 
at the replacement site for such items as:
    (i) Lease or rental charges;
    (ii) Personal or real property taxes;
    (iii) Insurance premiums; and
    (iv) Utility charges, excluding impact fees.
    (7) Other items that the Agency considers essential to the 
reestablishment of the business.
    (b) Ineligible expenses. The following is a nonexclusive listing of 
reestablishment expenditures not considered to be reasonable, necessary, 
or otherwise eligible:
    (1) Purchase of capital assets, such as, office furniture, filing 
cabinets, machinery, or trade fixtures.

[[Page 206]]

    (2) Purchase of manufacturing materials, production supplies, 
product inventory, or other items used in the normal course of the 
business operation.
    (3) Interest on money borrowed to make the move or purchase the 
replacement property.
    (4) Payment to a part-time business in the home which does not 
contribute materially (defined at Sec.  24.2(a)(7)) to the household 
income.



Sec.  24.305  Fixed payment for moving expenses--nonresidential moves.

    (a) Business. A displaced business may be eligible to choose a fixed 
payment in lieu of the payments for actual moving and related expenses, 
and actual reasonable reestablishment expenses provided by Sec. Sec.  
24.301, 24.303 and 24.304. Such fixed payment, except for payment to a 
nonprofit organization, shall equal the average annual net earnings of 
the business, as computed in accordance with paragraph (e) of this 
section, but not less than $1,000 nor more than $20,000. The displaced 
business is eligible for the payment if the Agency determines that:
    (1) The business owns or rents personal property which must be moved 
in connection with such displacement and for which an expense would be 
incurred in such move and, the business vacates or relocates from its 
displacement site;
    (2) The business cannot be relocated without a substantial loss of 
its existing patronage (clientele or net earnings). A business is 
assumed to meet this test unless the Agency determines that it will not 
suffer a substantial loss of its existing patronage;
    (3) The business is not part of a commercial enterprise having more 
than three other entities which are not being acquired by the Agency, 
and which are under the same ownership and engaged in the same or 
similar business activities.
    (4) The business is not operated at a displacement dwelling solely 
for the purpose of renting such dwelling to others;
    (5) The business is not operated at the displacement site solely for 
the purpose of renting the site to others; and
    (6) The business contributed materially to the income of the 
displaced person during the 2 taxable years prior to displacement. (See 
Sec.  24.2(a)(7).)
    (b) Determining the number of businesses. In determining whether two 
or more displaced legal entities constitute a single business, which is 
entitled to only one fixed payment, all pertinent factors shall be 
considered, including the extent to which:
    (1) The same premises and equipment are shared;
    (2) Substantially identical or interrelated business functions are 
carried out and business and financial affairs are commingled;
    (3) The entities are held out to the public, and to those 
customarily dealing with them, as one business; and
    (4) The same person or closely related persons own, control, or 
manage the affairs of the entities.
    (c) Farm operation. A displaced farm operation (defined at Sec.  
24.2(a)(12)) may choose a fixed payment, in lieu of the payments for 
actual moving and related expenses and actual reasonable reestablishment 
expenses, in an amount equal to its average annual net earnings as 
computed in accordance with paragraph (e) of this section, but not less 
than $1,000 nor more than $20,000. In the case of a partial acquisition 
of land, which was a farm operation before the acquisition, the fixed 
payment shall be made only if the Agency determines that:
    (1) The acquisition of part of the land caused the operator to be 
displaced from the farm operation on the remaining land; or
    (2) The partial acquisition caused a substantial change in the 
nature of the farm operation.
    (d) Nonprofit organization. A displaced nonprofit organization may 
choose a fixed payment of $1,000 to $20,000, in lieu of the payments for 
actual moving and related expenses and actual reasonable reestablishment 
expenses, if the Agency determines that it cannot be relocated without a 
substantial loss of existing patronage (membership or clientele). A 
nonprofit organization is assumed to meet this test, unless the Agency 
demonstrates otherwise. Any payment in excess of $1,000 must be 
supported with financial statements

[[Page 207]]

for the two 12-month periods prior to the acquisition. The amount to be 
used for the payment is the average of 2 years annual gross revenues 
less administrative expenses. (See appendix A, Sec.  24.305(d).)
    (e) Average annual net earnings of a business or farm operation. The 
average annual net earnings of a business or farm operation are one-half 
of its net earnings before Federal, State, and local income taxes during 
the 2 taxable years immediately prior to the taxable year in which it 
was displaced. If the business or farm was not in operation for the full 
2 taxable years prior to displacement, net earnings shall be based on 
the actual period of operation at the displacement site during the 2 
taxable years prior to displacement, projected to an annual rate. 
Average annual net earnings may be based upon a different period of time 
when the Agency determines it to be more equitable. Net earnings include 
any compensation obtained from the business or farm operation by its 
owner, the owner's spouse, and dependents. The displaced person shall 
furnish the Agency proof of net earnings through income tax returns, 
certified financial statements, or other reasonable evidence, which the 
Agency determines is satisfactory. (See appendix A, Sec.  24.305(e).)



Sec.  24.306  Discretionary utility relocation payments.

    (a) Whenever a program or project undertaken by a displacing Agency 
causes the relocation of a utility facility (see Sec.  24.2(a)(31)) and 
the relocation of the facility creates extraordinary expenses for its 
owner, the displacing Agency may, at its option, make a relocation 
payment to the owner for all or part of such expenses, if the following 
criteria are met:
    (1) The utility facility legally occupies State or local government 
property, or property over which the State or local government has an 
easement or right-of-way;
    (2) The utility facility's right of occupancy thereon is pursuant to 
State law or local ordinance specifically authorizing such use, or where 
such use and occupancy has been granted through a franchise, use and 
occupancy permit, or other similar agreement;
    (3) Relocation of the utility facility is required by and is 
incidental to the primary purpose of the project or program undertaken 
by the displacing Agency;
    (4) There is no Federal law, other than the Uniform Act, which 
clearly establishes a policy for the payment of utility moving costs 
that is applicable to the displacing Agency's program or project; and
    (5) State or local government reimbursement for utility moving costs 
or payment of such costs by the displacing Agency is in accordance with 
State law.
    (b) For the purposes of this section, the term extraordinary 
expenses means those expenses which, in the opinion of the displacing 
Agency, are not routine or predictable expenses relating to the 
utility's occupancy of rights-of-way, and are not ordinarily budgeted as 
operating expenses, unless the owner of the utility facility has 
explicitly and knowingly agreed to bear such expenses as a condition for 
use of the property, or has voluntarily agreed to be responsible for 
such expenses.
    (c) A relocation payment to a utility facility owner for moving 
costs under this section may not exceed the cost to functionally restore 
the service disrupted by the federally-assisted program or project, less 
any increase in value of the new facility and salvage value of the old 
facility. The displacing Agency and the utility facility owner shall 
reach prior agreement on the nature of the utility relocation work to be 
accomplished, the eligibility of the work for reimbursement, the 
responsibilities for financing and accomplishing the work, and the 
method of accumulating costs and making payment. (See appendix A, Sec.  
24.306.)



                 Subpart E_Replacement Housing Payments



Sec.  24.401  Replacement housing payment for 180-day homeowner-occupants.

    (a) Eligibility. A displaced person is eligible for the replacement 
housing payment for a 180-day homeowner-occupant if the person:
    (1) Has actually owned and occupied the displacement dwelling for 
not less

[[Page 208]]

than 180 days immediately prior to the initiation of negotiations; and
    (2) Purchases and occupies a decent, safe, and sanitary replacement 
dwelling within one year after the later of the following dates (except 
that the Agency may extend such one year period for good cause):
    (i) The date the displaced person receives final payment for the 
displacement dwelling or, in the case of condemnation, the date the full 
amount of the estimate of just compensation is deposited in the court; 
or
    (ii) The date the displacing Agency's obligation under Sec.  24.204 
is met.
    (b) Amount of payment. The replacement housing payment for an 
eligible 180-day homeowner-occupant may not exceed $22,500. (See also 
Sec.  24.404.) The payment under this subpart is limited to the amount 
necessary to relocate to a comparable replacement dwelling within one 
year from the date the displaced homeowner-occupant is paid for the 
displacement dwelling, or the date a comparable replacement dwelling is 
made available to such person, whichever is later. The payment shall be 
the sum of:
    (1) The amount by which the cost of a replacement dwelling exceeds 
the acquisition cost of the displacement dwelling, as determined in 
accordance with paragraph (c) of this section;
    (2) The increased interest costs and other debt service costs which 
are incurred in connection with the mortgage(s) on the replacement 
dwelling, as determined in accordance with paragraph (d) of this 
section; and
    (3) The reasonable expenses incidental to the purchase of the 
replacement dwelling, as determined in accordance with paragraph (e) of 
this section.
    (c) Price differential--(1) Basic computation. The price 
differential to be paid under paragraph (b)(1) of this section is the 
amount which must be added to the acquisition cost of the displacement 
dwelling and site (see Sec.  24.2(a)(11)) to provide a total amount 
equal to the lesser of:
    (i) The reasonable cost of a comparable replacement dwelling as 
determined in accordance with Sec.  24.403(a); or
    (ii) The purchase price of the decent, safe, and sanitary 
replacement dwelling actually purchased and occupied by the displaced 
person.
    (2) Owner retention of displacement dwelling. If the owner retains 
ownership of his or her dwelling, moves it from the displacement site, 
and reoccupies it on a replacement site, the purchase price of the 
replacement dwelling shall be the sum of:
    (i) The cost of moving and restoring the dwelling to a condition 
comparable to that prior to the move;
    (ii) The cost of making the unit a decent, safe, and sanitary 
replacement dwelling (defined at Sec.  24.2(a)(8)); and
    (iii) The current fair market value for residential use of the 
replacement dwelling site (see appendix A, Sec.  24.401(c)(2)(iii)), 
unless the claimant rented the displacement site and there is a 
reasonable opportunity for the claimant to rent a suitable replacement 
site; and
    (iv) The retention value of the dwelling, if such retention value is 
reflected in the ``acquisition cost'' used when computing the 
replacement housing payment.
    (d) Increased mortgage interest costs. The displacing Agency shall 
determine the factors to be used in computing the amount to be paid to a 
displaced person under paragraph (b)(2) of this section. The payment for 
increased mortgage interest cost shall be the amount which will reduce 
the mortgage balance on a new mortgage to an amount which could be 
amortized with the same monthly payment for principal and interest as 
that for the mortgage(s) on the displacement dwelling. In addition, 
payments shall include other debt service costs, if not paid as 
incidental costs, and shall be based only on bona fide mortgages that 
were valid liens on the displacement dwelling for at least 180 days 
prior to the initiation of negotiations. Paragraphs (d)(1) through 
(d)(5) of this section shall apply to the computation of the increased 
mortgage interest costs payment, which payment shall be contingent upon 
a mortgage being placed on the replacement dwelling.
    (1) The payment shall be based on the unpaid mortgage balance(s) on 
the displacement dwelling; however, in the event the displaced person 
obtains a smaller mortgage than the mortgage

[[Page 209]]

balance(s) computed in the buydown determination, the payment will be 
prorated and reduced accordingly. (See appendix A, Sec.  24.401(d).) In 
the case of a home equity loan the unpaid balance shall be that balance 
which existed 180 days prior to the initiation of negotiations or the 
balance on the date of acquisition, whichever is less.
    (2) The payment shall be based on the remaining term of the 
mortgage(s) on the displacement dwelling or the term of the new 
mortgage, whichever is shorter.
    (3) The interest rate on the new mortgage used in determining the 
amount of the payment shall not exceed the prevailing fixed interest 
rate for conventional mortgages currently charged by mortgage lending 
institutions in the area in which the replacement dwelling is located.
    (4) Purchaser's points and loan origination or assumption fees, but 
not seller's points, shall be paid to the extent:
    (i) They are not paid as incidental expenses;
    (ii) They do not exceed rates normal to similar real estate 
transactions in the area;
    (iii) The Agency determines them to be necessary; and
    (iv) The computation of such points and fees shall be based on the 
unpaid mortgage balance on the displacement dwelling, less the amount 
determined for the reduction of the mortgage balance under this section.
    (5) The displaced person shall be advised of the approximate amount 
of this payment and the conditions that must be met to receive the 
payment as soon as the facts relative to the person's current 
mortgage(s) are known and the payment shall be made available at or near 
the time of closing on the replacement dwelling in order to reduce the 
new mortgage as intended.
    (e) Incidental expenses. The incidental expenses to be paid under 
paragraph (b)(3) of this section or Sec.  24.402(c)(1) are those 
necessary and reasonable costs actually incurred by the displaced person 
incident to the purchase of a replacement dwelling, and customarily paid 
by the buyer, including:
    (1) Legal, closing, and related costs, including those for title 
search, preparing conveyance instruments, notary fees, preparing surveys 
and plats, and recording fees.
    (2) Lender, FHA, or VA application and appraisal fees.
    (3) Loan origination or assumption fees that do not represent 
prepaid interest.
    (4) Professional home inspection, certification of structural 
soundness, and termite inspection.
    (5) Credit report.
    (6) Owner's and mortgagee's evidence of title, e.g., title 
insurance, not to exceed the costs for a comparable replacement 
dwelling.
    (7) Escrow agent's fee.
    (8) State revenue or documentary stamps, sales or transfer taxes 
(not to exceed the costs for a comparable replacement dwelling).
    (9) Such other costs as the Agency determine to be incidental to the 
purchase.
    (f) Rental assistance payment for 180-day homeowner. A 180-day 
homeowner-occupant, who could be eligible for a replacement housing 
payment under paragraph (a) of this section but elects to rent a 
replacement dwelling, is eligible for a rental assistance payment. The 
amount of the rental assistance payment is based on a determination of 
market rent for the acquired dwelling compared to a comparable rental 
dwelling available on the market. The difference, if any, is computed in 
accordance with Sec.  24.402(b)(1), except that the limit of $5,250 does 
not apply, and disbursed in accordance with Sec.  24.402(b)(3). Under no 
circumstances would the rental assistance payment exceed the amount that 
could have been received under Sec.  24.401(b)(1) had the 180-day 
homeowner elected to purchase and occupy a comparable replacement 
dwelling.

[70 FR 611, Jan. 4, 2005, as amended at 70 FR 22611, May 2, 2005]



Sec.  24.402  Replacement housing payment for 90-day occupants.

    (a) Eligibility. A tenant or owner-occupant displaced from a 
dwelling is entitled to a payment not to exceed $5,250 for rental 
assistance, as computed in accordance with paragraph (b) of this 
section, or downpayment assistance, as

[[Page 210]]

computed in accordance with paragraph (c) of this section, if such 
displaced person:
    (1) Has actually and lawfully occupied the displacement dwelling for 
at least 90 days immediately prior to the initiation of negotiations; 
and
    (2) Has rented, or purchased, and occupied a decent, safe, and 
sanitary replacement dwelling within 1 year (unless the Agency extends 
this period for good cause) after:
    (i) For a tenant, the date he or she moves from the displacement 
dwelling; or
    (ii) For an owner-occupant, the later of:
    (A) The date he or she receives final payment for the displacement 
dwelling, or in the case of condemnation, the date the full amount of 
the estimate of just compensation is deposited with the court; or
    (B) The date he or she moves from the displacement dwelling.
    (b) Rental assistance payment--(1) Amount of payment. An eligible 
displaced person who rents a replacement dwelling is entitled to a 
payment not to exceed $5,250 for rental assistance. (See Sec.  24.404.) 
Such payment shall be 42 times the amount obtained by subtracting the 
base monthly rental for the displacement dwelling from the lesser of:
    (i) The monthly rent and estimated average monthly cost of utilities 
for a comparable replacement dwelling; or
    (ii) The monthly rent and estimated average monthly cost of 
utilities for the decent, safe, and sanitary replacement dwelling 
actually occupied by the displaced person.
    (2) Base monthly rental for displacement dwelling. The base monthly 
rental for the displacement dwelling is the lesser of:
    (i) The average monthly cost for rent and utilities at the 
displacement dwelling for a reasonable period prior to displacement, as 
determined by the Agency (for an owner-occupant, use the fair market 
rent for the displacement dwelling. For a tenant who paid little or no 
rent for the displacement dwelling, use the fair market rent, unless its 
use would result in a hardship because of the person's income or other 
circumstances);
    (ii) Thirty (30) percent of the displaced person's average monthly 
gross household income if the amount is classified as ``low income'' by 
the U.S. Department of Housing and Urban Development's Annual Survey of 
Income Limits for the Public Housing and Section 8 Programs \4\. The 
base monthly rental shall be established solely on the criteria in 
paragraph (b)(2)(i) of this section for persons with income exceeding 
the survey's ``low income'' limits, for persons refusing to provide 
appropriate evidence of income, and for persons who are dependents. A 
full time student or resident of an institution may be assumed to be a 
dependent, unless the person demonstrates otherwise; or,
---------------------------------------------------------------------------

    \4\ The U.S. Department of Housing and Urban Development's Public 
Housing and Section 8 Program Income Limits are updated annually and are 
available on FHWA's Web site at http://www.fhwa.dot.gov/realestate/ua/
ualic.htm.
---------------------------------------------------------------------------

    (iii) The total of the amounts designated for shelter and utilities 
if the displaced person is receiving a welfare assistance payment from a 
program that designates the amounts for shelter and utilities.
    (3) Manner of disbursement. A rental assistance payment may, at the 
Agency's discretion, be disbursed in either a lump sum or in 
installments. However, except as limited by Sec.  24.403(f), the full 
amount vests immediately, whether or not there is any later change in 
the person's income or rent, or in the condition or location of the 
person's housing.
    (c) Downpayment assistance payment--(1) Amount of payment. An 
eligible displaced person who purchases a replacement dwelling is 
entitled to a downpayment assistance payment in the amount the person 
would receive under paragraph (b) of this section if the person rented a 
comparable replacement dwelling. At the Agency's discretion, a 
downpayment assistance payment that is less than $5,250 may be increased 
to any amount not to exceed $5,250. However, the payment to a displaced 
homeowner shall not exceed the amount the owner would receive under 
Sec.  24.401(b) if he or she met the 180-day occupancy requirement. If 
the Agency elects to provide the maximum payment of $5,250 as

[[Page 211]]

a downpayment, the Agency shall apply this discretion in a uniform and 
consistent manner, so that eligible displaced persons in like 
circumstances are treated equally. A displaced person eligible to 
receive a payment as a 180-day owner-occupant under Sec.  24.401(a) is 
not eligible for this payment. (See appendix A, Sec.  24.402(c).)
    (2) Application of payment. The full amount of the replacement 
housing payment for downpayment assistance must be applied to the 
purchase price of the replacement dwelling and related incidental 
expenses.



Sec.  24.403  Additional rules governing replacement housing payments.

    (a) Determining cost of comparable replacement dwelling. The upper 
limit of a replacement housing payment shall be based on the cost of a 
comparable replacement dwelling (defined at Sec.  24.2(a)(6)).
    (1) If available, at least three comparable replacement dwellings 
shall be examined and the payment computed on the basis of the dwelling 
most nearly representative of, and equal to, or better than, the 
displacement dwelling.
    (2) If the site of the comparable replacement dwelling lacks a major 
exterior attribute of the displacement dwelling site, (e.g., the site is 
significantly smaller or does not contain a swimming pool), the value of 
such attribute shall be subtracted from the acquisition cost of the 
displacement dwelling for purposes of computing the payment.
    (3) If the acquisition of a portion of a typical residential 
property causes the displacement of the owner from the dwelling and the 
remainder is a buildable residential lot, the Agency may offer to 
purchase the entire property. If the owner refuses to sell the remainder 
to the Agency, the fair market value of the remainder may be added to 
the acquisition cost of the displacement dwelling for purposes of 
computing the replacement housing payment.
    (4) To the extent feasible, comparable replacement dwellings shall 
be selected from the neighborhood in which the displacement dwelling was 
located or, if that is not possible, in nearby or similar neighborhoods 
where housing costs are generally the same or higher.
    (5) Multiple occupants of one displacement dwelling. If two or more 
occupants of the displacement dwelling move to separate replacement 
dwellings, each occupant is entitled to a reasonable prorated share, as 
determined by the Agency, of any relocation payments that would have 
been made if the occupants moved together to a comparable replacement 
dwelling. However, if the Agency determines that two or more occupants 
maintained separate households within the same dwelling, such occupants 
have separate entitlements to relocation payments.
    (6) Deductions from relocation payments. An Agency shall deduct the 
amount of any advance relocation payment from the relocation payment(s) 
to which a displaced person is otherwise entitled. The Agency shall not 
withhold any part of a relocation payment to a displaced person to 
satisfy an obligation to any other creditor.
    (7) Mixed-use and multifamily properties. If the displacement 
dwelling was part of a property that contained another dwelling unit 
and/or space used for nonresidential purposes, and/or is located on a 
lot larger than typical for residential purposes, only that portion of 
the acquisition payment which is actually attributable to the 
displacement dwelling shall be considered the acquisition cost when 
computing the replacement housing payment.
    (b) Inspection of replacement dwelling. Before making a replacement 
housing payment or releasing the initial payment from escrow, the Agency 
or its designated representative shall inspect the replacement dwelling 
and determine whether it is a decent, safe, and sanitary dwelling as 
defined at Sec.  24.2(a)(8).
    (c) Purchase of replacement dwelling. A displaced person is 
considered to have met the requirement to purchase a replacement 
dwelling, if the person:
    (1) Purchases a dwelling;
    (2) Purchases and rehabilitates a substandard dwelling;
    (3) Relocates a dwelling which he or she owns or purchases;
    (4) Constructs a dwelling on a site he or she owns or purchases;

[[Page 212]]

    (5) Contracts for the purchase or construction of a dwelling on a 
site provided by a builder or on a site the person owns or purchases; or
    (6) Currently owns a previously purchased dwelling and site, 
valuation of which shall be on the basis of current fair market value.
    (d) Occupancy requirements for displacement or replacement dwelling. 
No person shall be denied eligibility for a replacement housing payment 
solely because the person is unable to meet the occupancy requirements 
set forth in these regulations for a reason beyond his or her control, 
including:
    (1) A disaster, an emergency, or an imminent threat to the public 
health or welfare, as determined by the President, the Federal Agency 
funding the project, or the displacing Agency; or
    (2) Another reason, such as a delay in the construction of the 
replacement dwelling, military duty, or hospital stay, as determined by 
the Agency.
    (e) Conversion of payment. A displaced person who initially rents a 
replacement dwelling and receives a rental assistance payment under 
Sec.  24.402(b) is eligible to receive a payment under Sec.  24.401 or 
Sec.  24.402(c) if he or she meets the eligibility criteria for such 
payments, including purchase and occupancy within the prescribed 1-year 
period. Any portion of the rental assistance payment that has been 
disbursed shall be deducted from the payment computed under Sec.  24.401 
or Sec.  24.402(c).
    (f) Payment after death. A replacement housing payment is personal 
to the displaced person and upon his or her death the undisbursed 
portion of any such payment shall not be paid to the heirs or assigns, 
except that:
    (1) The amount attributable to the displaced person's period of 
actual occupancy of the replacement housing shall be paid.
    (2) Any remaining payment shall be disbursed to the remaining family 
members of the displaced household in any case in which a member of a 
displaced family dies.
    (3) Any portion of a replacement housing payment necessary to 
satisfy the legal obligation of an estate in connection with the 
selection of a replacement dwelling by or on behalf of a deceased person 
shall be disbursed to the estate.
    (g) Insurance proceeds. To the extent necessary to avoid duplicate 
compensation, the amount of any insurance proceeds received by a person 
in connection with a loss to the displacement dwelling due to a 
catastrophic occurrence (fire, flood, etc.) shall be included in the 
acquisition cost of the displacement dwelling when computing the price 
differential. (See Sec.  24.3.)

[70 FR 611, Jan. 4, 2005, as amended at 70 FR 22611, May 2, 2005]



Sec.  24.404  Replacement housing of last resort.

    (a) Determination to provide replacement housing of last resort. 
Whenever a program or project cannot proceed on a timely basis because 
comparable replacement dwellings are not available within the monetary 
limits for owners or tenants, as specified in Sec.  24.401 or Sec.  
24.402, as appropriate, the Agency shall provide additional or 
alternative assistance under the provisions of this subpart. Any 
decision to provide last resort housing assistance must be adequately 
justified either:
    (1) On a case-by-case basis, for good cause, which means that 
appropriate consideration has been given to:
    (i) The availability of comparable replacement housing in the 
program or project area;
    (ii) The resources available to provide comparable replacement 
housing; and
    (iii) The individual circumstances of the displaced person, or
    (2) By a determination that:
    (i) There is little, if any, comparable replacement housing 
available to displaced persons within an entire program or project area; 
and, therefore, last resort housing assistance is necessary for the area 
as a whole;
    (ii) A program or project cannot be advanced to completion in a 
timely manner without last resort housing assistance; and
    (iii) The method selected for providing last resort housing 
assistance is cost effective, considering all elements, which contribute 
to total program or project costs.
    (b) Basic rights of persons to be displaced. Notwithstanding any 
provision

[[Page 213]]

of this subpart, no person shall be required to move from a displacement 
dwelling unless comparable replacement housing is available to such 
person. No person may be deprived of any rights the person may have 
under the Uniform Act or this part. The Agency shall not require any 
displaced person to accept a dwelling provided by the Agency under these 
procedures (unless the Agency and the displaced person have entered into 
a contract to do so) in lieu of any acquisition payment or any 
relocation payment for which the person may otherwise be eligible.
    (c) Methods of providing comparable replacement housing. Agencies 
shall have broad latitude in implementing this subpart, but 
implementation shall be for reasonable cost, on a case-by-case basis 
unless an exception to case-by-case analysis is justified for an entire 
project.
    (1) The methods of providing replacement housing of last resort 
include, but are not limited to:
    (i) A replacement housing payment in excess of the limits set forth 
in Sec.  24.401 or Sec.  24.402. A replacement housing payment under 
this section may be provided in installments or in a lump sum at the 
Agency's discretion.
    (ii) Rehabilitation of and/or additions to an existing replacement 
dwelling.
    (iii) The construction of a new replacement dwelling.
    (iv) The provision of a direct loan, which requires regular 
amortization or deferred repayment. The loan may be unsecured or secured 
by the real property. The loan may bear interest or be interest-free.
    (v) The relocation and, if necessary, rehabilitation of a dwelling.
    (vi) The purchase of land and/or a replacement dwelling by the 
displacing Agency and subsequent sale or lease to, or exchange with a 
displaced person.
    (vii) The removal of barriers for persons with disabilities.
    (2) Under special circumstances, consistent with the definition of a 
comparable replacement dwelling, modified methods of providing 
replacement housing of last resort permit consideration of replacement 
housing based on space and physical characteristics different from those 
in the displacement dwelling (see appendix A, Sec.  24.404(c)), 
including upgraded, but smaller replacement housing that is decent, 
safe, and sanitary and adequate to accommodate individuals or families 
displaced from marginal or substandard housing with probable functional 
obsolescence. In no event, however, shall a displaced person be required 
to move into a dwelling that is not functionally equivalent in 
accordance with Sec.  24.2(a)(6)(ii) of this part.
    (3) The Agency shall provide assistance under this subpart to a 
displaced person who is not eligible to receive a replacement housing 
payment under Sec. Sec.  24.401 and 24.402 because of failure to meet 
the length of occupancy requirement when comparable replacement rental 
housing is not available at rental rates within the displaced person's 
financial means. (See Sec.  24.2(a)(6)(viii)(C).) Such assistance shall 
cover a period of 42 months.



                         Subpart F_Mobile Homes



Sec.  24.501  Applicability.

    (a) General. This subpart describes the requirements governing the 
provision of replacement housing payments to a person displaced from a 
mobile home and/or mobile home site who meets the basic eligibility 
requirements of this part. Except as modified by this subpart, such a 
displaced person is entitled to a moving expense payment in accordance 
with subpart D of this part and a replacement housing payment in 
accordance with subpart E of this part to the same extent and subject to 
the same requirements as persons displaced from conventional dwellings. 
Moving cost payments to persons occupying mobile homes are covered in 
Sec.  24.301(g)(1) through (g)(10).
    (b) Partial acquisition of mobile home park. The acquisition of a 
portion of a mobile home park property may leave a remaining part of the 
property that is not adequate to continue the operation of the park. If 
the Agency determines that a mobile home located in the remaining part 
of the property must be moved as a direct result of the project, the 
occupant of the mobile home shall be considered to be a displaced person 
who is entitled to relocation payments and other assistance under this 
part.

[[Page 214]]



Sec.  24.502  Replacement housing payment for 180-day mobile homeowner
displaced from a mobile home, and/or from the acquired mobile home site.

    (a) Eligibility. An owner-occupant displaced from a mobile home or 
site is entitled to a replacement housing payment, not to exceed 
$22,500, under Sec.  24.401 if:
    (1) The person occupied the mobile home on the displacement site for 
at least 180 days immediately before:
    (i) The initiation of negotiations to acquire the mobile home, if 
the person owned the mobile home and the mobile home is real property;
    (ii) The initiation of negotiations to acquire the mobile home site 
if the mobile home is personal property, but the person owns the mobile 
home site; or
    (iii) The date of the Agency's written notification to the owner-
occupant that the owner is determined to be displaced from the mobile 
home as described in paragraphs (a)(3)(i) through (iv) of this section.
    (2) The person meets the other basic eligibility requirements at 
Sec.  24.401(a)(2); and
    (3) The Agency acquires the mobile home as real estate, or acquires 
the mobile home site from the displaced owner, or the mobile home is 
personal property but the owner is displaced from the mobile home 
because the Agency determines that the mobile home:
    (i) Is not, and cannot economically be made decent, safe, and 
sanitary;
    (ii) Cannot be relocated without substantial damage or unreasonable 
cost;
    (iii) Cannot be relocated because there is no available comparable 
replacement site; or
    (iv) Cannot be relocated because it does not meet mobile home park 
entrance requirements.
    (b) Replacement housing payment computation for a 180-day owner that 
is displaced from a mobile home. The replacement housing payment for an 
eligible displaced 180-day owner is computed as described at Sec.  
24.401(b) incorporating the following, as applicable:
    (1) If the Agency acquires the mobile home as real estate and/or 
acquires the owned site, the acquisition cost used to compute the price 
differential payment is the actual amount paid to the owner as just 
compensation for the acquisition of the mobile home, and/or site, if 
owned by the displaced mobile homeowner.
    (2) If the Agency does not purchase the mobile home as real estate 
but the owner is determined to be displaced from the mobile home and 
eligible for a replacement housing payment based on paragraph 
(a)(1)(iii) of this section, the eligible price differential payment for 
the purchase of a comparable replacement mobile home, is the lesser of 
the displaced mobile homeowner's net cost to purchase a replacement 
mobile home (i.e., purchase price of the replacement mobile home less 
trade-in or sale proceeds of the displacement mobile home); or, the cost 
of the Agency's selected comparable mobile home less the Agency's 
estimate of the salvage or trade-in value for the mobile home from which 
the person is displaced.
    (3) If a comparable replacement mobile home site is not available, 
the price differential payment shall be computed on the basis of the 
reasonable cost of a conventional comparable replacement dwelling.
    (c) Rental assistance payment for a 180-day owner-occupant that is 
displaced from a leased or rented mobile home site. If the displacement 
mobile home site is leased or rented, a displaced 180-day owner-occupant 
is entitled to a rental assistance payment computed as described in 
Sec.  24.402(b). This rental assistance payment may be used to lease a 
replacement site; may be applied to the purchase price of a replacement 
site; or may be applied, with any replacement housing payment 
attributable to the mobile home, to the purchase of a replacement mobile 
home or conventional decent, safe and sanitary dwelling.
    (d) Owner-occupant not displaced from the mobile home. If the Agency 
determines that a mobile home is personal property and may be relocated 
to a comparable replacement site, but the owner-occupant elects not to 
do so, the owner is not entitled to a replacement housing payment for 
the purchase of a replacement mobile home. However, the owner is 
eligible for moving costs described at Sec.  24.301 and any replacement 
housing payment for the purchase or rental of a comparable site as

[[Page 215]]

described in this section or Sec.  24.503 as applicable.



Sec.  24.503  Replacement housing payment for 90-day mobile home occupants.

    A displaced tenant or owner-occupant of a mobile home and/or site is 
eligible for a replacement housing payment, not to exceed $5,250, under 
Sec.  24.402 if:
    (a) The person actually occupied the displacement mobile home on the 
displacement site for at least 90 days immediately prior to the 
initiation of negotiations;
    (b) The person meets the other basic eligibility requirements at 
Sec.  24.402(a); and
    (c) The Agency acquires the mobile home and/or mobile home site, or 
the mobile home is not acquired by the Agency but the Agency determines 
that the occupant is displaced from the mobile home because of one of 
the circumstances described at Sec.  24.502(a)(3).



                         Subpart G_Certification



Sec.  24.601  Purpose.

    This subpart permits a State Agency to fulfill its responsibilities 
under the Uniform Act by certifying that it shall operate in accordance 
with State laws and regulations which shall accomplish the purpose and 
effect of the Uniform Act, in lieu of providing the assurances required 
by Sec.  24.4 of this part.



Sec.  24.602  Certification application.

    An Agency wishing to proceed on the basis of a certification may 
request an application for certification from the Lead Agency Director, 
Office of Real Estate Services, HEPR-1, Federal Highway Administration, 
1200 New Jersey Avenue, SE., Washington, DC 20590. The completed 
application for certification must be approved by the governor of the 
State, or the governor's designee, and must be coordinated with the 
Federal funding Agency, in accordance with application procedures.

[70 FR 611, Jan. 4, 2005, as amended at 73 FR 33329, June 12, 2008]



Sec.  24.603  Monitoring and corrective action.

    (a) The Federal Lead Agency shall, in coordination with other 
Federal Agencies, monitor from time to time State Agency implementation 
of programs or projects conducted under the certification process and 
the State Agency shall make available any information required for this 
purpose.
    (b) The Lead Agency may require periodic information or data from 
affected Federal or State Agencies.
    (c) A Federal Agency may, after consultation with the Lead Agency, 
and notice to and consultation with the governor, or his or her 
designee, rescind any previous approval provided under this subpart if 
the certifying State Agency fails to comply with its certification or 
with applicable State law and regulations. The Federal Agency shall 
initiate consultation with the Lead Agency at least 30 days prior to any 
decision to rescind approval of a certification under this subpart. The 
Lead Agency will also inform other Federal Agencies, which have accepted 
a certification under this subpart from the same State Agency, and will 
take whatever other action that may be appropriate.
    (d) Section 103(b)(2) of the Uniform Act, as amended, requires that 
the head of the Lead Agency report biennially to the Congress on State 
Agency implementation of section 103. To enable adequate preparation of 
the prescribed biennial report, the Lead Agency may require periodic 
information or data from affected Federal or State Agencies.





           Sec. Appendix A to Part 24--Additional Information

    This appendix provides additional information to explain the intent 
of certain provisions of this part.

                           Subpart A--General

    Section 24.2 Definitions and Acronyms
    Section 24.2(a)(6) Definition of comparable replacement dwelling. 
The requirement in Sec.  24.2(a)(6)(ii) that a comparable replacement 
dwelling be ``functionally equivalent'' to the displacement dwelling 
means that it must perform the same function, and provide the

[[Page 216]]

same utility. While it need not possess every feature of the 
displacement dwelling, the principal features must be present.
    For example, if the displacement dwelling contains a pantry and a 
similar dwelling is not available, a replacement dwelling with ample 
kitchen cupboards may be acceptable. Insulated and heated space in a 
garage might prove an adequate substitute for basement workshop space. A 
dining area may substitute for a separate dining room. Under some 
circumstances, attic space could substitute for basement space for 
storage purposes, and vice versa.
    Only in unusual circumstances may a comparable replacement dwelling 
contain fewer rooms or, consequentially, less living space than the 
displacement dwelling. Such may be the case when a decent, safe, and 
sanitary replacement dwelling (which by definition is ``adequate to 
accommodate'' the displaced person) may be found to be ``functionally 
equivalent'' to a larger but very run-down substandard displacement 
dwelling. Another example is when a displaced person accepts an offer of 
government housing assistance and the applicable requirements of such 
housing assistance program require that the displaced person occupy a 
dwelling that has fewer rooms or less living space than the displacement 
dwelling.
    Section 24.2(a)(6)(vii). The definition of comparable replacement 
dwelling requires that a comparable replacement dwelling for a person 
who is not receiving assistance under any government housing program 
before displacement must be currently available on the private market 
without any subsidy under a government housing program.
    Section 24.2(a)(6)(ix). A public housing unit may qualify as a 
comparable replacement dwelling only for a person displaced from a 
public housing unit. A privately owned dwelling with a housing program 
subsidy tied to the unit may qualify as a comparable replacement 
dwelling only for a person displaced from a similarly subsidized unit or 
public housing.
    A housing program subsidy that is paid to a person (not tied to the 
building), such as a HUD Section 8 Housing Voucher Program, may be 
reflected in an offer of a comparable replacement dwelling to a person 
receiving a similar subsidy or occupying a privately owned subsidized 
unit or public housing unit before displacement.
    However, nothing in this part prohibits an Agency from offering, or 
precludes a person from accepting, assistance under a government housing 
program, even if the person did not receive similar assistance before 
displacement. However, the Agency is obligated to inform the person of 
his or her options under this part. (If a person accepts assistance 
under a government housing assistance program, the rules of that program 
governing the size of the dwelling apply, and the rental assistance 
payment under Sec.  24.402 would be computed on the basis of the 
person's actual out-of-pocket cost for the replacement housing.)
    Section 24.2(a)(8)(ii) Decent, Safe and Sanitary. Many local housing 
and occupancy codes require the abatement of deteriorating paint, 
including lead-based paint and lead-based paint dust, in protecting the 
public health and safety. Where such standards exist, they must be 
honored. Even where local law does not mandate adherence to such 
standards, it is strongly recommended that they be considered as a 
matter of public policy.
    Section 24.2(a)(8)(vii) Persons with a disability. Reasonable 
accommodation of a displaced person with a disability at the replacement 
dwelling means the Agency is required to address persons with a physical 
impairment that substantially limits one or more of the major life 
activities. In these situations, reasonable accommodation should include 
the following at a minimum: Doors of adequate width; ramps or other 
assistance devices to traverse stairs and access bathtubs, shower 
stalls, toilets and sinks; storage cabinets, vanities, sink and mirrors 
at appropriate heights. Kitchen accommodations will include sinks and 
storage cabinets built at appropriate heights for access. The Agency 
shall also consider other items that may be necessary, such as physical 
modification to a unit, based on the displaced person's needs.
    Section 24.2(a)(9)(ii)(D) Persons not displaced. Paragraph 
(a)(9)(ii)(D) of this section recognizes that there are circumstances 
where the acquisition, rehabilitation or demolition of real property 
takes place without the intent or necessity that an occupant of the 
property be permanently displaced. Because such occupants are not 
considered ``displaced persons'' under this part, great care must be 
exercised to ensure that they are treated fairly and equitably. For 
example, if the tenant-occupant of a dwelling will not be displaced, but 
is required to relocate temporarily in connection with the project, the 
temporarily occupied housing must be decent, safe, and sanitary and the 
tenant must be reimbursed for all reasonable out-of-pocket expenses 
incurred in connection with the temporary relocation. These expenses may 
include moving expenses and increased housing costs during the temporary 
relocation. Temporary relocation should not extend beyond one year 
before the person is returned to his or her previous unit or location. 
The Agency must contact any residential tenant who has been temporarily 
relocated for a period beyond one year and offer all permanent 
relocation assistance. This assistance would be in addition to any 
assistance the person has already received for temporary relocation, and 
may not be reduced by the amount of any temporary relocation assistance.

[[Page 217]]

    Similarly, if a business will be shut-down for any length of time 
due to rehabilitation of a site, it may be temporarily relocated and 
reimbursed for all reasonable out of pocket expenses or must be 
determined to be displaced at the Agency's option.
    Any person who disagrees with the Agency's determination that he or 
she is not a displaced person under this part may file an appeal in 
accordance with 49 CFR part 24.10 of this regulation.
    Section 24.2(a)(11) Dwelling Site. This definition ensures that the 
computation of replacement housing payments are accurate and realistic 
(a) when the dwelling is located on a larger than normal site, (b) when 
mixed-use properties are acquired, (c) when more than one dwelling is 
located on the acquired property, or (d) when the replacement dwelling 
is retained by an owner and moved to another site.
    Section 24.2(a)(14) Household income (exclusions). Household income 
for purposes of this regulation does not include program benefits that 
are not considered income by Federal law such as food stamps and the 
Women Infants and Children (WIC) program. For a more detailed list of 
income exclusions see Federal Highway Administration, Office of Real 
Estate Services Web site: http://www.fhwa.dot.gov/realestate/. (FR 4644-
N-16 page 20319 Updated.) If there is a question on whether or not to 
include income from a specific program contact the Federal Agency 
administering the program.
    Section 24(a)(15) Initiation of negotiations. This section provides 
a special definition for acquisition and displacements under Pub. L. 96-
510 or Superfund. The order of activities under Superfund may differ 
slightly in that temporary relocation may precede acquisition. Superfund 
is a program designed to clean up hazardous waste sites. When such a 
site is discovered, it may be necessary, in certain limited 
circumstances, to alert individual owners and tenants to potential 
health or safety threats and to offer to temporarily relocate them while 
additional information is gathered. If a decision is later made to 
permanently relocate such persons, those who had been temporarily 
relocated under Superfund authority would no longer be on site when a 
formal, written offer to acquire the property was made, and thus would 
lose their eligibility for a replacement housing payment. In order to 
prevent this unfair outcome, we have provided a definition of initiation 
of negotiation, which is based on the date the Federal Government offers 
to temporarily relocate an owner or tenant from the subject property.
    Section 24.2(a)(15)(iv) Initiation of negotiations (Tenants.) 
Tenants who occupy property that may be acquired amicably, without 
recourse to the use of the power of eminent domain, must be fully 
informed as to their eligibility for relocation assistance. This 
includes notifying such tenants of their potential eligibility when 
negotiations are initiated, notifying them if they become fully 
eligible, and, in the event the purchase of the property will not occur, 
notifying them that they are no longer eligible for relocation benefits. 
If a tenant is not readily accessible, as the result of a disaster or 
emergency, the Agency must make a good faith effort to provide these 
notifications and document its efforts in writing.
    Section 24.2(a)(17) Mobile home. The following examples provide 
additional guidance on the types of mobile homes and manufactured 
housing that can be found acceptable as comparable replacement dwellings 
for persons displaced from mobile homes. A recreational vehicle that is 
capable of providing living accommodations may be considered a 
replacement dwelling if the following criteria are met: the recreational 
vehicle is purchased and occupied as the ``primary'' place of residence; 
it is located on a purchased or leased site and connected to or have 
available all necessary utilities for functioning as a housing unit on 
the date of the displacing Agency's inspection; and, the dwelling, as 
sited, meets all local, State, and Federal requirements for a decent, 
safe and sanitary dwelling. (The regulations of some local jurisdictions 
will not permit the consideration of these vehicles as decent, safe and 
sanitary dwellings. In those cases, the recreational vehicle will not 
qualify as a replacement dwelling.)
    For HUD programs, mobile home is defined as ``a structure, 
transportable in one or more sections, which, in the traveling mode, is 
eight body feet or more in width or forty body feet or more in length, 
or, when erected on site, is three hundred or more square feet, and 
which is built on a permanent chassis and designed to be used as a 
dwelling with or without a permanent foundation when connected to the 
required utilities and includes the plumbing, heating, air-conditioning, 
and electrical systems contained therein; except that such terms shall 
include any structure which meets all the requirements of this paragraph 
except the size requirements and with respect to which the manufacturer 
voluntarily files a certification required by the Secretary of HUD and 
complies with the standards established under the National Manufactured 
Housing Construction and Safety Standards Act, provided by Congress in 
the original 1974 Manufactured Housing Act.'' In 1979 the term ``mobile 
home'' was changed to ``manufactured home.'' For purposes of this 
regulation, the terms mobile home and manufactured home are synonymous.
    When assembled, manufactured homes built after 1976 contain no less 
than 320

[[Page 218]]

square feet. They may be single or multi-sectioned units when installed. 
Their designation as personalty or realty will be determined by State 
law. When determined to be realty, most are eligible for conventional 
mortgage financing.
    The 1976 HUD standards distinguish manufactured homes from factory-
built ``modular homes'' as well as conventional or ``stick-built'' 
homes. Both of these types of housing are required to meet State and 
local construction codes.
    Section 24.3 No Duplication of Payments. This section prohibits an 
Agency from making a payment to a person under these regulations that 
would duplicate another payment the person receives under Federal, 
State, or local law. The Agency is not required to conduct an exhaustive 
search for such other payments; it is only required to avoid creating a 
duplication based on the Agency's knowledge at the time a payment is 
computed.

                  Subpart B--Real Property Acquisition

    Federal Agencies may find that, for Federal eminent domain purposes, 
the terms ``fair market value'' (as used throughout this subpart) and 
``market value,'' which may be the more typical term in private 
transactions, may be synonymous.
    Section 24.101(a) Direct Federal program or project. All 49 CFR Part 
24 Subpart B (real property acquisition) requirements apply to all 
direct acquisitions for Federal programs and projects by Federal 
Agencies, except for acquisitions undertaken by the Tennessee Valley 
Authority or the Rural Utilities Service. There are no exceptions for 
``voluntary transactions.''
    Section 24.101(b)(1)(i). The term ``general geographic area'' is 
used to clarify that the ``geographic area'' is not to be construed to 
be a small, limited area.
    Sections 24.101(b)(1)(iv) and (2)(ii). These sections provide that, 
for programs and projects receiving Federal financial assistance 
described in Sec. Sec.  24.101(b)(1) and (2), Agencies are to inform the 
owner(s) in writing of the Agency's estimate of the fair market value 
for the property to be acquired.
    While this part does not require an appraisal for these 
transactions, Agencies may still decide that an appraisal is necessary 
to support their determination of the market value of these properties, 
and, in any event, Agencies must have some reasonable basis for their 
determination of market value. In addition, some of the concepts 
inherent in Federal Program appraisal practice are appropriate for these 
estimates. It would be appropriate for Agencies to adhere to project 
influence restrictions, as well as guard against discredited ``public 
interest value'' valuation concepts.
    After an Agency has established an amount it believes to be the 
market value of the property and has notified the owner of this amount 
in writing, an Agency may negotiate freely with the owner in order to 
reach agreement. Since these transactions are voluntary, accomplished by 
a willing buyer and a willing seller, negotiations may result in 
agreement for the amount of the original estimate, an amount exceeding 
it, or for a lesser amount. Although not required by the regulations, it 
would be entirely appropriate for Agencies to apply the administrative 
settlement concept and procedures in Sec.  24.102(i) to negotiate 
amounts that exceed the original estimate of market value. Agencies 
shall not take any coercive action in order to reach agreement on the 
price to be paid for the property.
    Section 24.101(c) Less-than-full-fee interest in real property. This 
provision provides a benchmark beyond which the requirements of the 
subpart clearly apply to leases.
    Section 24.102(c)(2) Appraisal, waiver thereof, and invitation to 
owner. The purpose of the appraisal waiver provision is to provide 
Agencies a technique to avoid the costs and time delay associated with 
appraisal requirements for low-value, non-complex acquisitions. The 
intent is that non-appraisers make the waiver valuations, freeing 
appraisers to do more sophisticated work.
    The Agency employee making the determination to use the appraisal 
waiver process must have enough understanding of appraisal principles to 
be able to determine whether or not the proposed acquisition is low 
value and uncomplicated.
    Waiver valuations are not appraisals as defined by the Uniform Act 
and these regulations; therefore, appraisal performance requirements or 
standards, regardless of their source, are not required for waiver 
valuations by this rule. Since waiver valuations are not appraisals, 
neither is there a requirement for an appraisal review. However, the 
Agency must have a reasonable basis for the waiver valuation and an 
Agency official must still establish an amount believed to be just 
compensation to offer the property owner(s).
    The definition of ``appraisal'' in the Uniform Act and appraisal 
waiver provisions of the Uniform Act and these regulations are Federal 
law and public policy and should be considered as such when determining 
the impact of appraisal requirements levied by others.
    Section 24.102(d) Establishment of offer of just compensation. The 
initial offer to the property owner may not be less than the amount of 
the Agency's approved appraisal, but may exceed that amount if the 
Agency determines that a greater amount reflects just compensation for 
the property.
    Section 24.102(f) Basic negotiation procedures. An offer should be 
adequately presented to an owner, and the owner should be properly 
informed. Personal, face-to-face contact

[[Page 219]]

should take place, if feasible, but this section does not require such 
contact in all cases.
    This section also provides that the property owner be given a 
reasonable opportunity to consider the Agency's offer and to present 
relevant material to the Agency. In order to satisfy this requirement, 
Agencies must allow owners time for analysis, research and development, 
and compilation of a response, including perhaps getting an appraisal. 
The needed time can vary significantly, depending on the circumstances, 
but thirty (30) days would seem to be the minimum time these actions can 
be reasonably expected to require. Regardless of project time pressures, 
property owners must be afforded this opportunity.
    In some jurisdictions, there is pressure to initiate formal eminent 
domain procedures at the earliest opportunity because completing the 
eminent domain process, including gaining possession of the needed real 
property, is very time consuming. These provisions are not intended to 
restrict this practice, so long as it does not interfere with the 
reasonable time that must be provided for negotiations, described above, 
and the Agencies adhere to the Uniform Act ban on coercive action 
(section 301(7) of the Uniform Act).
    If the owner expresses intent to provide an appraisal report, 
Agencies are encouraged to provide the owner and/or his/her appraiser a 
copy of Agency appraisal requirements and inform them that their 
appraisal should be based on those requirements.
    Section 24.102(i) Administrative settlement. This section provides 
guidance on administrative settlement as an alternative to judicial 
resolution of a difference of opinion on the value of a property, in 
order to avoid unnecessary litigation and congestion in the courts.
    All relevant facts and circumstances should be considered by an 
Agency official delegated this authority. Appraisers, including review 
appraisers, must not be pressured to adjust their estimate of value for 
the purpose of justifying such settlements. Such action would invalidate 
the appraisal process.
    Section 24.102(j) Payment before taking possession. It is intended 
that a right-of-entry for construction purposes be obtained only in the 
exceptional case, such as an emergency project, when there is no time to 
make an appraisal and purchase offer and the property owner is agreeable 
to the process.
    Section 24.102(m) Fair rental. Section 301(6) of the Uniform Act 
limits what an Agency may charge when a former owner or previous 
occupant of a property is permitted to rent the property for a short 
term or when occupancy is subject to termination by the Agency on short 
notice. Such rent may not exceed ``the fair rental value of the property 
to a short-term occupier.'' Generally, the Agency's right to terminate 
occupancy on short notice (whether or not the renter also has that 
right) supports the establishment of a lesser rental than might be found 
in a longer, fixed-term situation.
    Section 24.102(n) Conflict of interest. The overall objective is to 
minimize the risk of fraud while allowing Agencies to operate as 
efficiently as possible. There are three parts to this provision.
    The first provision is the prohibition against having any interest 
in the real property being valued by the appraiser (for an appraisal), 
the valuer (for a waiver estimate) or the review appraiser (for an 
appraisal review.)
    The second provision is that no person functioning as a negotiator 
for a project or program can supervise or formally evaluate the 
performance of any appraiser or review appraiser performing appraisal or 
appraisal review work for that project or program. The intent of this 
provision is to ensure appraisal/valuation independence and to prevent 
inappropriate influence. It is not intended to prevent Agencies from 
providing appraisers/valuers with appropriate project information and 
participating in determining the scope of work for the appraisal or 
valuation. For a program or project receiving Federal financial 
assistance, the Federal funding Agency may waive this requirement if it 
would create a hardship for the Agency. The intent is to accommodate 
Federal-aid recipients that have a small staff where this provision 
would be unworkable.
    The third provision is to minimize situations where administrative 
costs exceed acquisition costs. Section 24.102(n) also provides that the 
same person may prepare a valuation estimate (including an appraisal) 
and negotiate that acquisition, if the valuation estimate amount is 
$10,000 or less. However, it should be noted that this exception for 
properties valued at $10,000 or less is not mandatory, e.g., Agencies 
are not required to use those who prepare a waiver valuation or 
appraisal of $10,000 or less to negotiate the acquisition, and, all 
appraisals must be reviewed in accordance with Sec.  24.104. This 
includes appraisals of real property valued at $10,000 or less.
    Section 24.103 Criteria for Appraisals. The term ``requirements'' is 
used throughout this section to avoid confusion with The Appraisal 
Foundation's Uniform Standards of Professional Appraisal Practice 
(USPAP) ``standards.'' Although this section discusses appraisal 
requirements, the definition of ``appraisal'' itself at Sec.  24.2(a)(3) 
includes appraisal performance requirements that are an inherent part of 
this section.
    The term ``Federal and federally-assisted program or project'' is 
used to better identify the type of appraisal practices that are to be 
referenced and to differentiate them

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from the private sector, especially mortgage lending, appraisal 
practice.
    Section 24.103(a) Appraisal requirements. The first sentence 
instructs readers that requirements for appraisals for Federal and 
federally-assisted programs or projects are located in 49 CFR part 24. 
These are the basic appraisal requirements for Federal and federally-
assisted programs or projects. However, Agencies may enhance and expand 
on them, and there may be specific project or program legislation that 
references other appraisal requirements.
    These appraisal requirements are necessarily designed to comply with 
the Uniform Act and other Federal eminent domain based appraisal 
requirements. They are also considered to be consistent with Standards 
Rules 1, 2, and 3 of the 2004 edition of the USPAP. Consistency with 
USPAP has been a feature of these appraisal requirements since the 
beginning of USPAP. This ``consistent'' relationship was more formally 
recognized in OMB Bulletin 92-06. While these requirements are 
considered consistent with USPAP, neither can supplant the other; their 
provisions are neither identical, nor interchangeable. Appraisals 
performed for Federal and federally-assisted real property acquisition 
must follow the requirements in this regulation. Compliance with any 
other appraisal requirements is not the purview of this regulation. An 
appraiser who is committed to working within the bounds of USPAP should 
recognize that compliance with both USPAP and these requirements may be 
achieved by using the Supplemental Standards Rule and the Jurisdictional 
Exception Rule of USPAP, where applicable.
    The term ``scope of work'' defines the general parameters of the 
appraisal. It reflects the needs of the Agency and the requirements of 
Federal and federally-assisted program appraisal practice. It should be 
developed cooperatively by the assigned appraiser and an Agency official 
who is competent to both represent the Agency's needs and respect valid 
appraisal practice. The scope of work statement should include the 
purpose and/or function of the appraisal, a definition of the estate 
being appraised, and if it is fair market value, its applicable 
definition, and the assumptions and limiting conditions affecting the 
appraisal. It may include parameters for the data search and 
identification of the technology, including approaches to value, to be 
used to analyze the data. The scope of work should consider the specific 
requirements in 49 CFR 24.103(a)(2)(i) through (v) and address them as 
appropriate.
    Section 24.103(a)(1). The appraisal report should identify the items 
considered in the appraisal to be real property, as well as those 
identified as personal property.
    Section 24.103(a)(2). All relevant and reliable approaches to value 
are to be used. However, where an Agency determines that the sales 
comparison approach will be adequate by itself and yield credible 
appraisal results because of the type of property being appraised and 
the availability of sales data, it may limit the appraisal assignment to 
the sales comparison approach. This should be reflected in the scope of 
work.
    Section 24.103(b) Influence of the project on just compensation. As 
used in this section, the term ``project'' means an undertaking which is 
planned, designed, and intended to operate as a unit.
    When the public is aware of the proposed project, project area 
property values may be affected. Therefore, property owners should not 
be penalized because of a decrease in value caused by the proposed 
project nor reap a windfall at public expense because of increased value 
created by the proposed project.
    Section 24.103(d)(1). The appraiser and review appraiser must each 
be qualified and competent to perform the appraisal and appraisal review 
assignments, respectively. Among other qualifications, State licensing 
or certification and professional society designations can help provide 
an indication of an appraiser's abilities.
    Section 24.104 Review of appraisals. The term ``review appraiser'' 
is used rather than ``reviewing appraiser,'' to emphasize that ``review 
appraiser'' is a separate specialty and not just an appraiser who 
happens to be reviewing an appraisal. Federal Agencies have long held 
the perspective that appraisal review is a unique skill that, while it 
certainly builds on appraisal skills, requires more. The review 
appraiser should possess both appraisal technical abilities and the 
ability to be the two-way bridge between the Agency's real property 
valuation needs and the appraiser.
    Agency review appraisers typically perform a role greater than 
technical appraisal review. They are often involved in early project 
development. Later they may be involved in devising the scope of work 
statements and participate in making appraisal assignments to fee and/or 
staff appraisers. They are also mentors and technical advisors, 
especially on Agency policy and requirements, to appraisers, both staff 
and fee. Additionally, review appraisers are frequently technical 
advisors to other Agency officials.
    Section 24.104(a). This paragraph states that the review appraiser 
is to review the appraiser's presentation and analysis of market 
information and that it is to be reviewed against Sec.  24.103 and other 
applicable requirements, including, to the extent appropriate, the 
Uniform Appraisal Standards for Federal Land Acquisition. The appraisal 
review is to be a technical review by an appropriately qualified review 
appraiser. The qualifications of the review appraiser and the level of

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explanation of the basis for the review appraiser's recommended (or 
approved) value depend on the complexity of the appraisal problem. If 
the initial appraisal submitted for review is not acceptable, the review 
appraiser is to communicate and work with the appraiser to the greatest 
extent possible to facilitate the appraiser's development of an 
acceptable appraisal.
    In doing this, the review appraiser is to remain in an advisory 
role, not directing the appraisal, and retaining objectivity and options 
for the appraisal review itself.
    If the Agency intends that the staff review appraiser approve the 
appraisal (as the basis for the establishment of the amount believed to 
be just compensation), or establish the amount the Agency believes is 
just compensation, she/he must be specifically authorized by the Agency 
to do so. If the review appraiser is not specifically authorized to 
approve the appraisal (as the basis for the establishment of the amount 
believed to be just compensation), or establish the amount believed to 
be just compensation, that authority remains with another Agency 
official.
    Section 24.104(b). In developing an independent approved or 
recommended value, the review appraiser may reference any acceptable 
resource, including acceptable parts of any appraisal, including an 
otherwise unacceptable appraisal. When a review appraiser develops an 
independent value, while retaining the appraisal review, that 
independent value also becomes the approved appraisal of the fair market 
value for Uniform Act Section 301(3) purposes. It is within Agency 
discretion to decide whether a second review is needed if the first 
review appraiser establishes a value different from that in the 
appraisal report or reports on the property.
    Section 24.104(c). Before acceptance of an appraisal, the review 
appraiser must determine that the appraiser's documentation, including 
valuation data and analysis of that data, demonstrates the soundness of 
the appraiser's opinion of value. For the purposes of this part, an 
acceptable appraisal is any appraisal that, on its own, meets the 
requirements of Sec.  24.103. An approved appraisal is the one 
acceptable appraisal that is determined to best fulfill the requirement 
to be the basis for the amount believed to be just compensation. 
Recognizing that appraisal is not an exact science, there may be more 
than one acceptable appraisal of a property, but for the purposes of 
this part, there can be only one approved appraisal.
    At the Agency's discretion, for a low value property requiring only 
a simple appraisal process, the review appraiser's recommendation (or 
approval), endorsing the appraiser's report, may be determined to 
satisfy the requirement for the review appraiser's signed report and 
certification.
    Section 24.106(b). Expenses incidental to transfer of title to the 
agency. Generally, the Agency is able to pay such incidental costs 
directly and, where feasible, is required to do so. In order to prevent 
the property owner from making unnecessary out-of-pocket expenditures 
and to avoid duplication of expenses, the property owner should be 
informed early in the acquisition process of the Agency's intent to make 
such arrangements. Such expenses must be reasonable and necessary.

               Subpart C--General Relocation Requirements

    Section 24.202 Applicability and Section 205(c) Services to be 
provided. In extraordinary circumstances, when a displaced person is not 
readily accessible, the Agency must make a good faith effort to comply 
with these sections and document its efforts in writing.
    Section 24.204 Availability of comparable replacement dwelling 
before displacement.
    Section 24.204(a) General. This provision requires that no one may 
be required to move from a dwelling without a comparable replacement 
dwelling having been made available. In addition, Sec.  24.204(a) 
requires that, ``where possible, three or more comparable replacement 
dwellings shall be made available.'' Thus, the basic standard for the 
number of referrals required under this section is three. Only in 
situations where three comparable replacement dwellings are not 
available (e.g., when the local housing market does not contain three 
comparable dwellings) may the Agency make fewer than three referrals.
    Section 24.205 Relocation assistance advisory services. Section 
24.205(c)(2)(ii)(D) emphasizes that if the comparable replacement 
dwellings are located in areas of minority concentration, minority 
persons should, if possible, also be given opportunities to relocate to 
replacement dwellings not located in such areas.
    Section 24.206 Eviction for cause. An eviction related to non-
compliance with a requirement related to carrying out a project (e.g., 
failure to move or relocate when instructed, or to cooperate in the 
relocation process) shall not negate a person's entitlement to 
relocation payments and other assistance set forth in this part.
    Section 24.207 General Requirements-Claims for relocation payments. 
Section 24.207(a) allows an Agency to make a payment for low cost or 
uncomplicated nonresidential moves without additional documentation, as 
long as the payment is limited to the amount of the lowest acceptable 
bid or estimate, as provided for in Sec.  24.301(d)(1).
    While Sec.  24.207(f) prohibits an Agency from proposing or 
requesting that a displaced person waive his or her rights or 
entitlements to relocation assistance and payments, an

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Agency may accept a written statement from the displaced person that 
states that they have chosen not to accept some or all of the payments 
or assistance to which they are entitled. Any such written statement 
must clearly show that the individual knows what they are entitled to 
receive (a copy of the Notice of Eligibility which was provided may 
serve as documentation) and their statement must specifically identify 
which assistance or payments they have chosen not to accept. The 
statement must be signed and dated and may not be coerced by the Agency.

           Subpart D--Payment for Moving and Related Expenses

    Section 24.301. Payment for Actual Reasonable Moving and Related 
Expenses.
    Section 24.301(e) Personal property only. Examples of personal 
property only moves might be: personal property that is located on a 
portion of property that is being acquired, but the business or 
residence will not be taken and can still operate after the acquisition; 
personal property that is located in a mini-storage facility that will 
be acquired or relocated; personal property that is stored on vacant 
land that is to be acquired.
    For a nonresidential personal property only move, the owner of the 
personal property has the options of moving the personal property by 
using a commercial mover or a self-move.
    If a question arises concerning the reasonableness of an actual cost 
move, the acquiring Agency may obtain estimates from qualified movers to 
use as the standard in determining the payment.
    Section 24.301 (g)(14)(i) and (ii). If the piece of equipment is 
operational at the acquired site, the estimated cost to reconnect the 
equipment shall be based on the cost to install the equipment as it 
currently exists, and shall not include the cost of code-required 
betterments or upgrades that may apply at the replacement site. As 
prescribed in the regulation, the allowable in-place value estimate 
(Sec.  24.301(g)(14)(i)) and moving cost estimate (Sec.  
24.301(g)(14)(ii)) must reflect only the ``as is'' condition and 
installation of the item at the displacement site. The in-place value 
estimate may not include costs that reflect code or other requirements 
that were not in effect at the displacement site; or include 
installation costs for machinery or equipment that is not operable or 
not installed at the displacement site.
    Section 24.301(g)(17) Searching expenses. In special cases where the 
displacing Agency determines it to be reasonable and necessary, certain 
additional categories of searching costs may be considered for 
reimbursement. These include those costs involved in investigating 
potential replacement sites and the time of the business owner, based on 
salary or earnings, required to apply for licenses or permits, zoning 
changes, and attendance at zoning hearings. Necessary attorney fees 
required to obtain such licenses or permits are also reimbursable. Time 
spent in negotiating the purchase of a replacement business site is also 
reimbursable based on a reasonable salary or earnings rate. In those 
instances when such additional costs to investigate and acquire the site 
exceed $2,500, the displacing Agency may consider waiver of the cost 
limitation under the Sec.  24.7, waiver provision. Such a waiver should 
be subject to the approval of the Federal-funding Agency in accordance 
with existing delegation authority.
    Section 24.303(b) Professional Services. If a question should arise 
as to what is a ``reasonable hourly rate,'' the Agency should compare 
the rates of other similar professional providers in that area.
    Section 24.305 Fixed Payment for Moving Expenses--Nonresidential 
Moves.
    Section 24.305(d) Nonprofit organization. Gross revenues may include 
membership fees, class fees, cash donations, tithes, receipts from sales 
or other forms of fund collection that enables the nonprofit 
organization to operate. Administrative expenses are those for 
administrative support such as rent, utilities, salaries, advertising, 
and other like items as well as fundraising expenses. Operating expenses 
for carrying out the purposes of the nonprofit organization are not 
included in administrative expenses. The monetary receipts and expense 
amounts may be verified with certified financial statements or financial 
documents required by public Agencies.
    Section 24.305(e) Average annual net earnings of a business or farm 
operation. If the average annual net earnings of the displaced business, 
farm, or nonprofit organization are determined to be less than $1,000, 
even $0 or a negative amount, the minimum payment of $1,000 shall be 
provided.
    Section 24.306 Discretionary Utility Relocation Payments. Section 
24.306(c) describes the issues that the Agency and the utility facility 
owner must agree to in determining the amount of the relocation payment. 
To facilitate and aid in reaching such agreement, the practices in the 
Federal Highway Administration regulation, 23 CFR part 645, subpart A, 
Utility Relocations, Adjustments and Reimbursement, should be followed.

                 Subpart E--Replacement Housing Payments

    Section 24.401 Replacement Housing Payment for 180-day Homeowner-
Occupants.
    Section 24.401(a)(2). An extension of eligibility may be granted if 
some event beyond the control of the displaced person such as acute or 
life threatening illness, bad weather preventing the completion of 
construction, or physical modifications required for reasonable 
accommodation of a replacement dwelling, or other like circumstances 
causes

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a delay in occupying a decent, safe, and sanitary replacement dwelling.
    Section 24.401(c)(2)(iii) Price differential. The provision in Sec.  
24.401(c)(2)(iii) to use the current fair market value for residential 
use does not mean the Agency must have the property appraised. Any 
reasonable method for arriving at the fair market value may be used.
    Section 24.401(d) Increased mortgage interest costs. The provision 
in Sec.  24.401(d) sets forth the factors to be used in computing the 
payment that will be required to reduce a person's replacement mortgage 
(added to the downpayment) to an amount which can be amortized at the 
same monthly payment for principal and interest over the same period of 
time as the remaining term on the displacement mortgages. This payment 
is commonly known as the ``buydown.''
    The Agency must know the remaining principal balance, the interest 
rate, and monthly principal and interest payments for the old mortgage 
as well as the interest rate, points and term for the new mortgage to 
compute the increased mortgage interest costs. If the combination of 
interest and points for the new mortgage exceeds the current prevailing 
fixed interest rate and points for conventional mortgages and there is 
no justification for the excessive rate, then the current prevailing 
fixed interest rate and points shall be used in the computations. 
Justification may be the unavailability of the current prevailing rate 
due to the amount of the new mortgage, credit difficulties, or other 
similar reasons.

                           Sample Computation
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Old Mortgage:
    Remaining Principal Balance..........................     $50,000
    Monthly Payment (principal and interest).............        $458.22
    Interest rate (percent)..............................           7
New Mortgage:
    Interest rate (percent)..............................          10
    Points...............................................           3
    Term (years).........................................          15
------------------------------------------------------------------------

    Remaining term of the old mortgage is determined to be 174 months. 
Determining, or computing, the actual remaining term is more reliable 
than using the data supplied by the mortgagee. However, if it is 
shorter, use the term of the new mortgage and compute the needed monthly 
payment.
    Amount to be financed to maintain monthly payments of $458.22 at 10% 
= $42,010.18.

------------------------------------------------------------------------
 
------------------------------------------------------------------------
Calculation:
    Remaining Principal Balance.........................      $50,000.00
    Minus Monthly Payment (principal and interest)......      -42,010.18
                                                         ---------------
    Increased mortgage interest costs...................        7,989.82
    3 points on $42,010.18..............................        1,260.31
                                                         ---------------
    Total buydown necessary to maintain payments at             9,250.13
     $458.22/month......................................
------------------------------------------------------------------------

    If the new mortgage actually obtained is less than the computed 
amount for a new mortgage ($42,010.18), the buydown shall be prorated 
accordingly. If the actual mortgage obtained in our example were 
$35,000, the buydown payment would be $7,706.57 ($35,000 divided by 
$42,010.18 = .8331; $9,250.13 multiplied by .83 = $7,706.57).
    The Agency is obligated to inform the displaced person of the 
approximate amount of this payment and that the displaced person must 
obtain a mortgage of at least the same amount as the old mortgage and 
for at least the same term in order to receive the full amount of this 
payment. The Agency must advise the displaced person of the interest 
rate and points used to calculate the payment.
    Section 24.402 Replacement Housing Payment for 90-day Occupants
    Section 24.402(b)(2) Low income calculation example. The Uniform Act 
requires that an eligible displaced person who rents a replacement 
dwelling is entitled to a rental assistance payment calculated in 
accordance with Sec.  24.402(b). One factor in this calculation is to 
determine if a displaced person is ``low income,'' as defined by the 
U.S. Department of Housing and Urban Development's annual survey of 
income limits for the Public Housing and Section 8 Programs. To make 
such a determination, the Agency must: (1) Determine the total number of 
members in the household (including all adults and children); (2) locate 
the appropriate table for income limits applicable to the Uniform Act 
for the state in which the displaced residence is located (found at: 
http://www.fhwa.dot.gov/realestate/ua/ualic.htm); (3) from the list of 
local jurisdictions shown, identify the appropriate county, Metropolitan 
Statistical Area (MSA)*, or Primary Metropolitan Statistical Area 
(PMSA)* in which the displacement property is located; and (4) locate 
the appropriate income limit in that jurisdiction for the size of this 
displaced person/family. The income limit must then be compared to the 
household income (Sec.  24.2(a)(15)) which is the gross annual income 
received by the displaced family, excluding income from any dependent 
children and full-time students under the age of 18. If the household 
income for the eligible displaced person/family is less than or equal to 
the income limit, the family is considered ``low income.'' For example:
    Tom and Mary Smith and their three children are being displaced. The 
information obtained from the family and verified by the Agency is as 
follows:
    Tom Smith, employed, earns $21,000/yr.
    Mary Smith, receives disability payments of $6,000/yr.

[[Page 224]]

    Tom Smith Jr., 21, employed, earns $10,000/yr.
    Mary Jane Smith, 17, student, has a paper route, earns $3,000/yr. 
(Income is not included because she is a dependent child and a full-time 
student under 18)
    Sammie Smith, 10, full-time student, no income.
    Total family income for 5 persons is: $21,000 + $6,000 + $10,000 = 
$37,000
    The displacement residence is located in the State of Maryland, 
Caroline County. The low income limit for a 5 person household is: 
$47,450. (2004 Income Limits)
    This household is considered ``low income.''
    * A complete list of counties and towns included in the identified 
MSAs and PMSAs can be found under the bulleted item ``Income Limit Area 
Definition'' posted on the FHWA's Web site at: http://www.fhwa.dot.gov/
realestate/ua/ualic.htm.
    Section 24.402(c) Downpayment assistance. The downpayment assistance 
provisions in Sec.  24.402(c) limit such assistance to the amount of the 
computed rental assistance payment for a tenant or an eligible 
homeowner. It does, however, provide the latitude for Agency discretion 
in offering downpayment assistance that exceeds the computed rental 
assistance payment, up to the $5,250 statutory maximum. This does not 
mean, however, that such Agency discretion may be exercised in a 
selective or discriminatory fashion. The displacing Agency should 
develop a policy that affords equal treatment for displaced persons in 
like circumstances and this policy should be applied uniformly 
throughout the Agency's programs or projects.
    For the purpose of this section, should the amount of the rental 
assistance payment exceed the purchase price of the replacement 
dwelling, the payment would be limited to the cost of the dwelling.
    Section 24.404 Replacement Housing of Last Resort.
    Section 24.404(b) Basic rights of persons to be displaced. This 
paragraph affirms the right of a 180-day homeowner-occupant, who is 
eligible for a replacement housing payment under Sec.  24.401, to a 
reasonable opportunity to purchase a comparable replacement dwelling. 
However, it should be read in conjunction with the definition of ``owner 
of a dwelling'' at Sec.  24.2(a)(20). The Agency is not required to 
provide persons owning only a fractional interest in the displacement 
dwelling a greater level of assistance to purchase a replacement 
dwelling than the Agency would be required to provide such persons if 
they owned fee simple title to the displacement dwelling. If such 
assistance is not sufficient to buy a replacement dwelling, the Agency 
may provide additional purchase assistance or rental assistance.
    Section 24.404(c) Methods of providing comparable replacement 
housing. This Section emphasizes the use of cost effective means of 
providing comparable replacement housing. The term ``reasonable cost'' 
is used to highlight the fact that while innovative means to provide 
housing are encouraged, they should be cost-effective. Section 
24.404(c)(2) permits the use of last resort housing, in special cases, 
which may involve variations from the usual methods of obtaining 
comparability. However, such variation should never result in a lowering 
of housing standards nor should it ever result in a lower quality of 
living style for the displaced person. The physical characteristics of 
the comparable replacement dwelling may be dissimilar to those of the 
displacement dwelling but they may never be inferior.
    One example might be the use of a new mobile home to replace a very 
substandard conventional dwelling in an area where comparable 
conventional dwellings are not available.
    Another example could be the use of a superior, but smaller, decent, 
safe and sanitary dwelling to replace a large, old substandard dwelling, 
only a portion of which is being used as living quarters by the 
occupants and no other large comparable dwellings are available in the 
area.

[70 FR 611, Jan. 4, 2005, as amended at 70 FR 22611, May 2, 2005]



           Sec. Appendix B to Part 24--Statistical Report Form

    This Appendix sets forth the statistical information collected from 
Agencies in accordance with Sec.  24.9(c).
    General
    1. Report coverage. This report covers all relocation and real 
property acquisition activities under a Federal or a federally-assisted 
project or program subject to the provisions of the Uniform Act. If the 
exact numbers are not easily available, an Agency may provide what it 
believes to be a reasonable estimate.
    2. Report period. Activities shall be reported on a Federal fiscal 
year basis, i.e., October 1 through September 30.
    3. Where and when to submit report. Submit a copy of this report to 
the lead Agency as soon as possible after September 30, but NOT LATER 
THAN NOVEMBER 15. Lead Agency address: Federal Highway Administration, 
Office of Real Estate Services (HEPR), 1200 New Jersey Avenue, SE., 
Washington, DC 20590.
    4. How to report relocation payments. The full amount of a 
relocation payment shall be reported as if disbursed in the year during 
which the claim was approved, regardless of whether the payment is to be 
paid in installments.

[[Page 225]]

    5. How to report dollar amounts. Round off all money entries in 
Parts of this section A, B and C to the nearest dollar.
    6. Regulatory references. The references in Parts A, B, C and D of 
this section indicate the subpart of the regulations pertaining to the 
requested information.

         Part A. Real property acquisition under The Uniform Act

    Line 1. Report all parcels acquired during the report year where 
title or possession was vested in the Agency during the reporting 
period. The parcel count reported should relate to ownerships and not to 
the number of parcels of different property interests (such as fee, 
perpetual easement, temporary easement, etc.) that may have been part of 
an acquisition from one owner. For example, an acquisition from a 
property that includes a fee simple parcel, a perpetual easement parcel, 
and a temporary easement parcel should be reported as 1 parcel not 3 
parcels. (Include parcels acquired without Federal financial assistance, 
if there was or will be Federal financial assistance in other phases of 
the project or program.)
    Line 2. Report the number of parcels reported on Line 1 that were 
acquired by condemnation. Include those parcels where compensation for 
the property was paid, deposited in court, or otherwise made available 
to a property owner pursuant to applicable law in order to vest title or 
possession in the Agency through condemnation authority.
    Line 3. Report the number of parcels in Line 1 acquired through 
administrative settlement where the purchase price for the property 
exceeded the amount offered as just compensation and efforts to 
negotiate an agreement at that amount have failed.
    Line 4. Report the total of the amounts paid, deposited in court, or 
otherwise made available to a property owner pursuant to applicable law 
in order to vest title or possession in the Agency in Line 1.

          Part B. Residential Relocation Under the Uniform Act

    Line 5. Report the number of households who were permanently 
displaced during the fiscal year by project or program activities and 
moved to their replacement dwelling. The term ``households'' includes 
all families and individuals. A family shall be reported as ``one'' 
household, not by the number of people in the family unit.
    Line 6. Report the total amount paid for residential moving expenses 
(actual expense and fixed payment).
    Line 7. Report the total amount paid for residential replacement 
housing payments including payments for replacement housing of last 
resort provided pursuant to Sec.  24.404 of this part.
    Line 8. Report the number of households in Line 5 who were 
permanently displaced during the fiscal year by project or program 
activities and moved to their replacement dwelling as part of last 
resort housing assistance.
    Line 9. Report the number of tenant households in Line 5 who were 
permanently displaced during the fiscal year by project or program 
activities, and who purchased and moved to their replacement dwelling 
using a downpayment assistance payment under this part.
    Line 10. Report the total sum costs of residential relocation 
expenses and payments (excluding Agency administrative expenses) in 
Lines 6 and 7.

         Part C. Nonresidential Relocation Under the Uniform Act

    Line 11. Report the number of businesses, nonprofit organizations, 
and farms who were permanently displaced during the fiscal year by 
project or program activities and moved to their replacement location. 
This includes businesses, nonprofit organizations, and farms, that upon 
displacement, discontinued operations.
    Line 12. Report the total amount paid for nonresidential moving 
expenses (actual expense and fixed payment.)
    Line 13. Report the total amount paid for nonresidential 
reestablishment expenses.
    Line 14. Report the total sum costs of nonresidential relocation 
expenses and payments (excluding Agency administrative expenses) in 
Lines 12 and 13.

                       Part D. Relocation Appeals

    Line 15. Report the total number of relocation appeals filed during 
the fiscal year by aggrieved persons (residential and nonresidential).

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[GRAPHIC] [TIFF OMITTED] TR04JA05.004


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[70 FR 611, Jan. 4, 2005, as amended at 73 FR 33329, June 12, 2008]



PART 25_NONDISCRIMINATION ON THE BASIS OF SEX IN EDUCATION PROGRAMS
OR ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE--Table of Contents



                         Subpart A_Introduction

Sec.
25.100 Purpose and effective date.
25.105 Definitions.
25.110 Remedial and affirmative action and self-evaluation.
25.115 Assurance required.
25.120 Transfers of property.
25.125 Effect of other requirements.
25.130 Effect of employment opportunities.
25.135 Designation of responsible employee and adoption of grievance 
          procedures.
25.140 Dissemination of policy.

                           Subpart B_Coverage

25.200 Application.
25.205 Educational institutions and other entities controlled by 
          religious organizations.
25.210 Military and merchant marine educational institutions.
25.215 Membership practices of certain organizations.
25.220 Admissions.
25.225 Educational institutions eligible to submit transition plans.
25.230 Transition plans.
25.235 Statutory amendments.

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

25.300 Admission.
25.305 Preference in admission.
25.310 Recruitment.

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

25.400 Education programs or activities.
25.405 Housing.
25.410 Comparable facilities.
25.415 Access to course offerings.
25.420 Access to schools operated by LEAs.
25.425 Counseling and use of appraisal and counseling materials.
25.430 Financial assistance.
25.435 Employment assistance to students.
25.440 Health and insurance benefits and services.
25.445 Marital or parental status.
25.450 Athletics.
25.455 Textbooks and curricular material.

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

25.500 Employment.
25.505 Employment criteria.
25.510 Recruitment.
25.515 Compensation.
25.520 Job classification and structure.
25.525 Fringe benefits.
25.530 Marital or parental status.
25.535 Effect of state or local law or other requirements.
25.540 Advertising.
25.545 Pre-employment inquiries.
25.550 Sex as a bona fide occupational qualification.

                          Subpart F_Procedures

25.600 Notice of covered programs.
25.605 Enforcement procedures.

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

    Source: 65 FR 52865, 52894, Aug. 30, 2000, unless otherwise noted.



                         Subpart A_Introduction



Sec.  25.100  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.  25.105  Definitions.

    As used in these Title IX regulations, the term:
    Administratively separate unit means a school, department, or 
college of an educational institution (other than a local educational 
agency) admission to which is independent of admission to any other 
component of such institution.
    Admission means selection for part-time, full-time, special, 
associate,

[[Page 228]]

transfer, exchange, or any other enrollment, membership, or 
matriculation in or at an education program or activity operated by a 
recipient.
    Applicant means one who submits an application, request, or plan 
required to be approved by an official of the Federal agency that awards 
Federal financial assistance, or by a recipient, as a condition to 
becoming a recipient.
    Designated agency official means Director, Departmental Office of 
Civil Rights.
    Educational institution means a local educational agency (LEA) as 
defined by 20 U.S.C. 8801(18), a preschool, a private elementary or 
secondary school, or an applicant or recipient that is an institution of 
graduate higher education, an institution of undergraduate higher 
education, an institution of professional education, or an institution 
of vocational education, as defined in this section.
    Federal financial assistance means any of the following, when 
authorized or extended under a law administered by the Federal agency 
that awards such assistance:
    (1) A grant or loan of Federal financial assistance, including funds 
made available for:
    (i) The acquisition, construction, renovation, restoration, or 
repair of a building or facility or any portion thereof; and
    (ii) Scholarships, loans, grants, wages, or other funds extended to 
any entity for payment to or on behalf of students admitted to that 
entity, or extended directly to such students for payment to that 
entity.
    (2) A grant of Federal real or personal property or any interest 
therein, including surplus property, and the proceeds of the sale or 
transfer of such property, if the Federal share of the fair market value 
of the property is not, upon such sale or transfer, properly accounted 
for to the Federal Government.
    (3) Provision of the services of Federal personnel.
    (4) Sale or lease of Federal property or any interest therein at 
nominal consideration, or at consideration reduced for the purpose of 
assisting the recipient or in recognition of public interest to be 
served thereby, or permission to use Federal property or any interest 
therein without consideration.
    (5) Any other contract, agreement, or arrangement that has as one of 
its purposes the provision of assistance to any education program or 
activity, except a contract of insurance or guaranty.
    Institution of graduate higher education means an institution that:
    (1) Offers academic study beyond the bachelor of arts or bachelor of 
science degree, whether or not leading to a certificate of any higher 
degree in the liberal arts and sciences;
    (2) Awards any degree in a professional field beyond the first 
professional degree (regardless of whether the first professional degree 
in such field is awarded by an institution of undergraduate higher 
education or professional education); or
    (3) Awards no degree and offers no further academic study, but 
operates ordinarily for the purpose of facilitating research by persons 
who have received the highest graduate degree in any field of study.
    Institution of professional education means an institution (except 
any institution of undergraduate higher education) that offers a program 
of academic study that leads to a first professional degree in a field 
for which there is a national specialized accrediting agency recognized 
by the Secretary of Education.
    Institution of undergraduate higher education means:
    (1) An institution offering at least two but less than four years of 
college-level study beyond the high school level, leading to a diploma 
or an associate degree, or wholly or principally creditable toward a 
baccalaureate degree; or
    (2) An institution offering academic study leading to a 
baccalaureate degree; or
    (3) An agency or body that certifies credentials or offers degrees, 
but that may or may not offer academic study.
    Institution of vocational education means a school or institution 
(except an institution of professional or graduate or undergraduate 
higher education) that has as its primary purpose preparation of 
students to pursue a technical, skilled, or semiskilled occupation or 
trade, or to pursue study in a

[[Page 229]]

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.  
25.100 through 25.605.
    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.



Sec.  25.110  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.  25.115  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

[[Page 230]]

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.  25.110(a) 
to eliminate existing discrimination on the basis of sex or to eliminate 
the effects of past discrimination whether occurring prior to or 
subsequent to the submission to the designated agency official of such 
assurance.
    (b) Duration of obligation. (1) In the case of Federal financial 
assistance extended to provide real property or structures thereon, such 
assurance shall obligate the recipient or, in the case of a subsequent 
transfer, the transferee, for the period during which the real property 
or structures are used to provide an education program or activity.
    (2) In the case of Federal financial assistance extended to provide 
personal property, such assurance shall obligate the recipient for the 
period during which it retains ownership or possession of the property.
    (3) In all other cases such assurance shall obligate the recipient 
for the period during which Federal financial assistance is extended.
    (c) Form. (1) The assurances required by paragraph (a) of this 
section, which may be included as part of a document that addresses 
other assurances or obligations, shall include that the applicant or 
recipient will comply with all applicable Federal statutes relating to 
nondiscrimination. These include but are not limited to: Title IX of the 
Education Amendments of 1972, as amended (20 U.S.C. 1681-1683, 1685-
1688).
    (2) The designated agency official will specify the extent to which 
such assurances will be required of the applicant's or recipient's 
subgrantees, contractors, subcontractors, transferees, or successors in 
interest.



Sec.  25.120  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.  25.205 through 25.235(a).



Sec.  25.125  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.

[[Page 231]]



Sec.  25.130  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.  25.135  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.  25.140  Dissemination of policy.

    (a) Notification of policy. (1) Each recipient shall implement 
specific and continuing steps to notify applicants for admission and 
employment, students and parents of elementary and secondary school 
students, employees, sources of referral of applicants for admission and 
employment, and all unions or professional organizations holding 
collective bargaining or professional agreements with the recipient, 
that it does not discriminate on the basis of sex in the educational 
programs or activities that it operates, and that it is required by 
Title IX and these Title IX regulations not to discriminate in such a 
manner. Such notification shall contain such information, and be made in 
such manner, as the designated agency official finds necessary to 
apprise such persons of the protections against discrimination assured 
them by Title IX and these Title IX regulations, but shall state at 
least that the requirement not to discriminate in education programs or 
activities extends to employment therein, and to admission thereto 
unless Sec. Sec.  25.300 through 25.310 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.  25.135, 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.

[[Page 232]]



                           Subpart B_Coverage



Sec.  25.200  Application.

    Except as provided in Sec. Sec.  25.205 through 25.235(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.  25.205  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.  25.210  Military and merchant marine educational institutions.

    These Title IX regulations do not apply to an educational 
institution whose primary purpose is the training of individuals for a 
military service of the United States or for the merchant marine.



Sec.  25.215  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.  25.220  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.  25.225 and 25.230, and Sec. Sec.  25.300 through 
25.310, each administratively separate unit shall be deemed to be an 
educational institution.
    (c) Application of Sec. Sec.  25.300 through .310. Except as 
provided in paragraphs (d) and (e) of this section, Sec. Sec.  25.300 
through 25.310 apply to each recipient. A recipient to which Sec. Sec.  
25.300 through 25.310 apply shall not discriminate on the basis of sex 
in admission or recruitment in violation of Sec. Sec.  25.300 through 
25.310.
    (d) Educational institutions. Except as provided in paragraph (e) of 
this section as to recipients that are educational institutions, 
Sec. Sec.  25.300 through 25.310 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.  25.300 through 25.310 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.  25.225  Educational institutions eligible to submit transition plans.

    (a) Application. This section applies to each educational 
institution to which Sec. Sec.  25.300 through 25.310 apply that:

[[Page 233]]

    (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.  25.300 through 
25.310.



Sec.  25.230  Transition plans.

    (a) Submission of plans. An institution to which Sec.  25.225 
applies and that is composed of more than one administratively separate 
unit may submit either a single transition plan applicable to all such 
units, or a separate transition plan applicable to each such unit.
    (b) Content of plans. In order to be approved by the Secretary of 
Education, a transition plan shall:
    (1) State the name, address, and Federal Interagency Committee on 
Education Code of the educational institution submitting such plan, the 
administratively separate units to which the plan is applicable, and the 
name, address, and telephone number of the person to whom questions 
concerning the plan may be addressed. The person who submits the plan 
shall be the chief administrator or president of the institution, or 
another individual legally authorized to bind the institution to all 
actions set forth in the plan.
    (2) State whether the educational institution or administratively 
separate unit admits students of both sexes as regular students and, if 
so, when it began to do so.
    (3) Identify and describe with respect to the educational 
institution or administratively separate unit any obstacles to admitting 
students without discrimination on the basis of sex.
    (4) Describe in detail the steps necessary to eliminate as soon as 
practicable each obstacle so identified and indicate the schedule for 
taking these steps and the individual directly responsible for their 
implementation.
    (5) Include estimates of the number of students, by sex, expected to 
apply for, be admitted to, and enter each class during the period 
covered by the plan.
    (c) Nondiscrimination. No policy or practice of a recipient to which 
Sec.  25.225 applies shall result in treatment of applicants to or 
students of such recipient in violation of Sec. Sec.  25.300 through 
25.310 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.  25.225 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.  25.235  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;

[[Page 234]]

    (4) Any scholarship or other financial assistance awarded by an 
institution of higher education to an individual because such individual 
has received such award in a single-sex pageant based upon a combination 
of factors related to the individual's personal appearance, poise, and 
talent. The pageant, however, must comply with other nondiscrimination 
provisions of Federal law.
    (c) Program or activity or program means:
    (1) All of the operations of any entity described in paragraphs 
(c)(1)(i) through (iv) of this section, any part of which is extended 
Federal financial assistance:
    (i)(A) A department, agency, special purpose district, or other 
instrumentality of a State or of a local government; or
    (B) The entity of such State or local government that distributes 
such assistance and each such department or agency (and each other State 
or local government entity) to which the assistance is extended, in the 
case of assistance to a State or local government;
    (ii)(A) A college, university, or other postsecondary institution, 
or a public system of higher education; or
    (B) A local educational agency (as defined in section 8801 of title 
20), system of vocational education, or other school system;
    (iii)(A) An entire corporation, partnership, or other private 
organization, or an entire sole proprietorship--
    (1) If assistance is extended to such corporation, partnership, 
private organization, or sole proprietorship as a whole; or
    (2) Which is principally engaged in the business of providing 
education, health care, housing, social services, or parks and 
recreation; or
    (B) The entire plant or other comparable, geographically separate 
facility to which Federal financial assistance is extended, in the case 
of any other corporation, partnership, private organization, or sole 
proprietorship; or
    (iv) Any other entity that is established by two or more of the 
entities described in paragraphs (c)(1)(i), (ii), or (iii) of this 
section.
    (2)(i) Program or activity does not include any operation of an 
entity that is controlled by a religious organization if the application 
of 20 U.S.C. 1681 to such operation would not be consistent with the 
religious tenets of such organization.
    (ii) For example, all of the operations of a college, university, or 
other postsecondary institution, including but not limited to 
traditional educational operations, faculty and student housing, campus 
shuttle bus service, campus restaurants, the bookstore, and other 
commercial activities are part of a ``program or activity'' subject to 
these Title IX regulations if the college, university, or other 
institution receives Federal financial assistance.
    (d)(1) Nothing in these Title IX regulations shall be construed to 
require or prohibit any person, or public or private entity, to provide 
or pay for any benefit or service, including the use of facilities, 
related to an abortion. Medical procedures, benefits, services, and the 
use of facilities, necessary to save the life of a pregnant woman or to 
address complications related to an abortion are not subject to this 
section.
    (2) Nothing in this section shall be construed to permit a penalty 
to be imposed on any person or individual because such person or 
individual is seeking or has received any benefit or service related to 
a legal abortion. Accordingly, subject to paragraph (d)(1) of this 
section, no person shall be excluded from participation in, be denied 
the benefits of, or be subjected to discrimination under any academic, 
extracurricular, research, occupational training, employment, or other 
educational program or activity operated by a recipient that receives 
Federal financial assistance because such individual has sought or 
received, or is seeking, a legal abortion, or any benefit or service 
related to a legal abortion.



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



Sec.  25.300  Admission.

    (a) General. No person shall, on the basis of sex, be denied 
admission, or be

[[Page 235]]

subjected to discrimination in admission, by any recipient to which 
Sec. Sec.  25.300 through Sec. Sec.  25.310 apply, except as provided in 
Sec. Sec.  25.225 and Sec. Sec.  25.230.
    (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.  25.300 through 25.310 
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.  25.300 through 25.310 apply:
    (1) Shall not apply any rule concerning the actual or potential 
parental, family, or marital status of a student or applicant that 
treats persons differently on the basis of sex;
    (2) Shall not discriminate against or exclude any person on the 
basis of pregnancy, childbirth, termination of pregnancy, or recovery 
therefrom, or establish or follow any rule or practice that so 
discriminates or excludes;
    (3) Subject to Sec.  25.235(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.  25.305  Preference in admission.

    A recipient to which Sec. Sec.  25.300 through 25.310 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.  25.300 through 25.310.



Sec.  25.310  Recruitment.

    (a) Nondiscriminatory recruitment. A recipient to which Sec. Sec.  
25.300 through 25.310 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.  25.110(a), and may choose to undertake 
such efforts as affirmative action pursuant to Sec.  25.110(b).
    (b) Recruitment at certain institutions. A recipient to which 
Sec. Sec.  25.300 through 25.310 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.  25.300 through 25.310.



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



Sec.  25.400  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

[[Page 236]]

receives Federal financial assistance. Sections 25.400 through 25.455 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.  25.300 through 25.310 do not apply, or an entity, not a 
recipient, to which Sec. Sec.  25.300 through 25.310 would not apply if 
the entity were a recipient.
    (b) Specific prohibitions. Except as provided in Sec. Sec.  25.400 
through 25.455, in providing any aid, benefit, or service to a student, 
a recipient shall not, on the basis of sex:
    (1) Treat one person differently from another in determining whether 
such person satisfies any requirement or condition for the provision of 
such aid, benefit, or service;
    (2) Provide different aid, benefits, or services or provide aid, 
benefits, or services in a different manner;
    (3) Deny any person any such aid, benefit, or service;
    (4) Subject any person to separate or different rules of behavior, 
sanctions, or other treatment;
    (5) Apply any rule concerning the domicile or residence of a student 
or applicant, including eligibility for in-state fees and tuition;
    (6) Aid or perpetuate discrimination against any person by providing 
significant assistance to any agency, organization, or person that 
discriminates on the basis of sex in providing any aid, benefit, or 
service to students or employees;
    (7) Otherwise limit any person in the enjoyment of any right, 
privilege, advantage, or opportunity.
    (c) Assistance administered by a recipient educational institution 
to study at a foreign institution. A recipient educational institution 
may administer or assist in the administration of scholarships, 
fellowships, or other awards established by foreign or domestic wills, 
trusts, or similar legal instruments, or by acts of foreign governments 
and restricted to members of one sex, that are designed to provide 
opportunities to study abroad, and that are awarded to students who are 
already matriculating at or who are graduates of the recipient 
institution; Provided, that a recipient educational institution that 
administers or assists in the administration of such scholarships, 
fellowships, or other awards that are restricted to members of one sex 
provides, or otherwise makes available, reasonable opportunities for 
similar studies for members of the other sex. Such opportunities may be 
derived from either domestic or foreign sources.
    (d) Aids, benefits or services not provided by recipient. (1) This 
paragraph (d) applies to any recipient that requires participation by 
any applicant, student, or employee in any education program or activity 
not operated wholly by such recipient, or that facilitates, permits, or 
considers such participation as part of or equivalent to an education 
program or activity operated by such recipient, including participation 
in educational consortia and cooperative employment and student-teaching 
assignments.
    (2) Such recipient:
    (i) Shall develop and implement a procedure designed to assure 
itself that the operator or sponsor of such other education program or 
activity takes no action affecting any applicant, student, or employee 
of such recipient that these Title IX regulations would prohibit such 
recipient from taking; and
    (ii) Shall not facilitate, require, permit, or consider such 
participation if such action occurs.



Sec.  25.405  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.

[[Page 237]]

    (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.  25.410  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.  25.415  Access to course offerings.

    (a) A recipient shall not provide any course or otherwise carry out 
any of its education program or activity separately on the basis of sex, 
or require or refuse participation therein by any of its students on 
such basis, including health, physical education, industrial, business, 
vocational, technical, home economics, music, and adult education 
courses.
    (b)(1) With respect to classes and activities in physical education 
at the elementary school level, the recipient shall comply fully with 
this section as expeditiously as possible but in no event later than one 
year from September 29, 2000. With respect to physical education classes 
and activities at the secondary and post-secondary levels, the recipient 
shall comply fully with this section as expeditiously as possible but in 
no event later than three years from September 29, 2000.
    (2) This section does not prohibit grouping of students in physical 
education classes and activities by ability as assessed by objective 
standards of individual performance developed and applied without regard 
to sex.
    (3) This section does not prohibit separation of students by sex 
within physical education classes or activities during participation in 
wrestling, boxing, rugby, ice hockey, football, basketball, and other 
sports the purpose or major activity of which involves bodily contact.
    (4) Where use of a single standard of measuring skill or progress in 
a physical education class has an adverse effect on members of one sex, 
the recipient shall use appropriate standards that do not have such 
effect.
    (5) Portions of classes in elementary and secondary schools, or 
portions of education programs or activities, that deal exclusively with 
human sexuality may be conducted in separate sessions for boys and 
girls.
    (6) Recipients may make requirements based on vocal range or quality 
that may result in a chorus or choruses of one or predominantly one sex.



Sec.  25.420  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.  25.425  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

[[Page 238]]

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.  25.430  Financial assistance.

    (a) General. Except as provided in paragraphs (b) and (c) of this 
section, in providing financial assistance to any of its students, a 
recipient shall not:
    (1) On the basis of sex, provide different amounts or types of such 
assistance, limit eligibility for such assistance that is of any 
particular type or source, apply different criteria, or otherwise 
discriminate;
    (2) Through solicitation, listing, approval, provision of 
facilities, or other services, assist any foundation, trust, agency, 
organization, or person that provides assistance to any of such 
recipient's students in a manner that discriminates on the basis of sex; 
or
    (3) Apply any rule or assist in application of any rule concerning 
eligibility for such assistance that treats persons of one sex 
differently from persons of the other sex with regard to marital or 
parental status.
    (b) Financial aid established by certain legal instruments. (1) A 
recipient may administer or assist in the administration of 
scholarships, fellowships, or other forms of financial assistance 
established pursuant to domestic or foreign wills, trusts, bequests, or 
similar legal instruments or by acts of a foreign government that 
require that awards be made to members of a particular sex specified 
therein; Provided, that the overall effect of the award of such sex-
restricted scholarships, fellowships, and other forms of financial 
assistance does not discriminate on the basis of sex.
    (2) To ensure nondiscriminatory awards of assistance as required in 
paragraph (b)(1) of this section, recipients shall develop and use 
procedures under which:
    (i) Students are selected for award of financial assistance on the 
basis of nondiscriminatory criteria and not on the basis of availability 
of funds restricted to members of a particular sex;
    (ii) An appropriate sex-restricted scholarship, fellowship, or other 
form of financial assistance is allocated to each student selected under 
paragraph (b)(2)(i) of this section; and
    (iii) No student is denied the award for which he or she was 
selected under paragraph (b)(2)(i) of this section because of the 
absence of a scholarship, fellowship, or other form of financial 
assistance designated for a member of that student's sex.
    (c) Athletic scholarships. (1) To the extent that a recipient awards 
athletic scholarships or grants-in-aid, it must provide reasonable 
opportunities for such awards for members of each sex in proportion to 
the number of students of each sex participating in interscholastic or 
intercollegiate athletics.
    (2) A recipient may provide separate athletic scholarships or 
grants-in-aid for members of each sex as part of separate athletic teams 
for members of each sex to the extent consistent with this paragraph (c) 
and Sec.  25.450.

[[Page 239]]



Sec.  25.435  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.  
25.500 through 25.550.



Sec.  25.440  Health and insurance benefits and services.

    Subject to Sec.  25.235(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.  25.500 through 25.550 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.  25.445  Marital or parental status.

    (a) Status generally. A recipient shall not apply any rule 
concerning a student's actual or potential parental, family, or marital 
status that treats students differently on the basis of sex.
    (b) Pregnancy and related conditions. (1) A recipient shall not 
discriminate against any student, or exclude any student from its 
education program or activity, including any class or extracurricular 
activity, on the basis of such student's pregnancy, childbirth, false 
pregnancy, termination of pregnancy, or recovery therefrom, unless the 
student requests voluntarily to participate in a separate portion of the 
program or activity of the recipient.
    (2) A recipient may require such a student to obtain the 
certification of a physician that the student is physically and 
emotionally able to continue participation as long as such a 
certification is required of all students for other physical or 
emotional conditions requiring the attention of a physician.
    (3) A recipient that operates a portion of its education program or 
activity separately for pregnant students, admittance to which is 
completely voluntary on the part of the student as provided in paragraph 
(b)(1) of this section, shall ensure that the separate portion is 
comparable to that offered to non-pregnant students.
    (4) Subject to Sec.  25.235(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.  25.450  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

[[Page 240]]

or the activity involved is a contact sport. However, where a recipient 
operates or sponsors a team in a particular sport for members of one sex 
but operates or sponsors no such team for members of the other sex, and 
athletic opportunities for members of that sex have previously been 
limited, members of the excluded sex must be allowed to try out for the 
team offered unless the sport involved is a contact sport. For the 
purposes of these Title IX regulations, contact sports include boxing, 
wrestling, rugby, ice hockey, football, basketball, and other sports the 
purpose or major activity of which involves bodily contact.
    (c) Equal opportunity. (1) A recipient that operates or sponsors 
interscholastic, intercollegiate, club, or intramural athletics shall 
provide equal athletic opportunity for members of both sexes. In 
determining whether equal opportunities are available, the designated 
agency official will consider, among other factors:
    (i) Whether the selection of sports and levels of competition 
effectively accommodate the interests and abilities of members of both 
sexes;
    (ii) The provision of equipment and supplies;
    (iii) Scheduling of games and practice time;
    (iv) Travel and per diem allowance;
    (v) Opportunity to receive coaching and academic tutoring;
    (vi) Assignment and compensation of coaches and tutors;
    (vii) Provision of locker rooms, practice, and competitive 
facilities;
    (viii) Provision of medical and training facilities and services;
    (ix) Provision of housing and dining facilities and services;
    (x) Publicity.
    (2) For purposes of paragraph (c)(1) of this section, unequal 
aggregate expenditures for members of each sex or unequal expenditures 
for male and female teams if a recipient operates or sponsors separate 
teams will not constitute noncompliance with this section, but the 
designated agency official may consider the failure to provide necessary 
funds for teams for one sex in assessing equality of opportunity for 
members of each sex.
    (d) Adjustment period. A recipient that operates or sponsors 
interscholastic, intercollegiate, club, or intramural athletics at the 
elementary school level shall comply fully with this section as 
expeditiously as possible but in no event later than one year from 
September 29, 2000. A recipient that operates or sponsors 
interscholastic, intercollegiate, club, or intramural athletics at the 
secondary or postsecondary school level shall comply fully with this 
section as expeditiously as possible but in no event later than three 
years from September 29, 2000.



Sec.  25.455  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.  25.500  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.  25.500 
through 25.550, including relationships with employment and referral 
agencies, with labor unions, and

[[Page 241]]

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.  25.500 through 25.550 
apply to:
    (1) Recruitment, advertising, and the process of application for 
employment;
    (2) Hiring, upgrading, promotion, consideration for and award of 
tenure, demotion, transfer, layoff, termination, application of nepotism 
policies, right of return from layoff, and rehiring;
    (3) Rates of pay or any other form of compensation, and changes in 
compensation;
    (4) Job assignments, classifications, and structure, including 
position descriptions, lines of progression, and seniority lists;
    (5) The terms of any collective bargaining agreement;
    (6) Granting and return from leaves of absence, leave for pregnancy, 
childbirth, false pregnancy, termination of pregnancy, leave for persons 
of either sex to care for children or dependents, or any other leave;
    (7) Fringe benefits available by virtue of employment, whether or 
not administered by the recipient;
    (8) Selection and financial support for training, including 
apprenticeship, professional meetings, conferences, and other related 
activities, selection for tuition assistance, selection for sabbaticals 
and leaves of absence to pursue training;
    (9) Employer-sponsored activities, including social or recreational 
programs; and
    (10) Any other term, condition, or privilege of employment.



Sec.  25.505  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.  25.510  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.  25.500 through 25.550.



Sec.  25.515  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.  25.520  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

[[Page 242]]

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.  
25.550.



Sec.  25.525  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.  25.515.
    (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.  25.530  Marital or parental status.

    (a) General. A recipient shall not apply any policy or take any 
employment action:
    (1) Concerning the potential marital, parental, or family status of 
an employee or applicant for employment that treats persons differently 
on the basis of sex; or
    (2) Which is based upon whether an employee or applicant for 
employment is the head of household or principal wage earner in such 
employee's or applicant's family unit.
    (b) Pregnancy. A recipient shall not discriminate against or exclude 
from employment any employee or applicant for employment on the basis of 
pregnancy, childbirth, false pregnancy, termination of pregnancy, or 
recovery therefrom.
    (c) Pregnancy as a temporary disability. Subject to Sec.  25.235(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.  25.535  Effect of state or local law or other requirements.

    (a) Prohibitory requirements. The obligation to comply with 
Sec. Sec.  25.500 through 25.550 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.  25.540  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.

[[Page 243]]



Sec.  25.545  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.  25.550  Sex as a bona fide occupational qualification.

    A recipient may take action otherwise prohibited by Sec. Sec.  
25.500 through 25.550 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.  25.600  Notice of covered programs.

    Within 60 days of September 29, 2000, each Federal agency that 
awards Federal financial assistance shall publish in the Federal 
Register a notice of the programs covered by these Title IX regulations. 
Each such Federal agency shall periodically republish the notice of 
covered programs to reflect changes in covered programs. Copies of this 
notice also shall be made available upon request to the Federal agency's 
office that enforces Title IX.



Sec.  25.605  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 49 CFR part 21.

[65 FR 52895, Aug. 30, 2000]



PART 26_PARTICIPATION BY DISADVANTAGED BUSINESS ENTERPRISES IN DEPARTMENT
OF TRANSPORTATION FINANCIAL ASSISTANCE PROGRAMS--Table of Contents



                            Subpart A_General

Sec.
26.1 What are the objectives of this part?
26.3 To whom does this part apply?
26.5 What do the terms used in this part mean?
26.7 What discriminatory actions are forbidden?
26.9 How does the Department issue guidance and interpretations under 
          this part?
26.11 What records do recipients keep and report?
26.13 What assurances must recipients and contractors make?
26.15 How can recipients apply for exemptions or waivers?

  Subpart B_Administrative Requirements for DBE Programs for Federally-
                          Assisted Contracting

26.21 Who must have a DBE program?
26.23 What is the requirement for a policy statement?
26.25 What is the requirement for a liaison officer?
26.27 What efforts must recipients make concerning DBE financial 
          institutions?
26.29 What prompt payment mechanisms must recipients have?
26.31 What information must you include in your DBE directory?
26.33 What steps must a recipient take to address overconcentration of 
          DBEs in certain types of work?
26.35 What role do business development and mentor-prot[eacute]g[eacute] 
          programs have in the DBE program?
26.37 What are a recipient's responsibilities for monitoring the 
          performance of other program participants?
26.39 Fostering small business participation.

            Subpart C_Goals, Good Faith Efforts, and Counting

26.41 What is the role of the statutory 10 percent goal in this program?

[[Page 244]]

26.43 Can recipients use set-asides or quotas as part of this program?
26.45 How do recipients set overall goals?
26.47 Can recipients be penalized for failing to meet overall goals?
26.49 How are overall goals established for transit vehicle 
          manufacturers?
26.51 What means do recipients use to meet overall goals?
26.53 What are the good faith efforts procedures recipients follow in 
          situations where there are contract goals?
26.55 How is DBE participation counted toward goals?

                    Subpart D_Certification Standards

26.61 How are burdens of proof allocated in the certification process?
26.63 What rules govern group membership determinations?
26.65 What rules govern business size determinations?
26.67 What rules determine social and economic disadvantage?
26.69 What rules govern determinations of ownership?
26.71 What rules govern determinations concerning control?
26.73 What are other rules affecting certification?

                   Subpart E_Certification Procedures

26.81 What are the requirements for Unified Certification Programs?
26.83 What procedures do recipients follow in making certification 
          decisions?
26.85 Interstate certification.
26.86 What rules govern recipients' denials of initial requests for 
          certification?
26.87 What procedures does a recipient use to remove a DBE's 
          eligibility?
26.88 Summary suspension of certification.
26.89 What is the process for certification appeals to the Department of 
          Transportation?
26.91 What actions do recipients take following DOT certification appeal 
          decisions?

                  Subpart F_Compliance and Enforcement

26.101 What compliance procedures apply to recipients?
26.103 What enforcement actions apply in FHWA and FTA programs?
26.105 What enforcement actions apply in FAA programs?
26.107 What enforcement actions apply to firms participating in the DBE 
          program?
26.109 What are the rules governing information, confidentiality, 
          cooperation, and intimidation or retaliation?

Appendix A to Part 26--Guidance Concerning Good Faith Efforts
Appendix B to Part 26-- Uniform Report of DBE Awards or Commitments and 
          Payments Form
Appendix C to Part 26--DBE Business Development Program Guidelines
Appendix D to Part 26--Mentor-Prot[eacute]g[eacute] Program Guidelines
Appendix E to Part 26--Individual Determinations of Social and Economic 
          Disadvantage
Appendix F to Part 26--Uniform Certification Application Form
Appendix G to Part 26--Personal Net Worth Statement

    Authority: 23 U.S.C. 324; 42 U.S.C. 2000d, et seq.; Sec. 1101(b), 
Pub. L. 114-94, 129 Stat. 1312, 1324; 49 U.S.C. 47113, 47123; Sec. 150, 
Pub. L. 115-254, 132 Stat. 3215.

    Source: 64 FR 5126, Feb. 2, 1999, unless otherwise noted.



                            Subpart A_General



Sec.  26.1  What are the objectives of this part?

    This part seeks to achieve several objectives:
    (a) To ensure nondiscrimination in the award and administration of 
DOT-assisted contracts in the Department's highway, transit, and airport 
financial assistance programs;
    (b) To create a level playing field on which DBEs can compete fairly 
for DOT-assisted contracts;
    (c) To ensure that the Department's DBE program is narrowly tailored 
in accordance with applicable law;
    (d) To ensure that only firms that fully meet this part's 
eligibility standards are permitted to participate as DBEs;
    (e) To help remove barriers to the participation of DBEs in DOT-
assisted contracts;
    (f) To promote the use of DBEs in all types of federally-assisted 
contracts and procurement activities conducted by recipients.
    (g) To assist the development of firms that can compete successfully 
in the marketplace outside the DBE program; and
    (h) To provide appropriate flexibility to recipients of Federal 
financial assistance in establishing and providing opportunities for 
DBEs.

[64 FR 5126, Feb. 2, 1999, as amended at 79 FR 59592, Oct. 2, 2014]

[[Page 245]]



Sec.  26.3  To whom does this part apply?

    (a) If you are a recipient of any of the following types of funds, 
this part applies to you:
    (1) Federal-aid highway funds authorized under Titles I (other than 
Part B) and V of the Intermodal Surface Transportation Efficiency Act of 
1991 (ISTEA), Pub. L. 102-240, 105 Stat. 1914, or Titles I, III, and V 
of the Transportation Equity Act for the 21st Century (TEA-21), Pub. L. 
105-178, 112 Stat. 107. Titles I, III, and V of the Safe, Accountable, 
Flexible, Efficient Transportation Equity Act: A Legacy for Users 
(SAFETEA-LU), Pub. L. 109-59, 119 Stat. 1144; and Divisions A and B of 
the Moving Ahead for Progress in the 21st Century Act (MAP-21), Pub. L. 
112-141, 126 Stat. 405.
    (2) Federal transit funds authorized by Titles I, III, V and VI of 
ISTEA, Pub. L. 102-240 or by Federal transit laws in Title 49, U.S. 
Code, or Titles I, III, and V of the TEA-21, Pub. L. 105-178. Titles I, 
III, and V of the Safe, Accountable, Flexible, Efficient Transportation 
Equity Act: A Legacy for Users (SAFETEA-LU), Pub. L. 109-59, 119 Stat. 
1144; and Divisions A and B of the Moving Ahead for Progress in the 21st 
Century Act (MAP-21), Pub. L. 112-141, 126 Stat. 405.
    (3) Airport funds authorized by 49 U.S.C. 47101, et seq.
    (b) [Reserved]
    (c) If you are letting a contract, and that contract is to be 
performed entirely outside the United States, its territories and 
possessions, Puerto Rico, Guam, or the Northern Marianas Islands, this 
part does not apply to the contract.
    (d) If you are letting a contract in which DOT financial assistance 
does not participate, this part does not apply to the contract.

[64 FR 5126, Feb. 2, 1999, as amended at 79 FR 59592, Oct. 2, 2014]



Sec.  26.5  What do the terms used in this part mean?

    Affiliation has the same meaning the term has in the Small Business 
Administration (SBA) regulations, 13 CFR part 121.
    (1) Except as otherwise provided in 13 CFR part 121, concerns are 
affiliates of each other when, either directly or indirectly:
    (i) One concern controls or has the power to control the other; or
    (ii) A third party or parties controls or has the power to control 
both; or
    (iii) An identity of interest between or among parties exists such 
that affiliation may be found.
    (2) In determining whether affiliation exists, it is necessary to 
consider all appropriate factors, including common ownership, common 
management, and contractual relationships. Affiliates must be considered 
together in determining whether a concern meets small business size 
criteria and the statutory cap on the participation of firms in the DBE 
program.
    Alaska Native means a citizen of the United States who is a person 
of one-fourth degree or more Alaskan Indian (including Tsimshian Indians 
not enrolled in the Metlaktla Indian Community), Eskimo, or Aleut blood, 
or a combination of those bloodlines. The term includes, in the absence 
of proof of a minimum blood quantum, any citizen whom a Native village 
or Native group regards as an Alaska Native if their father or mother is 
regarded as an Alaska Native.
    Alaska Native Corporation (ANC) means any Regional Corporation, 
Village Corporation, Urban Corporation, or Group Corporation organized 
under the laws of the State of Alaska in accordance with the Alaska 
Native Claims Settlement Act, as amended (43 U.S.C. 1601, et seq.).
    Assets mean all the property of a person available for paying debts 
or for distribution, including one's respective share of jointly held 
assets. This includes, but is not limited to, cash on hand and in banks, 
savings accounts, IRA or other retirement accounts, accounts receivable, 
life insurance, stocks and bonds, real estate, and personal property.
    Business, business concern or business enterprise means an entity 
organized for profit with a place of business located in the United 
States, and which operates primarily within the United States or which 
makes a significant contribution to the United States economy through 
payment of taxes or use

[[Page 246]]

of American products, materials, or labor.
    Compliance means that a recipient has correctly implemented the 
requirements of this part.
    Contingent Liability means a liability that depends on the 
occurrence of a future and uncertain event. This includes, but is not 
limited to, guaranty for debts owed by the applicant concern, legal 
claims and judgments, and provisions for federal income tax.
    Contract means a legally binding relationship obligating a seller to 
furnish supplies or services (including, but not limited to, 
construction and professional services) and the buyer to pay for them. 
For purposes of this part, a lease is considered to be a contract.
    Contractor means one who participates, through a contract or 
subcontract (at any tier), in a DOT-assisted highway, transit, or 
airport program.
    Days mean calendar days. In computing any period of time described 
in this part, the day from which the period begins to run is not 
counted, and when the last day of the period is a Saturday, Sunday, or 
Federal holiday, the period extends to the next day that is not a 
Saturday, Sunday, or Federal holiday. Similarly, in circumstances where 
the recipient's offices are closed for all or part of the last day, the 
period extends to the next day on which the agency is open.
    Department or DOT means the U.S. Department of Transportation, 
including the Office of the Secretary, the Federal Highway 
Administration (FHWA), the Federal Transit Administration (FTA), and the 
Federal Aviation Administration (FAA).
    Disadvantaged business enterprise or DBE means a for-profit small 
business concern--
    (1) That is at least 51 percent owned by one or more individuals who 
are both socially and economically disadvantaged or, in the case of a 
corporation, in which 51 percent of the stock is owned by one or more 
such individuals; and
    (2) Whose management and daily business operations are controlled by 
one or more of the socially and economically disadvantaged individuals 
who own it.
    DOT-assisted contract means any contract between a recipient and a 
contractor (at any tier) funded in whole or in part with DOT financial 
assistance, including letters of credit or loan guarantees, except a 
contract solely for the purchase of land.
    Good faith efforts means efforts to achieve a DBE goal or other 
requirement of this part which, by their scope, intensity, and 
appropriateness to the objective, can reasonably be expected to fulfill 
the program requirement.
    Home state means the state in which a DBE firm or applicant for DBE 
certification maintains its principal place of business.
    Immediate family member means father, mother, husband, wife, son, 
daughter, brother, sister, grandfather, grandmother, father-in-law, 
mother-in-law, sister-in-law, brother-in-law, and domestic partner and 
civil unions recognized under State law.
    Indian tribe means any Indian tribe, band, nation, or other 
organized group or community of Indians, including any ANC, which is 
recognized as eligible for the special programs and services provided by 
the United States to Indians because of their status as Indians, or is 
recognized as such by the State in which the tribe, band, nation, group, 
or community resides. See definition of ``tribally-owned concern'' in 
this section.
    Joint venture means an association of a DBE firm and one or more 
other firms to carry out a single, for-profit business enterprise, for 
which the parties combine their property, capital, efforts, skills and 
knowledge, and in which the DBE is responsible for a distinct, clearly 
defined portion of the work of the contract and whose share in the 
capital contribution, control, management, risks, and profits of the 
joint venture are commensurate with its ownership interest.
    Liabilities mean financial or pecuniary obligations. This includes, 
but is not limited to, accounts payable, notes payable to bank or 
others, installment accounts, mortgages on real estate, and unpaid 
taxes.
    Native Hawaiian means any individual whose ancestors were natives, 
prior to 1778, of the area which now comprises the State of Hawaii.

[[Page 247]]

    Native Hawaiian Organization means any community service 
organization serving Native Hawaiians in the State of Hawaii which is a 
not-for-profit organization chartered by the State of Hawaii, is 
controlled by Native Hawaiians, and whose business activities will 
principally benefit such Native Hawaiians.
    Noncompliance means that a recipient has not correctly implemented 
the requirements of this part.
    Operating Administration or OA means any of the following parts of 
DOT: the Federal Aviation Administration (FAA), Federal Highway 
Administration (FHWA), and Federal Transit Administration (FTA). The 
``Administrator'' of an operating administration includes his or her 
designees.
    Personal net worth means the net value of the assets of an 
individual remaining after total liabilities are deducted. An 
individual's personal net worth does not include: The individual's 
ownership interest in an applicant or participating DBE firm; or the 
individual's equity in his or her primary place of residence. An 
individual's personal net worth includes only his or her own share of 
assets held jointly or as community property with the individual's 
spouse.
    Primary industry classification means the most current North 
American Industry Classification System (NAICS) designation which best 
describes the primary business of a firm. The NAICS is described in the 
North American Industry Classification Manual--United States, which is 
available on the Internet at the U.S. Census Bureau Web site: http://
www.census.gov/eos/www/naics/.
    Primary recipient means a recipient which receives DOT financial 
assistance and passes some or all of it on to another recipient.
    Principal place of business means the business location where the 
individuals who manage the firm's day-to-day operations spend most 
working hours. If the offices from which management is directed and 
where the business records are kept are in different locations, the 
recipient will determine the principal place of business.
    Program means any undertaking on a recipient's part to use DOT 
financial assistance, authorized by the laws to which this part applies.
    Race-conscious measure or program is one that is focused 
specifically on assisting only DBEs, including women-owned DBEs.
    Race-neutral measure or program is one that is, or can be, used to 
assist all small businesses. For the purposes of this part, race-neutral 
includes gender-neutrality.
    Recipient is any entity, public or private, to which DOT financial 
assistance is extended, whether directly or through another recipient, 
through the programs of the FAA, FHWA, or FTA, or who has applied for 
such assistance.
    Secretary means the Secretary of Transportation or his/her designee.
    Set-aside means a contracting practice restricting eligibility for 
the competitive award of a contract solely to DBE firms.
    Small Business Administration or SBA means the United States Small 
Business Administration.
    SBA certified firm refers to firms that have a current, valid 
certification from or recognized by the SBA under the 8(a) BD or SDB 
programs.
    Small business concern means, with respect to firms seeking to 
participate as DBEs in DOT-assisted contracts, a small business concern 
as defined pursuant to section 3 of the Small Business Act and Small 
Business Administration regulations implementing it (13 CFR part 121) 
that also does not exceed the cap on average annual gross receipts 
specified in Sec.  26.65(b).
    Socially and economically disadvantaged individual means any 
individual who is a citizen (or lawfully admitted permanent resident) of 
the United States and who has been subjected to racial or ethnic 
prejudice or cultural bias within American society because of his or her 
identity as a members of groups and without regard to his or her 
individual qualities. The social disadvantage must stem from 
circumstances beyond the individual's control.
    (1) Any individual who a recipient finds to be a socially and 
economically disadvantaged individual on a case-by-

[[Page 248]]

case basis. An individual must demonstrate that he or she has held 
himself or herself out, as a member of a designated group if you require 
it.
    (2) Any individual in the following groups, members of which are 
rebuttably presumed to be socially and economically disadvantaged:
    (i) ``Black Americans,'' which includes persons having origins in 
any of the Black racial groups of Africa;
    (ii) ``Hispanic Americans,'' which includes persons of Mexican, 
Puerto Rican, Cuban, Dominican, Central or South American, or other 
Spanish or Portuguese culture or origin, regardless of race;
    (iii) ``Native Americans,'' which includes persons who are enrolled 
members of a federally or State recognized Indian tribe, Alaska Natives, 
or Native Hawaiians;
    (iv) ``Asian-Pacific Americans,'' which includes persons whose 
origins are from Japan, China, Taiwan, Korea, Burma (Myanmar), Vietnam, 
Laos, Cambodia (Kampuchea), Thailand, Malaysia, Indonesia, the 
Philippines, Brunei, Samoa, Guam, the U.S. Trust Territories of the 
Pacific Islands (Republic of Palau), Republic of the Northern Marianas 
Islands, Samoa, Macao, Fiji, Tonga, Kirbati, Tuvalu, Nauru, Federated 
States of Micronesia, or Hong Kong;
    (v) ``Subcontinent Asian Americans,'' which includes persons whose 
origins are from India, Pakistan, Bangladesh, Bhutan, the Maldives 
Islands, Nepal or Sri Lanka;
    (vi) Women;
    (vii) Any additional groups whose members are designated as socially 
and economically disadvantaged by the SBA, at such time as the SBA 
designation becomes effective.
    (3) Being born in a particular country does not, standing alone, 
mean that a person is necessarily a member of one of the groups listed 
in this definition.
    Spouse means a married person, including a person in a domestic 
partnership or a civil union recognized under State law.
    Transit vehicle manufacturer means any manufacturer whose primary 
business purpose is to manufacture vehicles specifically built for 
public mass transportation. Such vehicles include, but are not limited 
to: Buses, rail cars, trolleys, ferries, and vehicles manufactured 
specifically for paratransit purposes. Producers of vehicles that 
receive post-production alterations or retrofitting to be used for 
public transportation purposes (e.g., so-called cutaway vehicles, vans 
customized for service to people with disabilities) are also considered 
transit vehicle manufacturers. Businesses that manufacture, mass-
produce, or distribute vehicles solely for personal use and for sale 
``off the lot'' are not considered transit vehicle manufacturers.
    Tribally-owned concern means any concern at least 51 percent owned 
by an Indian tribe as defined in this section.
    You refers to a recipient, unless a statement in the text of this 
part or the context requires otherwise (i.e., `You must do XYZ' means 
that recipients must do XYZ).

[64 FR 5126, Feb. 2, 1999, as amended at 64 FR 34570, June 28, 1999; 68 
FR 35553, June 16, 2003; 76 FR 5096, Jan. 28, 2011; 79 FR 59592, Oct. 2, 
2014]



Sec.  26.7  What discriminatory actions are forbidden?

    (a) You must never exclude any person from participation in, deny 
any person the benefits of, or otherwise discriminate against anyone in 
connection with the award and performance of any contract covered by 
this part on the basis of race, color, sex, or national origin.
    (b) In administering your DBE program, you must not, directly or 
through contractual or other arrangements, use criteria or methods of 
administration that have the effect of defeating or substantially 
impairing accomplishment of the objectives of the program with respect 
to individuals of a particular race, color, sex, or national origin.



Sec.  26.9  How does the Department issue guidance and interpretations
under this part?

    (a) Only guidance and interpretations (including interpretations set 
forth in certification appeal decisions) consistent with this part 26 
and issued after March 4, 1999 express the official positions and views 
of the Department

[[Page 249]]

of Transportation or any of its operating administrations.
    (b) The Secretary of Transportation, Office of the Secretary of 
Transportation, FHWA, FTA, and FAA may issue written interpretations of 
or written guidance concerning this part. Written interpretations and 
guidance are valid, and express the official positions and views of the 
Department of Transportation or any of its operating administrations, 
only if they are issued over the signature of the Secretary of 
Transportation or if they contain the following statement:

    The General Counsel of the Department of Transportation has reviewed 
this document and approved it as consistent with the language and intent 
of 49 CFR part 26.

[72 FR 15617, Apr. 2, 2007]



Sec.  26.11  What records do recipients keep and report?

    (a) You must transmit the Uniform Report of DBE Awards or 
Commitments and Payments, found in Appendix B to this part, at the 
intervals stated on the form.
    (b) You must continue to provide data about your DBE program to the 
Department as directed by DOT operating administrations.
    (c) You must create and maintain a bidders list.
    (1) The purpose of this list is to provide you as accurate data as 
possible about the universe of DBE and non-DBE contractors and 
subcontractors who seek to work on your Federally-assisted contracts for 
use in helping you set your overall goals.
    (2) You must obtain the following information about DBE and non-DBE 
contractors and subcontractors who seek to work on your Federally-
assisted contracts:
    (i) Firm name;
    (ii) Firm address;
    (iii) Firm's status as a DBE or non-DBE;
    (iv) Age of the firm; and
    (v) The annual gross receipts of the firm. You may obtain this 
information by asking each firm to indicate into what gross receipts 
bracket they fit (e.g., less than $500,000; $500,000-$1 million; $1-2 
million; $2-5 million; etc.) rather than requesting an exact figure from 
the firm.
    (3) You may acquire the information for your bidders list in a 
variety of ways. For example, you can collect the data from all bidders, 
before or after the bid due date. You can conduct a survey that will 
result in statistically sound estimate of the universe of DBE and non-
DBE contractors and subcontractors who seek to work on your Federally-
assisted contracts. You may combine different data collection approaches 
(e.g., collect name and address information from all bidders, while 
conducting a survey with respect to age and gross receipts information).
    (d) You must maintain records documenting a firm's compliance with 
the requirements of this part. At a minimum, you must keep a complete 
application package for each certified firm and all affidavits of no-
change, change notices, and on-site reviews. These records must be 
retained in accordance with applicable record retention requirements for 
the recipient's financial assistance agreement. Other certification or 
compliance related records must be retained for a minimum of three (3) 
years unless otherwise provided by applicable record retention 
requirements for the recipient's financial assistance agreement, 
whichever is longer.
    (e) The State department of transportation in each UCP established 
pursuant to Sec.  26.81 of this part must report to the Department of 
Transportation's Office of Civil Rights, by January 1, 2015, and each 
year thereafter, the percentage and location in the State of certified 
DBE firms in the UCP Directory controlled by the following:
    (1) Women;
    (2) Socially and economically disadvantaged individuals (other than 
women); and
    (3) Individuals who are women and are otherwise socially and 
economically disadvantaged individuals.

[64 FR 5126, Feb. 2, 1999, as amended at 65 FR 68951, Nov. 15, 2000; 76 
FR 5096, Jan. 28, 2011; 79 FR 59593, Oct. 2, 2014]



Sec.  26.13  What assurances must recipients and contractors make?

    (a) Each financial assistance agreement you sign with a DOT 
operating administration (or a primary recipient) must include the 
following assurance:

[[Page 250]]

The recipient shall not discriminate on the basis of race, color, 
national origin, or sex in the award and performance of any DOT-assisted 
contract or in the administration of its DBE program or the requirements 
49 CFR part 26. The recipient shall take all necessary and reasonable 
steps under 49 CFR part 26 to ensure nondiscrimination in the award and 
administration of DOT-assisted contracts. The recipient's DBE program, 
as required by 49 CFR part 26 and as approved by DOT, is incorporated by 
reference in this agreement. Implementation of this program is a legal 
obligation and failure to carry out its terms shall be treated as a 
violation of this agreement. Upon notification to the recipient of its 
failure to carry out its approved program, the Department may impose 
sanctions as provided for under 49 CFR part 26 and may, in appropriate 
cases, refer the matter for enforcement under 18 U.S.C. 1001 and/or the 
Program Fraud Civil Remedies Act of 1986 (31 U.S.C. 3801 et seq.).
    (b) Each contract you sign with a contractor (and each subcontract 
the prime contractor signs with a subcontractor) must include the 
following assurance: The contractor, sub recipient or subcontractor 
shall not discriminate on the basis of race, color, national origin, or 
sex in the performance of this contract. The contractor shall carry out 
applicable requirements of 49 CFR part 26 in the award and 
administration of DOT-assisted contracts. Failure by the contractor to 
carry out these requirements is a material breach of this contract, 
which may result in the termination of this contract or such other 
remedy as the recipient deems appropriate, which may include, but is not 
limited to:
    (1) Withholding monthly progress payments;
    (2) Assessing sanctions;
    (3) Liquidated damages; and/or
    (4) Disqualifying the contractor from future bidding as non-
responsible.

[79 FR 59593, Oct. 2, 2014]



Sec.  26.15  How can recipients apply for exemptions or waivers?

    (a) You can apply for an exemption from any provision of this part. 
To apply, you must request the exemption in writing from the Office of 
the Secretary of Transportation, FHWA, FTA, or FAA. The Secretary will 
grant the request only if it documents special or exceptional 
circumstances, not likely to be generally applicable, and not 
contemplated in connection with the rulemaking that established this 
part, that make your compliance with a specific provision of this part 
impractical. You must agree to take any steps that the Department 
specifies to comply with the intent of the provision from which an 
exemption is granted. The Secretary will issue a written response to all 
exemption requests.
    (b) You can apply for a waiver of any provision of Subpart B or C of 
this part including, but not limited to, any provisions regarding 
administrative requirements, overall goals, contract goals or good faith 
efforts. Program waivers are for the purpose of authorizing you to 
operate a DBE program that achieves the objectives of this part by means 
that may differ from one or more of the requirements of Subpart B or C 
of this part. To receive a program waiver, you must follow these 
procedures:
    (1) You must apply through the concerned operating administration. 
The application must include a specific program proposal and address how 
you will meet the criteria of paragraph (b)(2) of this section. Before 
submitting your application, you must have had public participation in 
developing your proposal, including consultation with the DBE community 
and at least one public hearing. Your application must include a summary 
of the public participation process and the information gathered through 
it.
    (2) Your application must show that--
    (i) There is a reasonable basis to conclude that you could achieve a 
level of DBE participation consistent with the objectives of this part 
using different or innovative means other than those that are provided 
in subpart B or C of this part;
    (ii) Conditions in your jurisdiction are appropriate for 
implementing the proposal;
    (iii) Your proposal would prevent discrimination against any 
individual or

[[Page 251]]

group in access to contracting opportunities or other benefits of the 
program; and
    (iv) Your proposal is consistent with applicable law and program 
requirements of the concerned operating administration's financial 
assistance program.
    (3) The Secretary has the authority to approve your application. If 
the Secretary grants your application, you may administer your DBE 
program as provided in your proposal, subject to the following 
conditions:
    (i) DBE eligibility is determined as provided in subparts D and E of 
this part, and DBE participation is counted as provided in Sec.  26.49;
    (ii) Your level of DBE participation continues to be consistent with 
the objectives of this part;
    (iii) There is a reasonable limitation on the duration of your 
modified program; and
    (iv) Any other conditions the Secretary makes on the grant of the 
waiver.
    (4) The Secretary may end a program waiver at any time and require 
you to comply with this part's provisions. The Secretary may also extend 
the waiver, if he or she determines that all requirements of paragraphs 
(b)(2) and (3) of this section continue to be met. Any such extension 
shall be for no longer than period originally set for the duration of 
the program.



  Subpart B_Administrative Requirements for DBE Programs for Federally-
                          Assisted Contracting



Sec.  26.21  Who must have a DBE program?

    (a) If you are in one of these categories and let DOT-assisted 
contracts, you must have a DBE program meeting the requirements of this 
part:
    (1) All FHWA primary recipients receiving funds authorized by a 
statute to which this part applies;
    (2) FTA recipients receiving planning, capital and/or operating 
assistance who will award prime contracts (excluding transit vehicle 
purchases) the cumulative total value of which exceeds $250,000 in FTA 
funds in a Federal fiscal year;
    (3) FAA recipients receiving grants for airport planning or 
development who will award prime contracts the cumulative total value of 
which exceeds $250,000 in FAA funds in a Federal fiscal year.
    (b)(1) You must submit a DBE program conforming to this part by 
August 31, 1999 to the concerned operating administration (OA). Once the 
OA has approved your program, the approval counts for all of your DOT-
assisted programs (except that goals are reviewed by the particular 
operating administration that provides funding for your DOT-assisted 
contracts).
    (2) You do not have to submit regular updates of your DBE programs, 
as long as you remain in compliance. However, you must submit 
significant changes in the program for approval.
    (c) You are not eligible to receive DOT financial assistance unless 
DOT has approved your DBE program and you are in compliance with it and 
this part. You must continue to carry out your program until all funds 
from DOT financial assistance have been expended.

[64 FR 5126, Feb. 2, 1999, as amended at 64 FR 34570, June 28, 1999; 65 
FR 68951, Nov. 15, 2000; 79 FR 59593, Oct. 2, 2014]



Sec.  26.23  What is the requirement for a policy statement?

    You must issue a signed and dated policy statement that expresses 
your commitment to your DBE program, states its objectives, and outlines 
responsibilities for its implementation. You must circulate the 
statement throughout your organization and to the DBE and non-DBE 
business communities that perform work on your DOT-assisted contracts.



Sec.  26.25  What is the requirement for a liaison officer?

    You must have a DBE liaison officer, who shall have direct, 
independent access to your Chief Executive Officer concerning DBE 
program matters. The liaison officer shall be responsible for 
implementing all aspects of your DBE program. You must also have 
adequate staff to administer the program in compliance with this part.

[[Page 252]]



Sec.  26.27  What efforts must recipients make concerning DBE financial
institutions?

    You must thoroughly investigate the full extent of services offered 
by financial institutions owned and controlled by socially and 
economically disadvantaged individuals in your community and make 
reasonable efforts to use these institutions. You must also encourage 
prime contractors to use such institutions.



Sec.  26.29  What prompt payment mechanisms must recipients have?

    (a) You must establish, as part of your DBE program, a contract 
clause to require prime contractors to pay subcontractors for 
satisfactory performance of their contracts no later than 30 days from 
receipt of each payment you make to the prime contractor.
    (b) You must ensure prompt and full payment of retainage from the 
prime contractor to the subcontractor within 30 days after the 
subcontractor's work is satisfactorily completed. You must use one of 
the following methods to comply with this requirement:
    (1) You may decline to hold retainage from prime contractors and 
prohibit prime contractors from holding retainage from subcontractors.
    (2) You may decline to hold retainage from prime contractors and 
require a contract clause obligating prime contractors to make prompt 
and full payment of any retainage kept by prime contractor to the 
subcontractor within 30 days after the subcontractor's work is 
satisfactorily completed.
    (3) You may hold retainage from prime contractors and provide for 
prompt and regular incremental acceptances of portions of the prime 
contract, pay retainage to prime contractors based on these acceptances, 
and require a contract clause obligating the prime contractor to pay all 
retainage owed to the subcontractor for satisfactory completion of the 
accepted work within 30 days after your payment to the prime contractor.
    (c) For purposes of this section, a subcontractor's work is 
satisfactorily completed when all the tasks called for in the 
subcontract have been accomplished and documented as required by the 
recipient. When a recipient has made an incremental acceptance of a 
portion of a prime contract, the work of a subcontractor covered by that 
acceptance is deemed to be satisfactorily completed.
    (d) Your DBE program must provide appropriate means to enforce the 
requirements of this section. These means may include appropriate 
penalties for failure to comply, the terms and conditions of which you 
set. Your program may also provide that any delay or postponement of 
payment among the parties may take place only for good cause, with your 
prior written approval.
    (e) You may also establish, as part of your DBE program, any of the 
following additional mechanisms to ensure prompt payment:
    (1) A contract clause that requires prime contractors to include in 
their subcontracts language providing that prime contractors and 
subcontractors will use appropriate alternative dispute resolution 
mechanisms to resolve payment disputes. You may specify the nature of 
such mechanisms.
    (2) A contract clause providing that the prime contractor will not 
be reimbursed for work performed by subcontractors unless and until the 
prime contractor ensures that the subcontractors are promptly paid for 
the work they have performed.
    (3) Other mechanisms, consistent with this part and applicable state 
and local law, to ensure that DBEs and other contractors are fully and 
promptly paid.

[68 FR 35553, June 16, 2003]



Sec.  26.31  What information must you include in your DBE directory?

    (a) In the directory required under Sec.  26.81(g) of this Part, you 
must list all firms eligible to participate as DBEs in your program. In 
the listing for each firm, you must include its address, phone number, 
and the types of work the firm has been certified to perform as a DBE.
    (b) You must list each type of work for which a firm is eligible to 
be certified by using the most specific NAICS code available to describe 
each type of work. You must make any changes to

[[Page 253]]

your current directory entries necessary to meet the requirement of this 
paragraph (a) by August 26, 2011.

[76 FR 5096, Jan. 28, 2011]



Sec.  26.33  What steps must a recipient take to address overconcentration
of DBEs in certain types of work?

    (a) If you determine that DBE firms are so overconcentrated in a 
certain type of work as to unduly burden the opportunity of non-DBE 
firms to participate in this type of work, you must devise appropriate 
measures to address this overconcentration.
    (b) These measures may include the use of incentives, technical 
assistance, business development programs, mentor-prot[eacute]g[eacute] 
programs, and other appropriate measures designed to assist DBEs in 
performing work outside of the specific field in which you have 
determined that non-DBEs are unduly burdened. You may also consider 
varying your use of contract goals, to the extent consistent with Sec.  
26.51, to unsure that non-DBEs are not unfairly prevented from competing 
for subcontracts.
    (c) You must obtain the approval of the concerned DOT operating 
administration for your determination of overconcentration and the 
measures you devise to address it. Once approved, the measures become 
part of your DBE program.



Sec.  26.35  What role do business development and
mentor-prot[eacute]g[eacute] programs have in the DBE program?

    (a) You may or, if an operating administration directs you to, you 
must establish a DBE business development program (BDP) to assist firms 
in gaining the ability to compete successfully in the marketplace 
outside the DBE program. You may require a DBE firm, as a condition of 
receiving assistance through the BDP, to agree to terminate its 
participation in the DBE program after a certain time has passed or 
certain objectives have been reached. See Appendix C of this part for 
guidance on administering BDP programs.
    (b) As part of a BDP or separately, you may establish a ``mentor-
prot[eacute]g[eacute]'' program, in which another DBE or non-DBE firm is 
the principal source of business development assistance to a DBE firm.
    (1) Only firms you have certified as DBEs before they are proposed 
for participation in a mentor-prot[eacute]g[eacute] program are eligible 
to participate in the mentor-prot[eacute]g[eacute] program.
    (2) During the course of the mentor-prot[eacute]g[eacute] 
relationship, you must:
    (i) Not award DBE credit to a non-DBE mentor firm for using its own 
prot[eacute]g[eacute] firm for more than one half of its goal on any 
contract let by the recipient; and
    (ii) Not award DBE credit to a non-DBE mentor firm for using its own 
prot[eacute]g[eacute] firm for more than every other contract performed 
by the prot[eacute]g[eacute] firm.
    (3) For purposes of making determinations of business size under 
this part, you must not treat prot[eacute]g[eacute] firms as affiliates 
of mentor firms, when both firms are participating under an approved 
mentor-prot[eacute]g[eacute] program. See Appendix D of this part for 
guidance concerning the operation of mentor-prot[eacute]g[eacute] 
programs.
    (c) Your BDPs and mentor-prot[eacute]g[eacute] programs must be 
approved by the concerned operating administration before you implement 
them. Once approved, they become part of your DBE program.



Sec.  26.37  What are a recipient's responsibilities for monitoring the 
performance of other program participants?

    (a) You must implement appropriate mechanisms to ensure compliance 
with the part's requirements by all program participants (e.g., applying 
legal and contract remedies available under Federal, state and local 
law). You must set forth these mechanisms in your DBE program.
    (b) Your DBE program must also include a monitoring and enforcement 
mechanism to ensure that work committed to DBEs at contract award or 
subsequently (e.g., as the result of modification to the contract) is 
actually performed by the DBEs to which the work was committed. This 
mechanism must include a written certification that you have reviewed 
contracting records and monitored work sites in your state for this 
purpose. The

[[Page 254]]

monitoring to which this paragraph refers may be conducted in 
conjunction with monitoring of contract performance for other purposes 
(e.g., close-out reviews for a contract).
    (c) This mechanism must provide for a running tally of actual DBE 
attainments (e.g., payments actually made to DBE firms), including a 
means of comparing these attainments to commitments. In your reports of 
DBE participation to the Department, you must display both commitments 
and attainments.

[64 FR 5126, Feb. 2, 1999, as amended at 65 FR 68951, Nov. 15, 2000; 68 
FR 35554, June 16, 2003; 76 FR 5097, Jan. 28, 2011]



Sec.  26.39  Fostering small business participation.

    (a) Your DBE program must include an element to structure 
contracting requirements to facilitate competition by small business 
concerns, taking all reasonable steps to eliminate obstacles to their 
participation, including unnecessary and unjustified bundling of 
contract requirements that may preclude small business participation in 
procurements as prime contractors or subcontractors.
    (b) This element must be submitted to the appropriate DOT operating 
administration for approval as a part of your DBE program by February 
28, 2012. As part of this program element you may include, but are not 
limited to, the following strategies:
    (1) Establishing a race-neutral small business set-aside for prime 
contracts under a stated amount (e.g., $1 million).
    (2) In multi-year design-build contracts or other large contracts 
(e.g., for ``megaprojects'') requiring bidders on the prime contract to 
specify elements of the contract or specific subcontracts that are of a 
size that small businesses, including DBEs, can reasonably perform.
    (3) On prime contracts not having DBE contract goals, requiring the 
prime contractor to provide subcontracting opportunities of a size that 
small businesses, including DBEs, can reasonably perform, rather than 
self-performing all the work involved.
    (4) Identifying alternative acquisition strategies and structuring 
procurements to facilitate the ability of consortia or joint ventures 
consisting of small businesses, including DBEs, to compete for and 
perform prime contracts.
    (5) To meet the portion of your overall goal you project to meet 
through race-neutral measures, ensuring that a reasonable number of 
prime contracts are of a size that small businesses, including DBEs, can 
reasonably perform.
    (c) You must actively implement your program elements to foster 
small business participation. Doing so is a requirement of good faith 
implementation of your DBE program.

[76 FR 5097, Jan. 28, 2011]



            Subpart C_Goals, Good Faith Efforts, and Counting



Sec.  26.41  What is the role of the statutory 10 percent goal in 
this program?

    (a) The statutes authorizing this program provide that, except to 
the extent the Secretary determines otherwise, not less than 10 percent 
of the authorized funds are to be expended with DBEs.
    (b) This 10 percent goal is an aspirational goal at the national 
level, which the Department uses as a tool in evaluating and monitoring 
DBEs' opportunities to participate in DOT-assisted contracts.
    (c) The national 10 percent goal does not authorize or require 
recipients to set overall or contract goals at the 10 percent level, or 
any other particular level, or to take any special administrative steps 
if their goals are above or below 10 percent.



Sec.  26.43  Can recipients use set-asides or quotas as part of this 
program?

    (a) You are not permitted to use quotas for DBEs on DOT-assisted 
contracts subject to this part.
    (b) You may not set-aside contracts for DBEs on DOT-assisted 
contracts subject to this part, except that, in limited and extreme 
circumstances, you may use set-asides when no other method could be 
reasonably expected to redress egregious instances of discrimination.

[[Page 255]]



Sec.  26.45  How do recipients set overall goals?

    (a)(1) Except as provided in paragraph (a)(2) of this section, you 
must set an overall goal for DBE participation in your DOT-assisted 
contracts.
    (2) If you are a FTA or FAA recipient who reasonably anticipates 
awarding (excluding transit vehicle purchases) $250,000 or less in FTA 
or FAA funds in prime contracts in a Federal fiscal year, you are not 
required to develop overall goals for FTA or FAA respectively for that 
fiscal year. However, if you have an existing DBE program, it must 
remain in effect and you must seek to fulfill the objectives outlined in 
Sec.  26.1.
    (b) Your overall goal must be based on demonstrable evidence of the 
availability of ready, willing and able DBEs relative to all businesses 
ready, willing and able to participate on your DOT-assisted contracts 
(hereafter, the ``relative availability of DBEs''). The goal must 
reflect your determination of the level of DBE participation you would 
expect absent the effects of discrimination. You cannot simply rely on 
either the 10 percent national goal, your previous overall goal or past 
DBE participation rates in your program without reference to the 
relative availability of DBEs in your market.
    (c) Step 1. You must begin your goal setting process by determining 
a base figure for the relative availability of DBEs. The following are 
examples of approaches that you may take toward determining a base 
figure. These examples are provided as a starting point for your goal 
setting process. Any percentage figure derived from one of these 
examples should be considered a basis from which you begin when 
examining all evidence available in your jurisdiction. These examples 
are not intended as an exhaustive list. Other methods or combinations of 
methods to determine a base figure may be used, subject to approval by 
the concerned operating administration.
    (1) Use DBE Directories and Census Bureau Data. Determine the number 
of ready, willing and able DBEs in your market from your DBE directory. 
Using the Census Bureau's County Business Pattern (CBP) data base, 
determine the number of all ready, willing and able businesses available 
in your market that perform work in the same NAICS codes. (Information 
about the CBP data base may be obtained from the Census Bureau at their 
web site, www.census.gov/epcd/cbp/view/cbpview.html.) Divide the number 
of DBEs by the number of all businesses to derive a base figure for the 
relative availability of DBEs in your market.
    (2) Use a bidders list. Determine the number of DBEs that have bid 
or quoted (successful and unsuccessful) on your DOT-assisted prime 
contracts or subcontracts in the past three years. Determine the number 
of all businesses that have bid or quoted (successful and unsuccessful) 
on prime or subcontracts in the same time period. Divide the number of 
DBE bidders and quoters by the number of all businesses to derive a base 
figure for the relative availability of DBEs in your market. When using 
this approach, you must establish a mechanism (documented in your goal 
submission) to directly capture data on DBE and non-DBE prime and 
subcontractors that submitted bids or quotes on your DOT-assisted 
contracts.
    (3) Use data from a disparity study. Use a percentage figure derived 
from data in a valid, applicable disparity study.
    (4) Use the goal of another DOT recipient. If another DOT recipient 
in the same, or substantially similar, market has set an overall goal in 
compliance with this rule, you may use that goal as a base figure for 
your goal.
    (5) Alternative methods. Except as otherwise provided in this 
paragraph, you may use other methods to determine a base figure for your 
overall goal. Any methodology you choose must be based on demonstrable 
evidence of local market conditions and be designed to ultimately attain 
a goal that is rationally related to the relative availability of DBEs 
in your market. The exclusive use of a list of prequalified contractors 
or plan holders, or a bidders list that does not comply with the 
requirements of paragraph (c)(2) of this section, is not an acceptable 
alternative means of determining the availability of DBEs.
    (d) Step 2. Once you have calculated a base figure, you must examine 
all of the evidence available in your jurisdiction to determine what 
adjustment, if

[[Page 256]]

any, is needed to the base figure to arrive at your overall goal. If the 
evidence does not suggest an adjustment is necessary, then no adjustment 
shall be made.
    (1) There are many types of evidence that must be considered when 
adjusting the base figure. These include:
    (i) The current capacity of DBEs to perform work in your DOT-
assisted contracting program, as measured by the volume of work DBEs 
have performed in recent years;
    (ii) Evidence from disparity studies conducted anywhere within your 
jurisdiction, to the extent it is not already accounted for in your base 
figure; and
    (iii) If your base figure is the goal of another recipient, you must 
adjust it for differences in your local market and your contracting 
program.
    (2) If available, you must consider evidence from related fields 
that affect the opportunities for DBEs to form, grow and compete. These 
include, but are not limited to:
    (i) Statistical disparities in the ability of DBEs to get the 
financing, bonding and insurance required to participate in your 
program;
    (ii) Data on employment, self-employment, education, training and 
union apprenticeship programs, to the extent you can relate it to the 
opportunities for DBEs to perform in your program.
    (3) If you attempt to make an adjustment to your base figure to 
account for the continuing effects of past discrimination (often called 
the ``but for'' factor) or the effects of an ongoing DBE program, the 
adjustment must be based on demonstrable evidence that is logically and 
directly related to the effect for which the adjustment is sought.
    (e) Once you have determined a percentage figure in accordance with 
paragraphs (c) and (d) of this section, you should express your overall 
goal as follows:
    (1) If you are an FHWA recipient, as a percentage of all Federal-aid 
highway funds you will expend in FHWA-assisted contracts in the 
forthcoming three fiscal years.
    (2) If you are an FTA or FAA recipient, as a percentage of all FT or 
FAA funds (exclusive of FTA funds to be used for the purchase of transit 
vehicles) that you will expend in FTA or FAA-assisted contracts in the 
three forthcoming fiscal years.
    (3) In appropriate cases, the FHWA, FTA or FAA Administrator may 
permit or require you to express your overall goal as a percentage of 
funds for a particular grant or project or group of grants and/or 
projects, including entire projects. Like other overall goals, a project 
goal may be adjusted to reflect changed circumstances, with the 
concurrence of the appropriate operating administration.
    (i) A project goal is an overall goal, and must meet all the 
substantive and procedural requirements of this section pertaining to 
overall goals.
    (ii) A project goal covers the entire length of the project to which 
it applies.
    (iii) The project goal should include a projection of the DBE 
participation anticipated to be obtained during each fiscal year covered 
by the project goal.
    (iv) The funds for the project to which the project goal pertains 
are separated from the base from which your regular overall goal, 
applicable to contracts not part of the project covered by a project 
goal, is calculated.
    (f)(1)(i) If you set your overall goal on a fiscal year basis, you 
must submit it to the applicable DOT operating administration by August 
1 at three-year intervals, based on a schedule established by the FHWA, 
FTA, or FAA, as applicable, and posted on that agency's Web site.
    (ii) You may adjust your three-year overall goal during the three-
year period to which it applies, in order to reflect changed 
circumstances. You must submit such an adjustment to the concerned 
operating administration for review and approval.
    (iii) The operating administration may direct you to undertake a 
review of your goal if necessary to ensure that the goal continues to 
fit your circumstances appropriately.
    (iv) While you are required to submit an overall goal to FHWA, FTA, 
or FAA only every three years, the overall goal and the provisions of 
Sec. 26.47(c) apply to each year during that three-year period.
    (v) You may make, for informational purposes, projections of your 
expected

[[Page 257]]

DBE achievements during each of the three years covered by your overall 
goal. However, it is the overall goal itself, and not these 
informational projections, to which the provisions of section 26.47(c) 
of this part apply.
    (2) If you are a recipient and set your overall goal on a project or 
grant basis as provided in paragraph (e)(3) of this section, you must 
submit the goal for review at a time determined by the FHWA, FTA or FAA 
Administrator, as applicable.
    (3) You must include with your overall goal submission a description 
of the methodology you used to establish the goal, incuding your base 
figure and the evidence with which it was calculated, and the 
adjustments you made to the base figure and the evidence you relied on 
for the adjustments. You should also include a summary listing of the 
relevant available evidence in your jurisdiction and, where applicable, 
an explanation of why you did not use that evidence to adjust your base 
figure. You must also include your projection of the portions of the 
overall goal you expect to meet through race-neutral and race-consioous 
measures, respectively (see 26.51(c)).
    (4) You are not required to obtain prior operating administration 
concurrence with your overall goal. However, if the operating 
administration's review suggests that your overall goal has not been 
correctly calculated or that your method for calculating goals is 
inadequate, the operating administration may, after consulting with you, 
adjust your overall goal or require that you do so. The adjusted overall 
goal is binding on you. In evaluating the adequacy or soundness of the 
methodology used to derive the overall goal, the operating 
administration will be guided by goal setting principles and best 
practices identified by the Department in guidance issued pursuant to 
Sec.  26.9.
    (5) If you need additional time to collect data or take other steps 
to develop an approach to setting overall goals, you may request the 
approval of the concerned operating administration for an interim goal 
and/or goal-setting mechanism. Such a mechanism must:
    (i) Reflect the relative availability of DBEs in your local market 
to the maximum extent feasible given the data available to you; and
    (ii) Avoid imposing undue burdens on non-DBEs.
    (6) Timely submission and operating administration approval of your 
overall goal is a condition of eligibility for DOT financial assistance.
    (7) If you fail to establish and implement goals as provided in this 
section, you are not in compliance with this part. If you establish and 
implement goals in a way different from that provided in this part, you 
are not in compliance with this part. If you fail to comply with this 
requirement, you are not eligible to receive DOT financial assistance.
    (g)(1) In establishing an overall goal, you must provide for 
consultation and publication. This includes:
    (i) Consultation with minority, women's and general contractor 
groups, community organizations, and other officials or organizations 
which could be expected to have information concerning the availability 
of disadvantaged and non-disadvantaged businesses, the effects of 
discrimination on opportunities for DBEs, and your efforts to establish 
a level playing field for the participation of DBEs. The consultation 
must include a scheduled, direct, interactive exchange (e.g., a face-to-
face meeting, video conference, teleconference) with as many interested 
stakeholders as possible focused on obtaining information relevant to 
the goal setting process, and it must occur before you are required to 
submit your methodology to the operating administration for review 
pursuant to paragraph (f) of this section. You must document in your 
goal submission the consultation process you engaged in. Notwithstanding 
paragraph (f)(4) of this section, you may not implement your proposed 
goal until you have complied with this requirement.
    (ii) A published notice announcing your proposed overall goal before 
submission to the operating administration on August 1st. The notice 
must be posted on your official Internet Web site and may be posted in 
any other sources (e.g., minority-focused media, trade association 
publications). If the proposed goal changes following review by the 
operating administration, the

[[Page 258]]

revised goal must be posted on your official Internet Web site.
    (2) At your discretion, you may inform the public that the proposed 
overall goal and its rationale are available for inspection during 
normal business hours at your principal office and for a 30-day comment 
period. Notice of the comment period must include addresses to which 
comments may be sent. The public comment period will not extend the 
August 1st deadline set in paragraph (f) of this section.
    (h) Your overall goals must provide for participation by all 
certified DBEs and must not be subdivided into group-specific goals.

[64 FR 5126, Feb. 2, 1999, as amended at 64 FR 34570, June 28, 1999; 65 
FR 68951, Nov. 15, 2000; 68 FR 35553, June 16, 2003; 75 FR 5536, Feb. 3, 
2010; 76 FR 5097, Jan. 28, 2011; 79 FR 59593, Oct. 2, 2014]



Sec.  26.47  Can recipients be penalized for failing to meet overall
goals?

    (a) You cannot be penalized, or treated by the Department as being 
in noncompliance with this rule, because your DBE participation falls 
short of your overall goal, unless you have failed to administer your 
program in good faith.
    (b) If you do not have an approved DBE program or overall goal, or 
if you fail to implement your program in good faith, you are in 
noncompliance with this part.
    (c) If the awards and commitments shown on your Uniform Report of 
Awards or Commitments and Payments at the end of any fiscal year are 
less than the overall goal applicable to that fiscal year, you must do 
the following in order to be regarded by the Department as implementing 
your DBE program in good faith:
    (1) Analyze in detail the reasons for the difference between the 
overall goal and your awards and commitments in that fiscal year;
    (2) Establish specific steps and milestones to correct the problems 
you have identified in your analysis and to enable you to meet fully 
your goal for the new fiscal year;
    (3)(i) If you are a state highway agency; one of the 50 largest 
transit authorities as determined by the FTA; or an Operational 
Evolution Partnership Plan airport or other airport designated by the 
FAA, you must submit, within 90 days of the end of the fiscal year, the 
analysis and corrective actions developed under paragraphs (c)(1) and 
(2) of this section to the appropriate operating administration for 
approval. If the operating administration approves the report, you will 
be regarded as complying with the requirements of this section for the 
remainder of the fiscal year.
    (ii) As a transit authority or airport not meeting the criteria of 
paragraph (c)(3)(i) of this section, you must retain analysis and 
corrective actions in your records for three years and make it available 
to FTA or FAA on request for their review.
    (4) FHWA, FTA, or FAA may impose conditions on the recipient as part 
of its approval of the recipient's analysis and corrective actions 
including, but not limited to, modifications to your overall goal 
methodology, changes in your race-conscious/race-neutral split, or the 
introduction of additional race-neutral or race-conscious measures.
    (5) You may be regarded as being in noncompliance with this Part, 
and therefore subject to the remedies in Sec.  26.103 or Sec.  26.105 of 
this part and other applicable regulations, for failing to implement 
your DBE program in good faith if any of the following things occur:
    (i) You do not submit your analysis and corrective actions to FHWA, 
FTA, or FAA in a timely manner as required under paragraph (c)(3) of 
this section;
    (ii) FHWA, FTA, or FAA disapproves your analysis or corrective 
actions; or
    (iii) You do not fully implement the corrective actions to which you 
have committed or conditions that FHWA, FTA, or FAA has imposed 
following review of your analysis and corrective actions.
    (d) If, as recipient, your Uniform Report of DBE Awards or 
Commitments and Payments or other information coming to the attention of 
FTA, FHWA, or FAA, demonstrates that current trends make it unlikely 
that you will achieve DBE awards and commitments that would be necessary 
to allow you to meet your overall goal at the end of the fiscal year, 
FHWA, FTA, or FAA, as applicable, may require you to

[[Page 259]]

make further good faith efforts, such as by modifying your race-
conscious/race-neutral split or introducing additional race-neutral or 
race-conscious measures for the remainder of the fiscal year.

[64 FR 5126, Feb. 2, 1999, as amended at 76 FR 5098, Jan. 28, 2011]



Sec.  26.49  How are overall goals established for transit vehicle
manufacturers?

    (a) If you are an FTA recipient, you must require in your DBE 
program that each transit vehicle manufacturer, as a condition of being 
authorized to bid or propose on FTA-assisted transit vehicle 
procurements, certify that it has complied with the requirements of this 
section. You do not include FTA assistance used in transit vehicle 
procurements in the base amount from which your overall goal is 
calculated.
    (1) Only those transit vehicle manufacturers listed on FTA's 
certified list of Transit Vehicle Manufacturers, or that have submitted 
a goal methodology to FTA that has been approved or has not been 
disapproved, at the time of solicitation are eligible to bid.
    (2) A TVM's failure to implement the DBE Program in the manner as 
prescribed in this section and throughout 49 CFR part 26 will be deemed 
as non-compliance, which will result in removal from FTA's certified 
TVMs list, resulting in that manufacturer becoming ineligible to bid.
    (3) FTA recipient's failure to comply with the requirements set 
forth in paragraph (a) of this section may result in formal enforcement 
action or appropriate sanction as determined by FTA (e.g., FTA declining 
to participate in the vehicle procurement).
    (4) FTA recipients are required to submit within 30 days of making 
an award, the name of the successful bidder, and the total dollar value 
of the contract in the manner prescribed in the grant agreement.
    (b) If you are a transit vehicle manufacturer, you must establish 
and submit for FTA's approval an annual overall percentage goal.
    (1) In setting your overall goal, you should be guided, to the 
extent applicable, by the principles underlying Sec.  26.45. The base 
from which you calculate this goal is the amount of FTA financial 
assistance included in transit vehicle contracts you will bid on during 
the fiscal year in question, less the portion(s) attributable to the 
manufacturing process performed entirely by the transit vehicle 
manufacturer's own forces.
    (i) You must consider and include in your base figure all domestic 
contracting opportunities made available to non-DBE firms; and
    (ii) You must exclude from this base figure funds attributable to 
work performed outside the United States and its territories, 
possessions, and commonwealths.
    (iii) In establishing an overall goal, the transit vehicle 
manufacturer must provide for public participation. This includes 
consultation with interested parties consistent with Sec.  26.45(g).
    (2) The requirements of this part with respect to submission and 
approval of overall goals apply to you as they do to recipients.
    (c) Transit vehicle manufacturers awarded must comply with the 
reporting requirements of Sec.  26.11 of this part including the 
requirement to submit the Uniform Report of Awards or Commitments and 
Payments, in order to remain eligible to bid on FTA assisted transit 
vehicle procurements.
    (d) Transit vehicle manufacturers must implement all other 
applicable requirements of this part, except those relating to UCPs and 
DBE certification procedures.
    (e) If you are an FHWA or FAA recipient, you may, with FHWA or FAA 
approval, use the procedures of this section with respect to 
procurements of vehicles or specialized equipment. If you choose to do 
so, then the manufacturers of this equipment must meet the same 
requirements (including goal approval by FHWA or FAA) as transit vehicle 
manufacturers must meet in FTA-assisted procurements.
    (f) As a recipient you may, with FTA approval, establish project-
specific goals for DBE participation in the procurement of transit 
vehicles in lieu of complying through the procedures of this section.

[79 FR 59594, Oct. 2, 2014]

[[Page 260]]



Sec.  26.51  What means do recipients use to meet overall goals?

    (a) You must meet the maximum feasible portion of your overall goal 
by using race-neutral means of facilitating race-neutral DBE 
participation. Race-neutral DBE participation includes any time a DBE 
wins a prime contract through customary competitive procurement 
procedures or is awarded a subcontract on a prime contract that does not 
carry a DBE contract goal.
    (b) Race-neutral means include, but are not limited to, the 
following:
    (1) Arranging solicitations, times for the presentation of bids, 
quantities, specifications, and delivery schedules in ways that 
facilitate participation by DBEs and other small businesses and by 
making contracts more accessible to small businesses, by means such as 
those provided under Sec.  26.39 of this part.
    (2) Providing assistance in overcoming limitations such as inability 
to obtain bonding or financing (e.g., by such means as simplifying the 
bonding process, reducing bonding requirements, eliminating the impact 
of surety costs from bids, and providing services to help DBEs, and 
other small businesses, obtain bonding and financing);
    (3) Providing technical assistance and other services;
    (4) Carrying out information and communications programs on 
contracting procedures and specific contract opportunities (e.g., 
ensuring the inclusion of DBEs, and other small businesses, on recipient 
mailing lists for bidders; ensuring the dissemination to bidders on 
prime contracts of lists of potential subcontractors; provision of 
information in languages other than English, where appropriate);
    (5) Implementing a supportive services program to develop and 
improve immediate and long-term business management, record keeping, and 
financial and accounting capability for DBEs and other small businesses;
    (6) Providing services to help DBEs, and other small businesses, 
improve long-term development, increase opportunities to participate in 
a variety of kinds of work, handle increasingly significant projects, 
and achieve eventual self-sufficiency;
    (7) Establishing a program to assist new, start-up firms, 
particularly in fields in which DBE participation has historically been 
low;
    (8) Ensuring distribution of your DBE directory, through print and 
electronic means, to the widest feasible universe of potential prime 
contractors; and
    (9) Assisting DBEs, and other small businesses, to develop their 
capability to utilize emerging technology and conduct business through 
electronic media.
    (c) Each time you submit your overall goal for review by the 
concerned operating administration, you must also submit your projection 
of the portion of the goal that you expect to meet through race-neutral 
means and your basis for that projection. This projection is subject to 
approval by the concerned operating administration, in conjunction with 
its review of your overall goal.
    (d) You must establish contract goals to meet any portion of your 
overall goal you do not project being able to meet using race-neutral 
means.
    (e) The following provisions apply to the use of contract goals:
    (1) You may use contract goals only on those DOT-assisted contracts 
that have subcontracting possibilities.
    (2) You are not required to set a contract goal on every DOT-
assisted contract. You are not required to set each contract goal at the 
same percentage level as the overall goal. The goal for a specific 
contract may be higher or lower than that percentage level of the 
overall goal, depending on such factors as the type of work involved, 
the location of the work, and the availability of DBEs for the work of 
the particular contract. However, over the period covered by your 
overall goal, you must set contract goals so that they will cumulatively 
result in meeting any portion of your overall goal you do not project 
being able to meet through the use of race-neutral means.
    (3) Operating administration approval of each contract goal is not 
necessarily required. However, operating administrations may review and 
approve or disapprove any contract goal you establish.
    (4) Your contract goals must provide for participation by all 
certified DBEs

[[Page 261]]

and must not be subdivided into group-specific goals.
    (f) To ensure that your DBE program continues to be narrowly 
tailored to overcome the effects of discrimination, you must adjust your 
use of contract goals as follows:
    (1) If your approved projection under paragraph (c) of this section 
estimates that you can meet your entire overall goal for a given year 
through race-neutral means, you must implement your program without 
setting contract goals during that year, unless it becomes necessary in 
order meet your overall goal.

    Example to paragraph (f)(1): Your overall goal for Year 1 is 12 
percent. You estimate that you can obtain 12 percent or more DBE 
participation through the use of race-neutral measures, without any use 
of contract goals. In this case, you do not set any contract goals for 
the contracts that will be performed in Year 1. However, if part way 
through Year 1, your DBE awards or commitments are not at a level that 
would permit you to achieve your overall goal for Year 1, you could 
begin setting race-conscious DBE contract goals during the remainder of 
the year as part of your obligation to implement your program in good 
faith.

    (2) If, during the course of any year in which you are using 
contract goals, you determine that you will exceed your overall goal, 
you must reduce or eliminate the use of contract goals to the extent 
necessary to ensure that the use of contract goals does not result in 
exceeding the overall goal. If you determine that you will fall short of 
your overall goal, then you must make appropriate modifications in your 
use of race-neutral and/or race-conscious measures to allow you to meet 
the overall goal.

    Example to paragraph (f)(2): In Year II, your overall goal is 12 
percent. You have estimated that you can obtain 5 percent DBE 
participation through use of race-neutral measures. You therefore plan 
to obtain the remaining 7 percent participation through use of DBE 
goals. By September, you have already obtained 11 percent DBE 
participation for the year. For contracts let during the remainder of 
the year, you use contract goals only to the extent necessary to obtain 
an additional one percent DBE participation. However, if you determine 
in September that your participation for the year is likely to be only 8 
percent total, then you would increase your use of race-neutral and/or 
race-conscious means during the remainder of the year in order to 
achieve your overall goal.

    (3) If the DBE participation you have obtained by race-neutral means 
alone meets or exceeds your overall goals for two consecutive years, you 
are not required to make a projection of the amount of your goal you can 
meet using such means in the next year. You do not set contract goals on 
any contracts in the next year. You continue using only race-neutral 
means to meet your overall goals unless and until you do not meet your 
overall goal for a year.

    Example to paragraph (f)(3): Your overall goal for Years I and Year 
II is 10 percent. The DBE participation you obtain through race-neutral 
measures alone is 10 percent or more in each year. (For this purpose, it 
does not matter whether you obtained additional DBE participation 
through using contract goals in these years.) In Year III and following 
years, you do not need to make a projection under paragraph (c) of this 
section of the portion of your overall goal you expect to meet using 
race-neutral means. You simply use race-neutral means to achieve your 
overall goals. However, if in Year VI your DBE participation falls short 
of your overall goal, then you must make a paragraph (c) projection for 
Year VII and, if necessary, resume use of contract goals in that year.

    (4) If you obtain DBE participation that exceeds your overall goal 
in two consecutive years through the use of contract goals (i.e., not 
through the use of race-neutral means alone), you must reduce your use 
of contract goals proportionately in the following year.

    Example to paragraph (f)(4): In Years I and II, your overall goal is 
12 percent, and you obtain 14 and 16 percent DBE participation, 
respectively. You have exceeded your goals over the two-year period by 
an average of 25 percent. In Year III, your overall goal is again 12 
percent, and your paragraph (c) projection estimates that you will 
obtain 4 percent DBE participation through race-neutral means and 8 
percent through contract goals. You then reduce the contract goal 
projection by 25 percent (i.e., from 8 to 6 percent) and set contract 
goals accordingly during the year. If in Year III you obtain 11 percent 
participation, you do not use this contract goal adjustment mechanism 
for Year IV, because there have not been two consecutive years of 
exceeding overall goals.

    (g) In any year in which you project meeting part of your goal 
through race-neutral means and the remainder

[[Page 262]]

through contract goals, you must maintain data separately on DBE 
achievements in those contracts with and without contract goals, 
respectively. You must report this data to the concerned operating 
administration as provided in Sec.  26.11.

[64 FR 5126, Feb. 2, 1999, as amended at 76 FR 5098, Jan. 28, 2011; 79 
FR 59595, Oct. 2, 2014]



Sec.  26.53  What are the good faith efforts procedures recipients 
follow in situations where there are contract goals?

    (a) When you have established a DBE contract goal, you must award 
the contract only to a bidder/offeror who makes good faith efforts to 
meet it. You must determine that a bidder/offeror has made good faith 
efforts if the bidder/offeror does either of the following things:
    (1) Documents that it has obtained enough DBE participation to meet 
the goal; or
    (2) Documents that it made adequate good faith efforts to meet the 
goal, even though it did not succeed in obtaining enough DBE 
participation to do so. If the bidder/offeror does document adequate 
good faith efforts, you must not deny award of the contract on the basis 
that the bidder/offeror failed to meet the goal. See Appendix A of this 
part for guidance in determining the adequacy of a bidder/offeror's good 
faith efforts.
    (b) In your solicitations for DOT-assisted contracts for which a 
contract goal has been established, you must require the following:
    (1) Award of the contract will be conditioned on meeting the 
requirements of this section;
    (2) All bidders or offerors will be required to submit the following 
information to the recipient, at the time provided in paragraph (b)(3) 
of this section:
    (i) The names and addresses of DBE firms that will participate in 
the contract;
    (ii) A description of the work that each DBE will perform. To count 
toward meeting a goal, each DBE firm must be certified in a NAICS code 
applicable to the kind of work the firm would perform on the contract;
    (iii) The dollar amount of the participation of each DBE firm 
participating;
    (iv) Written documentation of the bidder/offeror's commitment to use 
a DBE subcontractor whose participation it submits to meet a contract 
goal; and
    (v) Written confirmation from each listed DBE firm that it is 
participating in the contract in the kind and amount of work provided in 
the prime contractor's commitment.
    (vi) If the contract goal is not met, evidence of good faith efforts 
(see Appendix A of this part). The documentation of good faith efforts 
must include copies of each DBE and non-DBE subcontractor quote 
submitted to the bidder when a non-DBE subcontractor was selected over a 
DBE for work on the contract; and
    (3)(i) At your discretion, the bidder/offeror must present the 
information required by paragraph (b)(2) of this section--
    (A) Under sealed bid procedures, as a matter of responsiveness, or 
with initial proposals, under contract negotiation procedures; or
    (B) No later than 7 days after bid opening as a matter of 
responsibility. The 7 days shall be reduced to 5 days beginning January 
1, 2017.
    (ii) Provided that, in a negotiated procurement, including a design-
build procurement, the bidder/offeror may make a contractually binding 
commitment to meet the goal at the time of bid submission or the 
presentation of initial proposals but provide the information required 
by paragraph (b)(2) of this section before the final selection for the 
contract is made by the recipient.
    (c) You must make sure all information is complete and accurate and 
adequately documents the bidder/offeror's good faith efforts before 
committing yourself to the performance of the contract by the bidder/
offeror.
    (d) If you determine that the apparent successful bidder/offeror has 
failed to meet the requirements of paragraph (a) of this section, you 
must, before awarding the contract, provide the bidder/offeror an 
opportunity for administrative reconsideration.

[[Page 263]]

    (1) As part of this reconsideration, the bidder/offeror must have 
the opportunity to provide written documentation or argument concerning 
the issue of whether it met the goal or made adequate good faith efforts 
to do so.
    (2) Your decision on reconsideration must be made by an official who 
did not take part in the original determination that the bidder/offeror 
failed to meet the goal or make adequate good faith efforts to do so.
    (3) The bidder/offeror must have the opportunity to meet in person 
with your reconsideration official to discuss the issue of whether it 
met the goal or made adequate good faith efforts to do so.
    (4) You must send the bidder/offeror a written decision on 
reconsideration, explaining the basis for finding that the bidder did or 
did not meet the goal or make adequate good faith efforts to do so.
    (5) The result of the reconsideration process is not 
administratively appealable to the Department of Transportation.
    (e) In a ``design-build'' or ``turnkey'' contracting situation, in 
which the recipient lets a master contract to a contractor, who in turn 
lets subsequent subcontracts for the work of the project, a recipient 
may establish a goal for the project. The master contractor then 
establishes contract goals, as appropriate, for the subcontracts it 
lets. Recipients must maintain oversight of the master contractor's 
activities to ensure that they are conducted consistent with the 
requirements of this part.
    (f)(1)(i) You must require that a prime contractor not terminate a 
DBE subcontractor listed in response to paragraph (b)(2) of this section 
(or an approved substitute DBE firm) without your prior written consent. 
This includes, but is not limited to, instances in which a prime 
contractor seeks to perform work originally designated for a DBE 
subcontractor with its own forces or those of an affiliate, a non-DBE 
firm, or with another DBE firm.
    (ii) You must include in each prime contract a provision stating:
    (A) That the contractor shall utilize the specific DBEs listed to 
perform the work and supply the materials for which each is listed 
unless the contractor obtains your written consent as provided in this 
paragraph (f); and
    (B) That, unless your consent is provided under this paragraph (f), 
the contractor shall not be entitled to any payment for work or material 
unless it is performed or supplied by the listed DBE.
    (2) You may provide such written consent only if you agree, for 
reasons stated in your concurrence document, that the prime contractor 
has good cause to terminate the DBE firm.
    (3) For purposes of this paragraph, good cause includes the 
following circumstances:
    (i) The listed DBE subcontractor fails or refuses to execute a 
written contract;
    (ii) The listed DBE subcontractor fails or refuses to perform the 
work of its subcontract in a way consistent with normal industry 
standards. Provided, however, that good cause does not exist if the 
failure or refusal of the DBE subcontractor to perform its work on the 
subcontract results from the bad faith or discriminatory action of the 
prime contracor;
    (iii) The listed DBE subcontractor fails or refuses to meet the 
prime contractor's reasonable, nondiscriminatory bond requirements.
    (iv) The listed DBE subcontractor becomes bankrupt, insolvent, or 
exhibits credit unworthiness;
    (v) The listed DBE subcontractor is ineligible to work on public 
works projects because of suspension and debarment proceedings pursuant 
2 CFR Parts 180, 215 and 1,200 or applicable state law;
    (vii) You have determined that the listed DBE subcontractor is not a 
responsible contractor;
    (vi) The listed DBE subcontractor voluntarily withdraws from the 
project and provides to you written notice of its withdrawal;
    (vii) The listed DBE is ineligible to receive DBE credit for the 
type of work required;
    (viii) A DBE owner dies or becomes disabled with the result that the 
listed DBE contractor is unable to complete its work on the contract;

[[Page 264]]

    (ix) Other documented good cause that you determine compels the 
termination of the DBE subcontractor. Provided, that good cause does not 
exist if the prime contractor seeks to terminate a DBE it relied upon to 
obtain the contract so that the prime contractor can self-perform the 
work for which the DBE contractor was engaged or so that the prime 
contractor can substitute another DBE or non-DBE contractor after 
contract award.
    (4) Before transmitting to you its request to terminate and/or 
substitute a DBE subcontractor, the prime contractor must give notice in 
writing to the DBE subcontractor, with a copy to you, of its intent to 
request to terminate and/or substitute, and the reason for the request.
    (5) The prime contractor must give the DBE five days to respond to 
the prime contractor's notice and advise you and the contractor of the 
reasons, if any, why it objects to the proposed termination of its 
subcontract and why you should not approve the prime contractor's 
action. If required in a particular case as a matter of public necessity 
(e.g., safety), you may provide a response period shorter than five 
days.
    (6) In addition to post-award terminations, the provisions of this 
section apply to preaward deletions of or substitutions for DBE firms 
put forward by offerors in negotiated procurements.
    (g) When a DBE subcontractor is terminated as provided in paragraph 
(f) of this section, or fails to complete its work on the contract for 
any reason, you must require the prime contractor to make good faith 
efforts to find another DBE subcontractor to substitute for the original 
DBE. These good faith efforts shall be directed at finding another DBE 
to perform at least the same amount of work under the contract as the 
DBE that was terminated, to the extent needed to meet the contract goal 
you established for the procurement. The good faith efforts shall be 
documented by the contractor. If the recipient requests documentation 
under this provision, the contractor shall submit the documentation 
within 7 days, which may be extended for an additional 7 days if 
necessary at the request of the contractor, and the recipient shall 
provide a written determination to the contractor stating whether or not 
good faith efforts have been demonstrated.
    (h) You must include in each prime contract the contract clause 
required by Sec.  26.13(b) stating that failure by the contractor to 
carry out the requirements of this part is a material breach of the 
contract and may result in the termination of the contract or such other 
remedies set forth in that section you deem appropriate if the prime 
contractor fails to comply with the requirements of this section.
    (i) You must apply the requirements of this section to DBE bidders/
offerors for prime contracts. In determining whether a DBE bidder/
offeror for a prime contract has met a contract goal, you count the work 
the DBE has committed to performing with its own forces as well as the 
work that it has committed to be performed by DBE subcontractors and DBE 
suppliers.
    (j) You must require the contractor awarded the contract to make 
available upon request a copy of all DBE subcontracts. The subcontractor 
shall ensure that all subcontracts or an agreement with DBEs to supply 
labor or materials require that the subcontract and all lower tier 
subcontractors be performed in accordance with this part's provisions.

[64 FR 5126, Feb. 2, 1999, as amended at 76 FR 5098, Jan. 28, 2011; 79 
FR 59595, Oct. 2, 2014]



Sec.  26.55  How is DBE participation counted toward goals?

    (a) When a DBE participates in a contract, you count only the value 
of the work actually performed by the DBE toward DBE goals.
    (1) Count the entire amount of that portion of a construction 
contract (or other contract not covered by paragraph (a)(2) of this 
section) that is performed by the DBE's own forces. Include the cost of 
supplies and materials obtained by the DBE for the work of the contract, 
including supplies purchased or equipment leased by the DBE (except 
supplies and equipment the DBE subcontractor purchases or leases from 
the prime contractor or its affiliate).
    (2) Count the entire amount of fees or commissions charged by a DBE 
firm for providing a bona fide service, such as

[[Page 265]]

professional, technical, consultant, or managerial services, or for 
providing bonds or insurance specifically required for the performance 
of a DOT-assisted contract, toward DBE goals, provided you determine the 
fee to be reasonable and not excessive as compared with fees customarily 
allowed for similar services.
    (3) When a DBE subcontracts part of the work of its contract to 
another firm, the value of the subcontracted work may be counted toward 
DBE goals only if the DBE's subcontractor is itself a DBE. Work that a 
DBE subcontracts to a non-DBE firm does not count toward DBE goals.
    (b) When a DBE performs as a participant in a joint venture, count a 
portion of the total dollar value of the contract equal to the distinct, 
clearly defined portion of the work of the contract that the DBE 
performs with its own forces toward DBE goals.
    (c) Count expenditures to a DBE contractor toward DBE goals only if 
the DBE is performing a commercially useful function on that contract.
    (1) A DBE performs a commercially useful function when it is 
responsible for execution of the work of the contract and is carrying 
out its responsibilities by actually performing, managing, and 
supervising the work involved. To perform a commercially useful 
function, the DBE must also be responsible, with respect to materials 
and supplies used on the contract, for negotiating price, determining 
quality and quantity, ordering the material, and installing (where 
applicable) and paying for the material itself. To determine whether a 
DBE is performing a commercially useful function, you must evaluate the 
amount of work subcontracted, industry practices, whether the amount the 
firm is to be paid under the contract is commensurate with the work it 
is actually performing and the DBE credit claimed for its performance of 
the work, and other relevant factors.
    (2) A DBE does not perform a commercially useful function if its 
role is limited to that of an extra participant in a transaction, 
contract, or project through which funds are passed in order to obtain 
the appearance of DBE participation. In determining whether a DBE is 
such an extra participant, you must examine similar transactions, 
particularly those in which DBEs do not participate.
    (3) If a DBE does not perform or exercise responsibility for at 
least 30 percent of the total cost of its contract with its own work 
force, or the DBE subcontracts a greater portion of the work of a 
contract than would be expected on the basis of normal industry practice 
for the type of work involved, you must presume that it is not 
performing a commercially useful function.
    (4) When a DBE is presumed not to be performing a commercially 
useful function as provided in paragraph (c)(3) of this section, the DBE 
may present evidence to rebut this presumption. You may determine that 
the firm is performing a commercially useful function given the type of 
work involved and normal industry practices.
    (5) Your decisions on commercially useful function matters are 
subject to review by the concerned operating administration, but are not 
administratively appealable to DOT.
    (d) Use the following factors in determining whether a DBE trucking 
company is performing a commercially useful function:
    (1) The DBE must be responsible for the management and supervision 
of the entire trucking operation for which it is responsible on a 
particular contract, and there cannot be a contrived arrangement for the 
purpose of meeting DBE goals.
    (2) The DBE must itself own and operate at least one fully licensed, 
insured, and operational truck used on the contract.
    (3) The DBE receives credit for the total value of the 
transportation services it provides on the contract using trucks it 
owns, insures, and operates using drivers it employs.
    (4) The DBE may lease trucks from another DBE firm, including an 
owner-operator who is certified as a DBE. The DBE who leases trucks from 
another DBE receives credit for the total value of the transportation 
services the lessee DBE provides on the contract.
    (5) The DBE may also lease trucks from a non-DBE firm, including 
from an owner-operator. The DBE that leases trucks equipped with drivers

[[Page 266]]

from a non-DBE is entitled to credit for the total value of 
transportation services provided by non-DBE leased trucks equipped with 
drivers not to exceed the value of transportation services on the 
contract provided by DBE-owned trucks or leased trucks with DBE employee 
drivers. Additional participation by non-DBE owned trucks equipped with 
drivers receives credit only for the fee or commission it receives as a 
result of the lease arrangement. If a recipient chooses this approach, 
it must obtain written consent from the appropriate DOT operating 
administration.

    Example to paragraph (d)(5): DBE Firm X uses two of its own trucks 
on a contract. It leases two trucks from DBE Firm Y and six trucks 
equipped with drivers from non-DBE Firm Z. DBE credit would be awarded 
for the total value of transportation services provided by Firm X and 
Firm Y, and may also be awarded for the total value of transportation 
services provided by four of the six trucks provided by Firm Z. In all, 
full credit would be allowed for the participation of eight trucks. DBE 
credit could be awarded only for the fees or commissions pertaining to 
the remaining trucks Firm X receives as a result of the lease with Firm 
Z.

    (6) The DBE may lease trucks without drivers from a non-DBE truck 
leasing company. If the DBE leases trucks from a non-DBE truck leasing 
company and uses its own employees as drivers, it is entitled to credit 
for the total value of these hauling services.

    Example to paragraph (d)(6): DBE Firm X uses two of its own trucks 
on a contract. It leases two additional trucks from non-DBE Firm Z. Firm 
X uses its own employees to drive the trucks leased from Firm Z. DBE 
credit would be awarded for the total value of the transportation 
services provided by all four trucks.

    (7) For purposes of this paragraph (d), a lease must indicate that 
the DBE has exclusive use of and control over the truck. This does not 
preclude the leased truck from working for others during the term of the 
lease with the consent of the DBE, so long as the lease gives the DBE 
absolute priority for use of the leased truck. Leased trucks must 
display the name and identification number of the DBE.
    (e) Count expenditures with DBEs for materials or supplies toward 
DBE goals as provided in the following:
    (1)(i) If the materials or supplies are obtained from a DBE 
manufacturer, count 100 percent of the cost of the materials or supplies 
toward DBE goals.
    (ii) For purposes of this paragraph (e)(1), a manufacturer is a firm 
that operates or maintains a factory or establishment that produces, on 
the premises, the materials, supplies, articles, or equipment required 
under the contract and of the general character described by the 
specifications.
    (2)(i) If the materials or supplies are purchased from a DBE regular 
dealer, count 60 percent of the cost of the materials or supplies toward 
DBE goals.
    (ii) For purposes of this section, a regular dealer is a firm that 
owns, operates, or maintains a store, warehouse, or other establishment 
in which the materials, supplies, articles or equipment of the general 
character described by the specifications and required under the 
contract are bought, kept in stock, and regularly sold or leased to the 
public in the usual course of business.
    (A) To be a regular dealer, the firm must be an established, regular 
business that engages, as its principal business and under its own name, 
in the purchase and sale or lease of the products in question.
    (B) A person may be a regular dealer in such bulk items as petroleum 
products, steel, cement, gravel, stone, or asphalt without owning, 
operating, or maintaining a place of business as provided in this 
paragraph (e)(2)(ii) if the person both owns and operates distribution 
equipment for the products. Any supplementing of regular dealers' own 
distribution equipment shall be by a long-term lease agreement and not 
on an ad hoc or contract-by-contract basis.
    (C) Packagers, brokers, manufacturers' representatives, or other 
persons who arrange or expedite transactions are not regular dealers 
within the meaning of this paragraph (e)(2).
    (3) With respect to materials or supplies purchased from a DBE which 
is neither a manufacturer nor a regular dealer, count the entire amount 
of fees or commissions charged for assistance in the procurement of the 
materials and supplies, or fees or transportation charges for the 
delivery of materials or

[[Page 267]]

supplies required on a job site, toward DBE goals, provided you 
determine the fees to be reasonable and not excessive as compared with 
fees customarily allowed for similar services. Do not count any portion 
of the cost of the materials and supplies themselves toward DBE goals, 
however.
    (4) You must determine the amount of credit awarded to a firm for 
the provisions of materials and supplies (e.g., whether a firm is acting 
as a regular dealer or a transaction expediter) on a contract-by-
contract basis.
    (f) If a firm is not currently certified as a DBE in accordance with 
the standards of subpart D of this part at the time of the execution of 
the contract, do not count the firm's participation toward any DBE 
goals, except as provided for in Sec.  26.87(i)).
    (g) Do not count the dollar value of work performed under a contract 
with a firm after it has ceased to be certified toward your overall 
goal.
    (h) Do not count the participation of a DBE subcontractor toward a 
contractor's final compliance with its DBE obligations on a contract 
until the amount being counted has actually been paid to the DBE.

[64 FR 5126, Feb. 2, 1999, as amended at 65 FR 68951, Nov. 15, 2000; 68 
FR 35554, June 16, 2003; 79 FR 59595, Oct. 2, 2014]



                    Subpart D_Certification Standards



Sec.  26.61  How are burdens of proof allocated in the certification
process?

    (a) In determining whether to certify a firm as eligible to 
participate as a DBE, you must apply the standards of this subpart.
    (b) The firm seeking certification has the burden of demonstrating 
to you, by a preponderance of the evidence, that it meets the 
requirements of this subpart concerning group membership or individual 
disadvantage, business size, ownership, and control.
    (c) You must rebuttably presume that members of the designated 
groups identified in Sec.  26.67(a) are socially and economically 
disadvantaged. This means they do not have the burden of proving to you 
that they are socially and economically disadvantaged. In order to 
obtain the benefit of the rebuttable presumption, individuals must 
submit a signed, notarized statement that they are a member of one of 
the groups in Sec.  26.67(a). Applicants do have the obligation to 
provide you information concerning their economic disadvantage (see 
Sec.  26.67).
    (d) Individuals who are not presumed to be socially and economically 
disadvantaged, and individuals concerning whom the presumption of 
disadvantage has been rebutted, have the burden of proving to you, by a 
preponderance of the evidence, that they are socially and economically 
disadvantaged. (See Appendix E of this part.)
    (e) You must make determinations concerning whether individuals and 
firms have met their burden of demonstrating group membership, 
ownership, control, and social and economic disadvantage (where 
disadvantage must be demonstrated on an individual basis) by considering 
all the facts in the record, viewed as a whole.

[64 FR 5126, Feb. 2, 1999, as amended at 68 FR 35554, June 16, 2003]



Sec.  26.63  What rules govern group membership determinations?

    (a)(1) If, after reviewing the signed notarized statement of 
membership in a presumptively disadvantaged group (see Sec.  26.61(c)), 
you have a well founded reason to question the individual's claim of 
membership in that group, you must require the individual to present 
additional evidence that he or she is a member of the group.
    (2) You must provide the individual a written explanation of your 
reasons for questioning his or her group membership and a written 
request for additional evidence as outlined in paragraph (b) of this 
section.
    (3) In implementing this section, you must take special care to 
ensure that you do not impose a disproportionate burden on members of 
any particular designated group. Imposing a disproportionate burden on 
members of a particular group could violate Sec.  26.7(b) and/or Title 
VI of the Civil Rights Act of 1964 and 49 CFR part 21.
    (b) In making such a determination, you must consider whether the 
person has held himself out to be a member of the group over a long 
period of time prior to application for certification and whether the 
person is regarded as a

[[Page 268]]

member of the group by the relevant community. You may require the 
applicant to produce appropriate documentation of group membership.
    (1) If you determine that an individual claiming to be a member of a 
group presumed to be disadvantaged is not a member of a designated 
disadvantaged group, the individual must demonstrate social and economic 
disadvantage on an individual basis.
    (2) Your decisions concerning membership in a designated group are 
subject to the certification appeals procedure of Sec.  26.89.

[64 FR 5126, Feb. 2, 1999, as amended at 68 FR 35554, June 16, 2003]



Sec.  26.65  What rules govern business size determinations?

    (a) To be an eligible DBE, a firm (including its affiliates) must be 
an existing small business, as defined by Small Business Administration 
(SBA) standards. As a recipient, you must apply current SBA business 
size standard(s) found in 13 CFR part 121 appropriate to the type(s) of 
work the firm seeks to perform in DOT-assisted contracts, including the 
primary industry classification of the applicant.
    (b) Even if it meets the requirements of paragraph (a) of this 
section, a firm is not an eligible DBE for the purposes of Federal 
Highway Administration and Federal Transit Administration-assisted work 
in any Federal fiscal year if the firm (including its affiliates) has 
had average annual gross receipts, as defined by SBA regulations (see 13 
CFR 121.104), over the firm's previous three fiscal years, in excess of 
$26.29 million. The Department will adjust this amount for inflation on 
an annual basis. The adjusted amount will be published on the 
Department's website in subsequent years.
    (c) The Department adjusts the number in paragraph (b) of this 
section annually using the Department of Commerce price deflators for 
purchases by State and local governments as the basis for this 
adjustment.

[74 FR 15224, Apr. 3, 2009, as amended at 79 FR 59596, Oct. 2, 2014; 85 
FR 80647, Dec. 14, 2020]



Sec.  26.67  What rules determine social and economic disadvantage?

    (a) Presumption of disadvantage. (1) You must rebuttably presume 
that citizens of the United States (or lawfully admitted permanent 
residents) who are women, Black Americans, Hispanic Americans, Native 
Americans, Asian-Pacific Americans, Subcontinent Asian Americans, or 
other minorities found to be disadvantaged by the SBA, are socially and 
economically disadvantaged individuals. You must require applicants to 
submit a signed, notarized certification that each presumptively 
disadvantaged owner is, in fact, socially and economically 
disadvantaged.
    (2)(i) You must require each individual owner of a firm applying to 
participate as a DBE, whose ownership and control are relied upon for 
DBE certification, to certify that he or she has a personal net worth 
that does not exceed $1.32 million.
    (ii) You must require each individual who makes this certification 
to support it with a signed, notarized statement of personal net worth, 
with appropriate supporting documentation. To meet this requirement, you 
must use the DOT personal net worth form provided in appendix G to this 
part without change or revision. Where necessary to accurately determine 
an individual's personal net worth, you may, on a case-by-case basis, 
require additional financial information from the owner of an applicant 
firm (e.g., information concerning the assets of the owner's spouse, 
where needed to clarify whether assets have been transferred to the 
spouse or when the owner's spouse is involved in the operation of the 
company). Requests for additional information shall not be unduly 
burdensome or intrusive.
    (iii) In determining an individual's net worth, you must observe the 
following requirements:
    (A) Exclude an individual's ownership interest in the applicant 
firm;
    (B) Exclude the individual's equity in his or her primary residence 
(except any portion of such equity that is attributable to excessive 
withdrawals from the applicant firm). The equity is the market value of 
the residence less any mortgages and home equity loan

[[Page 269]]

balances. Recipients must ensure that home equity loan balances are 
included in the equity calculation and not as a separate liability on 
the individual's personal net worth form. Exclusions for net worth 
purposes are not exclusions for asset valuation or access to capital and 
credit purposes.
    (C) Do not use a contingent liability to reduce an individual's net 
worth.
    (D) With respect to assets held in vested pension plans, Individual 
Retirement Accounts, 401(k) accounts, or other retirement savings or 
investment programs in which the assets cannot be distributed to the 
individual at the present time without significant adverse tax or 
interest consequences, include only the present value of such assets, 
less the tax and interest penalties that would accrue if the asset were 
distributed at the present time.
    (iv) Notwithstanding any provision of Federal or State law, you must 
not release an individual's personal net worth statement nor any 
documents pertaining to it to any third party without the written 
consent of the submitter. Provided, that you must transmit this 
information to DOT in any certification appeal proceeding under Sec.  
26.89 of this part or to any other State to which the individual's firm 
has applied for certification under Sec.  26.85 of this part.
    (b) Rebuttal of presumption of disadvantage. (1) An individual's 
presumption of economic disadvantage may be rebutted in two ways.
    (i) If the statement of personal net worth and supporting 
documentation that an individual submits under paragraph (a)(2) of this 
section shows that the individual's personal net worth exceeds $1.32 
million, the individual's presumption of economic disadvantage is 
rebutted. You are not required to have a proceeding under paragraph 
(b)(2) of this section in order to rebut the presumption of economic 
disadvantage in this case.

    Example to paragraph (b)(1)(i): An individual with very high assets 
and significant liabilities may, in accounting terms, have a PNW of less 
than $1.32 million. However, the person's assets collectively (e.g., 
high income level, a very expensive house, a yacht, extensive real or 
personal property holdings) may lead a reasonable person to conclude 
that he or she is not economically disadvantaged. The recipient may 
rebut the individual's presumption of economic disadvantage under these 
circumstances, as provided in this section, even though the individual's 
PNW is less than $1.32 million.

    (ii)(A) If the statement of personal net worth and supporting 
documentation that an individual submits under paragraph (a)(2) of this 
section demonstrates that the individual is able to accumulate 
substantial wealth, the individual's presumption of economic 
disadvantage is rebutted. In making this determination, as a certifying 
agency, you may consider factors that include, but are not limited to, 
the following:
    (1) Whether the average adjusted gross income of the owner over the 
most recent three year period exceeds $350,000;
    (2) Whether the income was unusual and not likely to occur in the 
future;
    (3) Whether the earnings were offset by losses;
    (4) Whether the income was reinvested in the firm or used to pay 
taxes arising in the normal course of operations by the firm;
    (5) Other evidence that income is not indicative of lack of economic 
disadvantage; and
    (6) Whether the total fair market value of the owner's assets exceed 
$6 million.
    (B) You must have a proceeding under paragraph (b)(2) of this 
section in order to rebut the presumption of economic disadvantage in 
this case.
    (2) If you have a reasonable basis to believe that an individual who 
is a member of one of the designated groups is not, in fact, socially 
and/or economically disadvantaged you may, at any time, start a 
proceeding to determine whether the presumption should be regarded as 
rebutted with respect to that individual. Your proceeding must follow 
the procedures of Sec.  26.87.
    (3) In such a proceeding, you have the burden of demonstrating, by a 
preponderance of the evidence, that the individual is not socially and 
economically disadvantaged. You may require the individual to produce 
information relevant to the determination of his or her disadvantage.
    (4) When an individual's presumption of social and/or economic 
disadvantage

[[Page 270]]

has been rebutted, his or her ownership and control of the firm in 
question cannot be used for purposes of DBE eligibility under this 
subpart unless and until he or she makes an individual showing of social 
and/or economic disadvantage. If the basis for rebutting the presumption 
is a determination that the individual's personal net worth exceeds 
$1.32 million, the individual is no longer eligible for participation in 
the program and cannot regain eligibility by making an individual 
showing of disadvantage, so long as his or her PNW remains above that 
amount.
    (c) Transfers within two years. (1) Except as set forth in paragraph 
(c)(2) of this section, recipients must attribute to an individual 
claiming disadvantaged status any assets which that individual has 
transferred to an immediate family member, to a trust a beneficiary of 
which is an immediate family member, or to the applicant firm for less 
than fair market value, within two years prior to a concern's 
application for participation in the DBE program or within two years of 
recipient's review of the firm's annual affidavit, unless the individual 
claiming disadvantaged status can demonstrate that the transfer is to or 
on behalf of an immediate family member for that individual's education, 
medical expenses, or some other form of essential support.
    (2) Recipients must not attribute to an individual claiming 
disadvantaged status any assets transferred by that individual to an 
immediate family member that are consistent with the customary 
recognition of special occasions, such as birthdays, graduations, 
anniversaries, and retirements.
    (d) Individual determinations of social and economic disadvantage. 
Firms owned and controlled by individuals who are not presumed to be 
socially and economically disadvantaged (including individuals whose 
presumed disadvantage has been rebutted) may apply for DBE 
certification. You must make a case-by-case determination of whether 
each individual whose ownership and control are relied upon for DBE 
certification is socially and economically disadvantaged. In such a 
proceeding, the applicant firm has the burden of demonstrating to you, 
by a preponderance of the evidence, that the individuals who own and 
control it are socially and economically disadvantaged. An individual 
whose personal net worth exceeds $1.32 million shall not be deemed to be 
economically disadvantaged. In making these determinations, use the 
guidance found in Appendix E of this part. You must require that 
applicants provide sufficient information to permit determinations under 
the guidance of appendix E of this part.

[79 FR 59596, Oct. 2, 2014]



Sec.  26.69  What rules govern determinations of ownership?

    (a) In determining whether the socially and economically 
disadvantaged participants in a firm own the firm, you must consider all 
the facts in the record viewed as a whole, including the origin of all 
assets and how and when they were used in obtaining the firm. All 
transactions for the establishment and ownership (or transfer of 
ownership) must be in the normal course of business, reflecting 
commercial and arms-length practices.
    (b) To be an eligible DBE, a firm must be at least 51 percent owned 
by socially and economically disadvantaged individuals.
    (1) In the case of a corporation, such individuals must own at least 
51 percent of the each class of voting stock outstanding and 51 percent 
of the aggregate of all stock outstanding.
    (2) In the case of a partnership, 51 percent of each class of 
partnership interest must be owned by socially and economically 
disadvantaged individuals. Such ownership must be reflected in the 
firm's partnership agreement.
    (3) In the case of a limited liability company, at least 51 percent 
of each class of member interest must be owned by socially and 
economically disadvantaged individuals.
    (c)(1) The firm's ownership by socially and economically 
disadvantaged individuals, including their contribution of capital or 
expertise to acquire their ownership interests, must be real, 
substantial, and continuing, going beyond pro forma ownership of the 
firm as reflected in ownership documents. Proof of contribution of 
capital should

[[Page 271]]

be submitted at the time of the application. When the contribution of 
capital is through a loan, there must be documentation of the value of 
assets used as collateral for the loan.

    (2) Insufficient contributions include a promise to contribute 
capital, an unsecured note payable to the firm or an owner who is not a 
disadvantaged individual, mere participation in a firm's activities as 
an employee, or capitalization not commensurate with the value for the 
firm.
    (3) The disadvantaged owners must enjoy the customary incidents of 
ownership, and share in the risks and be entitled to the profits and 
loss commensurate with their ownership interests, as demonstrated by the 
substance, not merely the form, of arrangements. Any terms or practices 
that give a non-disadvantaged individual or firm a priority or superior 
right to a firm's profits, compared to the disadvantaged owner(s), are 
grounds for denial.
    (4) Debt instruments from financial institutions or other 
organizations that lend funds in the normal course of their business do 
not render a firm ineligible, even if the debtor's ownership interest is 
security for the loan.

    Examples to paragraph (c): (i) An individual pays $100 to acquire a 
majority interest in a firm worth $1 million. The individual's 
contribution to capital would not be viewed as substantial.
    (ii) A 51% disadvantaged owner and a non-disadvantaged 49% owner 
contribute $100 and $10,000, respectively, to acquire a firm grossing $1 
million. This may be indicative of a pro forma arrangement that does not 
meet the requirements of (c)(1).
    (iii) The disadvantaged owner of a DBE applicant firm spends $250 to 
file articles of incorporation and obtains a $100,000 loan, but makes 
only nominal or sporadic payments to repay the loan. This type of 
contribution is not of a continuing nature.

    (d) All securities that constitute ownership of a firm shall be held 
directly by disadvantaged persons. Except as provided in this paragraph 
(d), no securities or assets held in trust, or by any guardian for a 
minor, are considered as held by disadvantaged persons in determining 
the ownership of a firm. However, securities or assets held in trust are 
regarded as held by a disadvantaged individual for purposes of 
determining ownership of the firm, if--
    (1) The beneficial owner of securities or assets held in trust is a 
disadvantaged individual, and the trustee is the same or another such 
individual; or
    (2) The beneficial owner of a trust is a disadvantaged individual 
who, rather than the trustee, exercises effective control over the 
management, policy-making, and daily operational activities of the firm. 
Assets held in a revocable living trust may be counted only in the 
situation where the same disadvantaged individual is the sole grantor, 
beneficiary, and trustee.
    (e) The contributions of capital or expertise by the socially and 
economically disadvantaged owners to acquire their ownership interests 
must be real and substantial. Examples of insufficient contributions 
include a promise to contribute capital, an unsecured note payable to 
the firm or an owner who is not a disadvantaged individual, or mere 
participation in a firm's activities as an employee. Debt instruments 
from financial institutions or other organizations that lend funds in 
the normal course of their business do not render a firm ineligible, 
even if the debtor's ownership interest is security for the loan.
    (f) The following requirements apply to situations in which 
expertise is relied upon as part of a disadvantaged owner's contribution 
to acquire ownership:
    (1) The owner's expertise must be--
    (i) In a specialized field;
    (ii) Of outstanding quality;
    (iii) In areas critical to the firm's operations;
    (iv) Indispensable to the firm's potential success;
    (v) Specific to the type of work the firm performs; and
    (vi) Documented in the records of the firm. These records must 
clearly show the contribution of expertise and its value to the firm.
    (2) The individual whose expertise is relied upon must have a 
significant financial investment in the firm.
    (g) You must always deem as held by a socially and economically 
disadvantaged individual, for purposes of determining ownership, all 
interests in a business or other assets obtained by the individual--

[[Page 272]]

    (1) As the result of a final property settlement or court order in a 
divorce or legal separation, provided that no term or condition of the 
agreement or divorce decree is inconsistent with this section; or
    (2) Through inheritance, or otherwise because of the death of the 
former owner.
    (h)(1) You must presume as not being held by a socially and 
economically disadvantaged individual, for purposes of determining 
ownership, all interests in a business or other assets obtained by the 
individual as the result of a gift, or transfer without adequate 
consideration, from any non-disadvantaged individual or non-DBE firm who 
is--
    (i) Involved in the same firm for which the individual is seeking 
certification, or an affiliate of that firm;
    (ii) Involved in the same or a similar line of business; or
    (iii) Engaged in an ongoing business relationship with the firm, or 
an affiliate of the firm, for which the individual is seeking 
certification.
    (2) To overcome this presumption and permit the interests or assets 
to be counted, the disadvantaged individual must demonstrate to you, by 
clear and convincing evidence, that--
    (i) The gift or transfer to the disadvantaged individual was made 
for reasons other than obtaining certification as a DBE; and
    (ii) The disadvantaged individual actually controls the management, 
policy, and operations of the firm, notwithstanding the continuing 
participation of a non-disadvantaged individual who provided the gift or 
transfer.
    (i) You must apply the following rules in situations in which 
marital assets form a basis for ownership of a firm:
    (1) When marital assets (other than the assets of the business in 
question), held jointly or as community property by both spouses, are 
used to acquire the ownership interest asserted by one spouse, you must 
deem the ownership interest in the firm to have been acquired by that 
spouse with his or her own individual resources, provided that the other 
spouse irrevocably renounces and transfers all rights in the ownership 
interest in the manner sanctioned by the laws of the state in which 
either spouse or the firm is domiciled. You do not count a greater 
portion of joint or community property assets toward ownership than 
state law would recognize as belonging to the socially and economically 
disadvantaged owner of the applicant firm.
    (2) A copy of the document legally transferring and renouncing the 
other spouse's rights in the jointly owned or community assets used to 
acquire an ownership interest in the firm must be included as part of 
the firm's application for DBE certification.
    (j) You may consider the following factors in determining the 
ownership of a firm. However, you must not regard a contribution of 
capital as failing to be real and substantial, or find a firm 
ineligible, solely because--
    (1) A socially and economically disadvantaged individual acquired 
his or her ownership interest as the result of a gift, or transfer 
without adequate consideration, other than the types set forth in 
paragraph (h) of this section;
    (2) There is a provision for the co-signature of a spouse who is not 
a socially and economically disadvantaged individual on financing 
agreements, contracts for the purchase or sale of real or personal 
property, bank signature cards, or other documents; or
    (3) Ownership of the firm in question or its assets is transferred 
for adequate consideration from a spouse who is not a socially and 
economically disadvantaged individual to a spouse who is such an 
individual. In this case, you must give particularly close and careful 
scrutiny to the ownership and control of a firm to ensure that it is 
owned and controlled, in substance as well as in form, by a socially and 
economically disadvantaged individual.

[64 FR 5126, Feb. 2, 1999, as amended at 79 FR 59597, Oct. 2, 2014]



Sec.  26.71  What rules govern determinations concerning control?

    (a) In determining whether socially and economically disadvantaged 
owners control a firm, you must consider all the facts in the record, 
viewed as a whole.
    (b) Only an independent business may be certified as a DBE. An 
independent business is one the viability of which

[[Page 273]]

does not depend on its relationship with another firm or firms.
    (1) In determining whether a potential DBE is an independent 
business, you must scrutinize relationships with non-DBE firms, in such 
areas as personnel, facilities, equipment, financial and/or bonding 
support, and other resources.
    (2) You must consider whether present or recent employer/employee 
relationships between the disadvantaged owner(s) of the potential DBE 
and non-DBE firms or persons associated with non-DBE firms compromise 
the independence of the potential DBE firm.
    (3) You must examine the firm's relationships with prime contractors 
to determine whether a pattern of exclusive or primary dealings with a 
prime contractor compromises the independence of the potential DBE firm.
    (4) In considering factors related to the independence of a 
potential DBE firm, you must consider the consistency of relationships 
between the potential DBE and non-DBE firms with normal industry 
practice.
    (c) A DBE firm must not be subject to any formal or informal 
restrictions which limit the customary discretion of the socially and 
economically disadvantaged owners. There can be no restrictions through 
corporate charter provisions, by-law provisions, contracts or any other 
formal or informal devices (e.g., cumulative voting rights, voting 
powers attached to different classes of stock, employment contracts, 
requirements for concurrence by non-disadvantaged partners, conditions 
precedent or subsequent, executory agreements, voting trusts, 
restrictions on or assignments of voting rights) that prevent the 
socially and economically disadvantaged owners, without the cooperation 
or vote of any non-disadvantaged individual, from making any business 
decision of the firm. This paragraph does not preclude a spousal co-
signature on documents as provided for in Sec.  26.69(j)(2).
    (d) The socially and economically disadvantaged owners must possess 
the power to direct or cause the direction of the management and 
policies of the firm and to make day-to-day as well as long-term 
decisions on matters of management, policy and operations.
    (1) A disadvantaged owner must hold the highest officer position in 
the company (e.g., chief executive officer or president).
    (2) In a corporation, disadvantaged owners must control the board of 
directors.
    (3) In a partnership, one or more disadvantaged owners must serve as 
general partners, with control over all partnership decisions.
    (e) Individuals who are not socially and economically disadvantaged 
or immediate family members may be involved in a DBE firm as owners, 
managers, employees, stockholders, officers, and/or directors. Such 
individuals must not, however possess or exercise the power to control 
the firm, or be disproportionately responsible for the operation of the 
firm.
    (f) The socially and economically disadvantaged owners of the firm 
may delegate various areas of the management, policymaking, or daily 
operations of the firm to other participants in the firm, regardless of 
whether these participants are socially and economically disadvantaged 
individuals. Such delegations of authority must be revocable, and the 
socially and economically disadvantaged owners must retain the power to 
hire and fire any person to whom such authority is delegated. The 
managerial role of the socially and economically disadvantaged owners in 
the firm's overall affairs must be such that the recipient can 
reasonably conclude that the socially and economically disadvantaged 
owners actually exercise control over the firm's operations, management, 
and policy.
    (g) The socially and economically disadvantaged owners must have an 
overall understanding of, and managerial and technical competence and 
experience directly related to, the type of business in which the firm 
is engaged and the firm's operations. The socially and economically 
disadvantaged owners are not required to have experience or expertise in 
every critical area of the firm's operations, or to have greater 
experience or expertise in a given field than managers or key employees.

[[Page 274]]

The socially and economically disadvantaged owners must have the ability 
to intelligently and critically evaluate information presented by other 
participants in the firm's activities and to use this information to 
make independent decisions concerning the firm's daily operations, 
management, and policymaking. Generally, expertise limited to office 
management, administration, or bookkeeping functions unrelated to the 
principal business activities of the firm is insufficient to demonstrate 
control.
    (h) If state or local law requires the persons to have a particular 
license or other credential in order to own and/or control a certain 
type of firm, then the socially and economically disadvantaged persons 
who own and control a potential DBE firm of that type must possess the 
required license or credential. If state or local law does not require 
such a person to have such a license or credential to own and/or control 
a firm, you must not deny certification solely on the ground that the 
person lacks the license or credential. However, you may take into 
account the absence of the license or credential as one factor in 
determining whether the socially and economically disadvantaged owners 
actually control the firm.
    (i)(1) You may consider differences in remuneration between the 
socially and economically disadvantaged owners and other participants in 
the firm in determining whether to certify a firm as a DBE. Such 
consideration shall be in the context of the duties of the persons 
involved, normal industry practices, the firm's policy and practice 
concerning reinvestment of income, and any other explanations for the 
differences proffered by the firm. You may determine that a firm is 
controlled by its socially and economically disadvantaged owner although 
that owner's remuneration is lower than that of some other participants 
in the firm.
    (2) In a case where a non-disadvantaged individual formerly 
controlled the firm, and a socially and economically disadvantaged 
individual now controls it, you may consider a difference between the 
remuneration of the former and current controller of the firm as a 
factor in determining who controls the firm, particularly when the non-
disadvantaged individual remains involved with the firm and continues to 
receive greater compensation than the disadvantaged individual.
    (j) In order to be viewed as controlling a firm, a socially and 
economically disadvantaged owner cannot engage in outside employment or 
other business interests that conflict with the management of the firm 
or prevent the individual from devoting sufficient time and attention to 
the affairs of the firm to control its activities. For example, absentee 
ownership of a business and part-time work in a full-time firm are not 
viewed as constituting control. However, an individual could be viewed 
as controlling a part-time business that operates only on evenings and/
or weekends, if the individual controls it all the time it is operating.
    (k)(1) A socially and economically disadvantaged individual may 
control a firm even though one or more of the individual's immediate 
family members (who themselves are not socially and economically 
disadvantaged individuals) participate in the firm as a manager, 
employee, owner, or in another capacity. Except as otherwise provided in 
this paragraph, you must make a judgment about the control the socially 
and economically disadvantaged owner exercises vis-a-vis other persons 
involved in the business as you do in other situations, without regard 
to whether or not the other persons are immediate family members.
    (2) If you cannot determine that the socially and economically 
disadvantaged owners--as distinct from the family as a whole--control 
the firm, then the socially and economically disadvantaged owners have 
failed to carry their burden of proof concerning control, even though 
they may participate significantly in the firm's activities.
    (l) Where a firm was formerly owned and/or controlled by a non-
disadvantaged individual (whether or not an immediate family member), 
ownership and/or control were transferred to a socially and economically 
disadvantaged individual, and the nondisadvantaged individual remains 
involved with the

[[Page 275]]

firm in any capacity, there is a rebuttable presumption of control by 
the non-disadvantaged individual unless the disadvantaged individual now 
owning the firm demonstrates to you, by clear and convincing evidence, 
that:
    (1) The transfer of ownership and/or control to the disadvantaged 
individual was made for reasons other than obtaining certification as a 
DBE; and
    (2) The disadvantaged individual actually controls the management, 
policy, and operations of the firm, notwithstanding the continuing 
participation of a nondisadvantaged individual who formerly owned and/or 
controlled the firm.
    (m) In determining whether a firm is controlled by its socially and 
economically disadvantaged owners, you may consider whether the firm 
owns equipment necessary to perform its work. However, you must not 
determine that a firm is not controlled by socially and economically 
disadvantaged individuals solely because the firm leases, rather than 
owns, such equipment, where leasing equipment is a normal industry 
practice and the lease does not involve a relationship with a prime 
contractor or other party that compromises the independence of the firm.
    (n) You must grant certification to a firm only for specific types 
of work in which the socially and economically disadvantaged owners have 
the ability to control the firm. To become certified in an additional 
type of work, the firm need demonstrate to you only that its socially 
and economically disadvantaged owners are able to control the firm with 
respect to that type of work. You must not require that the firm be 
recertified or submit a new application for certification, but you must 
verify the disadvantaged owner's control of the firm in the additional 
type of work.
    (1) The types of work a firm can perform (whether on initial 
certification or when a new type of work is added) must be described in 
terms of the most specific available NAICS code for that type of work. 
If you choose, you may also, in addition to applying the appropriate 
NAICS code, apply a descriptor from a classification scheme of 
equivalent detail and specificity. A correct NAICS code is one that 
describes, as specifically as possible, the principal goods or services 
which the firm would provide to DOT recipients. Multiple NAICS codes may 
be assigned where appropriate. Program participants must rely on, and 
not depart from, the plain meaning of NAICS code descriptions in 
determining the scope of a firm's certification. If your Directory does 
not list types of work for any firm in a manner consistent with this 
paragraph (a)(1), you must update the Directory entry for that firm to 
meet the requirements of this paragraph (a)(1) by August 28, 2011.
    (2) Firms and recipients must check carefully to make sure that the 
NAICS codes cited in a certification are kept up-to-date and accurately 
reflect work which the UCP has determined the firm's owners can control. 
The firm bears the burden of providing detailed company information the 
certifying agency needs to make an appropriate NAICS code designation.
    (3) If a firm believes that there is not a NAICS code that fully or 
clearly describes the type(s) of work in which it is seeking to be 
certified as a DBE, the firm may request that the certifying agency, in 
its certification documentation, supplement the assigned NAICS code(s) 
with a clear, specific, and detailed narrative description of the type 
of work in which the firm is certified. A vague, general, or confusing 
description is not sufficient for this purpose, and recipients should 
not rely on such a description in determining whether a firm's 
participation can be counted toward DBE goals.
    (4) A certifier is not precluded from changing a certification 
classification or description if there is a factual basis in the record. 
However, certifiers must not make after-the-fact statements about the 
scope of a certification, not supported by evidence in the record of the 
certification action.
    (o) A business operating under a franchise or license agreement may 
be certified if it meets the standards in this subpart and the 
franchiser or licenser is not affiliated with the franchisee or 
licensee. In determining whether affiliation exists, you should 
generally not consider the restraints relating to standardized quality, 
advertising, accounting format, and other provisions

[[Page 276]]

imposed on the franchisee or licensee by the franchise agreement or 
license, provided that the franchisee or licensee has the right to 
profit from its efforts and bears the risk of loss commensurate with 
ownership. Alternatively, even though a franchisee or licensee may not 
be controlled by virtue of such provisions in the franchise agreement or 
license, affiliation could arise through other means, such as common 
management or excessive restrictions on the sale or transfer of the 
franchise interest or license.
    (p) In order for a partnership to be controlled by socially and 
economically disadvantaged individuals, any non-disadvantaged partners 
must not have the power, without the specific written concurrence of the 
socially and economically disadvantaged partner(s), to contractually 
bind the partnership or subject the partnership to contract or tort 
liability.
    (q) The socially and economically disadvantaged individuals 
controlling a firm may use an employee leasing company. The use of such 
a company does not preclude the socially and economically disadvantaged 
individuals from controlling their firm if they continue to maintain an 
employer-employee relationship with the leased employees. This includes 
being responsible for hiring, firing, training, assigning, and otherwise 
controlling the on-the-job activities of the employees, as well as 
ultimate responsibility for wage and tax obligations related to the 
employees.

[64 FR 5126, Feb. 2, 1999, as amended at 76 FR 5099, Jan. 28, 2011; 79 
FR 59597, Oct. 2, 2014]



Sec.  26.73  What are other rules affecting certification?

    (a)(1) Consideration of whether a firm performs a commercially 
useful function or is a regular dealer pertains solely to counting 
toward DBE goals the participation of firms that have already been 
certified as DBEs. Except as provided in paragraph (a)(2) of this 
section, you must not consider commercially useful function issues in 
any way in making decisions about whether to certify a firm as a DBE.
    (2) You may consider, in making certification decisions, whether a 
firm has exhibited a pattern of conduct indicating its involvement in 
attempts to evade or subvert the intent or requirements of the DBE 
program.
    (b)(1) You must evaluate the eligibility of a firm on the basis of 
present circumstances. You must not refuse to certify a firm based 
solely on historical information indicating a lack of ownership or 
control of the firm by socially and economically disadvantaged 
individuals at some time in the past, if the firm currently meets the 
ownership and control standards of this part.
    (2) You must not refuse to certify a firm solely on the basis that 
it is a newly formed firm, has not completed projects or contracts at 
the time of its application, has not yet realized profits from its 
activities, or has not demonstrated a potential for success. If the firm 
meets disadvantaged, size, ownership, and control requirements of this 
Part, the firm is eligible for certification.
    (c) DBE firms and firms seeking DBE certification shall cooperate 
fully with your requests (and DOT requests) for information relevant to 
the certification process. Failure or refusal to provide such 
information is a ground for a denial or removal of certification.
    (d) Only firms organized for profit may be eligible DBEs. Not-for-
profit organizations, even though controlled by socially and 
economically disadvantaged individuals, are not eligible to be certified 
as DBEs.
    (e) An eligible DBE firm must be owned by individuals who are 
socially and economically disadvantaged. Except as provided in this 
paragraph, a firm that is not owned by such individuals, but instead is 
owned by another firm--even a DBE firm--cannot be an eligible DBE.
    (1) If socially and economically disadvantaged individuals own and 
control a firm through a parent or holding company, established for tax, 
capitalization or other purposes consistent with industry practice, and 
the parent or holding company in turn owns and controls an operating 
subsidiary, you may certify the subsidiary if it otherwise meets all 
requirements of this subpart. In this situation, the individual owners 
and controllers of the parent or holding company are deemed

[[Page 277]]

to control the subsidiary through the parent or holding company.
    (2) You may certify such a subsidiary only if there is cumulatively 
51 percent ownership of the subsidiary by socially and economically 
disadvantaged individuals. The following examples illustrate how this 
cumulative ownership provision works:

    Example 1: Socially and economically disadvantaged individuals own 
100 percent of a holding company, which has a wholly-owned subsidiary. 
The subsidiary may be certified, if it meets all other requirements.
    Example 2: Disadvantaged individuals own 100 percent of the holding 
company, which owns 51 percent of a subsidiary. The subsidiary may be 
certified, if all other requirements are met.
    Example 3: Disadvantaged individuals own 80 percent of the holding 
company, which in turn owns 70 percent of a subsidiary. In this case, 
the cumulative ownership of the subsidiary by disadvantaged individuals 
is 56 percent (80 percent of the 70 percent). This is more than 51 
percent, so you may certify the subsidiary, if all other requirements 
are met.
    Example 4: Same as Example 2 or 3, but someone other than the 
socially and economically disadvantaged owners of the parent or holding 
company controls the subsidiary. Even though the subsidiary is owned by 
disadvantaged individuals, through the holding or parent company, you 
cannot certify it because it fails to meet control requirements.
    Example 5: Disadvantaged individuals own 60 percent of the holding 
company, which in turn owns 51 percent of a subsidiary. In this case, 
the cumulative ownership of the subsidiary by disadvantaged individuals 
is about 31 percent. This is less than 51 percent, so you cannot certify 
the subsidiary.
    Example 6: The holding company, in addition to the subsidiary 
seeking certification, owns several other companies. The combined gross 
receipts of the holding companies and its subsidiaries are greater than 
the size standard for the subsidiary seeking certification and/or the 
gross receipts cap of Sec.  26.65(b). Under the rules concerning 
affiliation, the subsidiary fails to meet the size standard and cannot 
be certified.

    (f) Recognition of a business as a separate entity for tax or 
corporate purposes is not necessarily sufficient to demonstrate that a 
firm is an independent business, owned and controlled by socially and 
economically disadvantaged individuals.
    (g) You must not require a DBE firm to be prequalified as a 
condition for certification.
    (h) A firm that is owned by an Indian tribe or Native Hawaiian 
organization, rather than by Indians or Native Hawaiians as individuals, 
may be eligible for certification. Such a firm must meet the size 
standards of Sec.  26.65. Such a firm must be controlled by socially and 
economically disadvantaged individuals, as provided in Sec.  26.71.
    (i) The following special rules apply to the certification of firms 
related to Alaska Native Corporations (ANCs).
    (1) Notwithstanding any other provisions of this subpart, a direct 
or indirect subsidiary corporation, joint venture, or partnership entity 
of an ANC is eligible for certification as a DBE if it meets all of the 
following requirements:
    (i) The Settlement Common Stock of the underlying ANC and other 
stock of the ANC held by holders of the Settlement Common Stock and by 
Natives and descendents of Natives represents a majority of both the 
total equity of the ANC and the total voting power of the corporation 
for purposes of electing directors;
    (ii) The shares of stock or other units of common ownership interest 
in the subsidiary, joint venture, or partnership entity held by the ANC 
and by holders of its Settlement Common Stock represent a majority of 
both the total equity of the entity and the total voting power of the 
entity for the purpose of electing directors, the general partner, or 
principal officers; and
    (iii) The subsidiary, joint venture, or partnership entity has been 
certified by the Small Business Administration under the 8(a) or small 
disadvantaged business program.
    (2) As a recipient to whom an ANC-related entity applies for 
certification, you do not use the DOT uniform application form (see 
Appendix F of this part). You must obtain from the firm documentation 
sufficient to demonstrate that entity meets the requirements of 
paragraph (i)(1) of this section. You must also obtain sufficient 
information about the firm to allow you to administer your program 
(e.g., information that would appear in your DBE Directory).
    (3) If an ANC-related firm does not meet all the conditions of 
paragraph (i)(1) of this section, then it must meet

[[Page 278]]

the requirements of paragraph (h) of this section in order to be 
certified, on the same basis as firms owned by Indian Tribes or Native 
Hawaiian Organizations.

[64 FR 5126, Feb. 2, 1999, as amended at 68 FR 35555, June 16, 2003; 76 
FR 5099, Jan. 28, 2011; 79 FR 59598, Oct. 2, 2014]



                   Subpart E_Certification Procedures



Sec.  26.81  What are the requirements for Unified Certification Programs?

    (a) You and all other DOT recipients in your state must participate 
in a Unified Certification Program (UCP).
    (1) Within three years of March 4, 1999, you and the other 
recipients in your state must sign an agreement establishing the UCP for 
that state and submit the agreement to the Secretary for approval. The 
Secretary may, on the basis of extenuating circumstances shown by the 
recipients in the state, extend this deadline for no more than one 
additional year.
    (2) The agreement must provide for the establishment of a UCP 
meeting all the requirements of this section. The agreement must specify 
that the UCP will follow all certification procedures and standards of 
this part, on the same basis as recipients; that the UCP shall cooperate 
fully with oversight, review, and monitoring activities of DOT and its 
operating administrations; and that the UCP shall implement DOT 
directives and guidance concerning certification matters. The agreement 
shall also commit recipients to ensuring that the UCP has sufficient 
resources and expertise to carry out the requirements of this part. The 
agreement shall include an implementation schedule ensuring that the UCP 
is fully operational no later than 18 months following the approval of 
the agreement by the Secretary.
    (3) Subject to approval by the Secretary, the UCP in each state may 
take any form acceptable to the recipients in that state.
    (4) The Secretary shall review the UCP and approve it, disapprove 
it, or remand it to the recipients in the state for revisions. A 
complete agreement which is not disapproved or remanded within 180 days 
of its receipt is deemed to be accepted.
    (5) If you and the other recipients in your state fail to meet the 
deadlines set forth in this paragraph (a), you shall have the 
opportunity to make an explanation to the Secretary why a deadline could 
not be met and why meeting the deadline was beyond your control. If you 
fail to make such an explanation, or the explanation does not justify 
the failure to meet the deadline, the Secretary shall direct you to 
complete the required action by a date certain. If you and the other 
recipients fail to carry out this direction in a timely manner, you are 
collectively in noncompliance with this part.
    (b) The UCP shall make all certification decisions on behalf of all 
DOT recipients in the state with respect to participation in the DOT DBE 
Program.
    (1) Certification decisions by the UCP shall be binding on all DOT 
recipients within the state.
    (2) The UCP shall provide ``one-stop shopping'' to applicants for 
certification, such that an applicant is required to apply only once for 
a DBE certification that will be honored by all recipients in the state.
    (3) All obligations of recipients with respect to certification and 
nondiscrimination must be carried out by UCPs, and recipients may use 
only UCPs that comply with the certification and nondiscrimination 
requirements of this part.
    (c) All certifications by UCPs shall be pre-certifications; i.e., 
certifications that have been made final before the due date for bids or 
offers on a contract on which a firm seeks to participate as a DBE.
    (d) A UCP is not required to process an application for 
certification from a firm having its principal place of business outside 
the state if the firm is not certified by the UCP in the state in which 
it maintains its principal place of business. The ``home state'' UCP 
shall share its information and documents concerning the firm with other 
UCPs that are considering the firm's application.
    (e) Subject to DOT approval as provided in this section, the 
recipients in

[[Page 279]]

two or more states may form a regional UCP. UCPs may also enter into 
written reciprocity agreements with other UCPs. Such an agreement shall 
outline the specific responsibilities of each participant. A UCP may 
accept the certification of any other UCP or DOT recipient.
    (f) Pending the establishment of UCPs meeting the requirements of 
this section, you may enter into agreements with other recipients, on a 
regional or inter-jurisdictional basis, to perform certification 
functions required by this part. You may also grant reciprocity to other 
recipient's certification decisions.
    (g) Each UCP shall maintain a unified DBE directory containing, for 
all firms certified by the UCP (including those from other states 
certified under the provisions of this part), the information required 
by Sec.  26.31. The UCP shall make the directory available to the public 
electronically, on the internet, as well as in print. The UCP shall 
update the electronic version of the directory by including additions, 
deletions, and other changes as soon as they are made and shall revise 
the print version of the Directory at least once a year.
    (h) Except as otherwise specified in this section, all provisions of 
this subpart and subpart D of this part pertaining to recipients also 
apply to UCPs.

[64 FR 5126, Feb. 2, 1999, as amended at 76 FR 5100, Jan. 28, 2011]



Sec.  26.83  What procedures do recipients follow in making certification
decisions?

    (a) You must ensure that only firms certified as eligible DBEs under 
this section participate as DBEs in your program.
    (b) You must determine the eligibility of firms as DBEs consistent 
with the standards of subpart D of this part. When a UCP is formed, the 
UCP must meet all the requirements of subpart D of this part and this 
subpart that recipients are required to meet.
    (c)(1) You must take all the following steps in determining whether 
a DBE firm meets the standards of subpart D of this part:
    (i) Perform an on-site visit to the firm's principal place of 
business. You must interview the principal officers and review their 
r[eacute]sum[eacute]s and/or work histories. You may interview key 
personnel of the firm if necessary. You must also perform an on-site 
visit to job sites if there are such sites on which the firm is working 
at the time of the eligibility investigation in your jurisdiction or 
local area. You may rely upon the site visit report of any other 
recipient with respect to a firm applying for certification;
    (ii) Analyze documentation related to the legal structure, 
ownership, and control of the applicant firm. This includes, but is not 
limited to, Articles of Incorporation/Organization; corporate by-laws or 
operating agreements; organizational, annual and board/member meeting 
records; stock ledgers and certificates; and State-issued Certificates 
of Good Standing
    (iii) Analyze the bonding and financial capacity of the firm; lease 
and loan agreements; bank account signature cards;
    (iv) Determine the work history of the firm, including contracts it 
has received, work it has completed; and payroll records;
    (v) Obtain a statement from the firm of the type of work it prefers 
to perform as part of the DBE program and its preferred locations for 
performing the work, if any.
    (vi) Obtain or compile a list of the equipment owned by or available 
to the firm and the licenses the firm and its key personnel possess to 
perform the work it seeks to do as part of the DBE program;
    (vii) Obtain complete Federal income tax returns (or requests for 
extensions) filed by the firm, its affiliates, and the socially and 
economically disadvantaged owners for the last 3 years. A complete 
return includes all forms, schedules, and statements filed with the 
Internal Revenue Service.
    (viii) Require potential DBEs to complete and submit an appropriate 
application form, except as otherwise provided in Sec.  26.85 of this 
part.
    (2) You must use the application form provided in Appendix F to this 
part without change or revision. However, you may provide in your DBE

[[Page 280]]

program, with the written approval of the concerned operating 
administration, for supplementing the form by requesting specified 
additional information not inconsistent with this part.
    (3) You must make sure that the applicant attests to the accuracy 
and truthfulness of the information on the application form. This shall 
be done either in the form of an affidavit sworn to by the applicant 
before a person who is authorized by State law to administer oaths or in 
the form of an unsworn declaration executed under penalty of perjury of 
the laws of the United States.
    (4) You must review all information on the form prior to making a 
decision about the eligibility of the firm. You may request 
clarification of information contained in the application at any time in 
the application process.
    (d) When another recipient, in connection with its consideration of 
the eligibility of a firm, makes a written request for certification 
information you have obtained about that firm (e.g., including 
application materials or the report of a site visit, if you have made 
one to the firm), you must promptly make the information available to 
the other recipient.
    (e) [Reserved]
    (f) Subject to the approval of the concerned operating 
administration as part of your DBE program, you may impose a reasonable 
application fee for certification. Fee waivers shall be made in 
appropriate cases.
    (g) You must safeguard from disclosure to unauthorized persons 
information gathered as part of the certification process that may 
reasonably be regarded as proprietary or other confidential business 
information, consistent with applicable Federal, state, and local law.
    (h)(1) Once you have certified a DBE, it shall remain certified 
until and unless you have removed its certification, in whole or in 
part, through the procedures of Sec.  26.87 of this part, except as 
provided in Sec.  26.67(b)(1) of this part.
    (2) You may not require DBEs to reapply for certification or undergo 
a recertification process. However, you may conduct a certification 
review of a certified DBE firm, including a new on-site review, if 
appropriate in light of changed circumstances (e.g., of the kind 
requiring notice under paragraph (i) of this section or relating to 
suspension of certification under Sec.  26.88), a complaint, or other 
information concerning the firm's eligibility. If information comes to 
your attention that leads you to question the firm's eligibility, you 
may conduct an on-site review on an unannounced basis, at the firm's 
offices and job sites.
    (i) If you are a DBE, you must inform the recipient or UCP in 
writing of any change in circumstances affecting your ability to meet 
size, disadvantaged status, ownership, or control requirements of this 
part or any material change in the information provided in your 
application form.
    (1) Changes in management responsibility among members of a limited 
liability company are covered by this requirement.
    (2) You must attach supporting documentation describing in detail 
the nature of such changes.
    (3) The notice must take the form of an affidavit sworn to by the 
applicant before a person who is authorized by state law to administer 
oaths or of an unsworn declaration executed under penalty of perjury of 
the laws of the United States. You must provide the written notification 
within 30 days of the occurrence of the change. If you fail to make 
timely notification of such a change, you will be deemed to have failed 
to cooperate under Sec.  26.109(c).
    (j) If you are a DBE, you must provide to the recipient, every year 
on the anniversary of the date of your certification, an affidavit sworn 
to by the firm's owners before a person who is authorized by State law 
to administer oaths or an unsworn declaration executed under penalty of 
perjury of the laws of the United States. This affidavit must affirm 
that there have been no changes in the firm's circumstances affecting 
its ability to meet size, disadvantaged status, ownership, or control 
requirements of this part or any material changes in the information 
provided in its application form, except for changes about which you 
have notified the recipient under paragraph (i)

[[Page 281]]

of this section. The affidavit shall specifically affirm that your firm 
continues to meet SBA business size criteria and the overall gross 
receipts cap of this part, documenting this affirmation with supporting 
documentation of your firm's size and gross receipts (e.g., submission 
of Federal tax returns). If you fail to provide this affidavit in a 
timely manner, you will be deemed to have failed to cooperate under 
Sec.  26.109(c).
    (k) If you are a recipient, you must make decisions on applications 
for certification within 90 days of receiving from the applicant firm 
all information required under this part. You may extend this time 
period once, for no more than an additional 60 days, upon written notice 
to the firm, explaining fully and specifically the reasons for the 
extension. You may establish a different time frame in your DBE program, 
upon a showing that this time frame is not feasible, and subject to the 
approval of the concerned operating administration. Your failure to make 
a decision by the applicable deadline under this paragraph is deemed a 
constructive denial of the application, on the basis of which the firm 
may appeal to DOT under Sec.  26.89.
    (l) As a recipient or UCP, you must advise each applicant within 30 
days from your receipt of the application whether the application is 
complete and suitable for evaluation and, if not, what additional 
information or action is required.
    (m) Except as otherwise provided in this paragraph, if an applicant 
for DBE certification withdraws its application before you have issued a 
decision on the application, the applicant can resubmit the application 
at any time. As a recipient or UCP, you may not apply the waiting period 
provided under Sec.  26.86(c) of this part before allowing the applicant 
to resubmit its application. However, you may place the reapplication at 
the ``end of the line,'' behind other applications that have been made 
since the firm's previous application was withdrawn. You may also apply 
the waiting period provided under Sec.  26.86(c) of this part to a firm 
that has established a pattern of frequently withdrawing applications 
before you make a decision.

[64 FR 5126, Feb. 2, 1999, as amended at 68 FR 35555, June 16, 2003; 76 
FR 5100, Jan. 28, 2011; 79 FR 59598, Oct. 2, 2014]



Sec.  26.85  Interstate certification.

    (a) This section applies with respect to any firm that is currently 
certified in its home state.
    (b) When a firm currently certified in its home state (``State A'') 
applies to another State (``State B'') for DBE certification, State B 
may, at its discretion, accept State A's certification and certify the 
firm, without further procedures.
    (1) To obtain certification in this manner, the firm must provide to 
State B a copy of its certification notice from State A.
    (2) Before certifying the firm, State B must confirm that the firm 
has a current valid certification from State A. State B can do so by 
reviewing State A's electronic directory or obtaining written 
confirmation from State A.
    (c) In any situation in which State B chooses not to accept State 
A's certification of a firm as provided in paragraph (b) of this 
section, as the applicant firm you must provide the information in 
paragraphs (c)(1) through (4) of this section to State B.
    (1) You must provide to State B a complete copy of the application 
form, all supporting documents, and any other information you have 
submitted to State A or any other state related to your firm's 
certification. This includes affidavits of no change (see Sec.  
26.83(j)) and any notices of changes (see Sec.  26.83(i)) that you have 
submitted to State A, as well as any correspondence you have had with 
State A's UCP or any other recipient concerning your application or 
status as a DBE firm.
    (2) You must also provide to State B any notices or correspondence 
from states other than State A relating to your status as an applicant 
or certified DBE in those states. For example, if you have been denied 
certification or decertified in State C, or subject to a decertification 
action there, you must inform State B of this fact and provide all 
documentation concerning this action to State B.

[[Page 282]]

    (3) If you have filed a certification appeal with DOT (see Sec.  
26.89), you must inform State B of the fact and provide your letter of 
appeal and DOT's response to State B.
    (4) You must submit an affidavit sworn to by the firm's owners 
before a person who is authorized by State law to administer oaths or an 
unsworn declaration executed under penalty of perjury of the laws of the 
United States.
    (i) This affidavit must affirm that you have submitted all the 
information required by 49 CFR 26.85(c) and the information is complete 
and, in the case of the information required by Sec.  26.85(c)(1), is an 
identical copy of the information submitted to State A.
    (ii) If the on-site report from State A supporting your 
certification in State A is more than three years old, as of the date of 
your application to State B, State B may require that your affidavit 
also affirm that the facts in the on-site report remain true and 
correct.
    (d) As State B, when you receive from an applicant firm all the 
information required by paragraph (c) of this section, you must take the 
following actions:
    (1) Within seven days contact State A and request a copy of the site 
visit review report for the firm (see Sec.  26.83(c)(1)), any updates to 
the site visit review, and any evaluation of the firm based on the site 
visit. As State A, you must transmit this information to State B within 
seven days of receiving the request. A pattern by State B of not making 
such requests in a timely manner or by ``State A'' or any other State of 
not complying with such requests in a timely manner is noncompliance 
with this Part.
    (2) Determine whether there is good cause to believe that State A's 
certification of the firm is erroneous or should not apply in your 
State. Reasons for making such a determination may include the 
following:
    (i) Evidence that State A's certification was obtained by fraud;
    (ii) New information, not available to State A at the time of its 
certification, showing that the firm does not meet all eligibility 
criteria;
    (iii) State A's certification was factually erroneous or was 
inconsistent with the requirements of this part;
    (iv) The State law of State B requires a result different from that 
of the State law of State A.
    (v) The information provided by the applicant firm did not meet the 
requirements of paragraph (c) of this section.
    (3) If, as State B, unless you have determined that there is good 
cause to believe that State A's certification is erroneous or should not 
apply in your State, you must, no later than 60 days from the date on 
which you received from the applicant firm all the information required 
by paragraph (c) of this section, send to the applicant firm a notice 
that it is certified and place the firm on your directory of certified 
firms.
    (4) If, as State B, you have determined that there is good cause to 
believe that State A's certification is erroneous or should not apply in 
your State, you must, no later than 60 days from the date on which you 
received from the applicant firm all the information required by 
paragraph (c) of this section, send to the applicant firm a notice 
stating the reasons for your determination.
    (i) This notice must state with particularity the specific reasons 
why State B believes that the firm does not meet the requirements of 
this Part for DBE eligibility and must offer the firm an opportunity to 
respond to State B with respect to these reasons.
    (ii) The firm may elect to respond in writing, to request an in-
person meeting with State B's decision maker to discuss State B's 
objections to the firm's eligibility, or both. If the firm requests a 
meeting, as State B you must schedule the meeting to take place within 
30 days of receiving the firm's request.
    (iii) The firm bears the burden of demonstrating, by a preponderance 
of evidence, that it meets the requirements of this Part with respect to 
the particularized issues raised by State B's notice. The firm is not 
otherwise responsible for further demonstrating its eligibility to State 
B.
    (iv) The decision maker for State B must be an individual who is 
thoroughly familiar with the provisions of this Part concerning 
certification.

[[Page 283]]

    (v) State B must issue a written decision within 30 days of the 
receipt of the written response from the firm or the meeting with the 
decision maker, whichever is later.
    (vi) The firm's application for certification is stayed pending the 
outcome of this process.
    (vii) A decision under this paragraph (d)(4) may be appealed to the 
Departmental Office of Civil Rights under sSec.  26.89 of this part.
    (e) As State B, if you have not received from State A a copy of the 
site visit review report by a date 14 days after you have made a timely 
request for it, you may hold action required by paragraphs (d)(2) 
through (4) of this section in abeyance pending receipt of the site 
visit review report. In this event, you must, no later than 30 days from 
the date on which you received from an applicant firm all the 
information required by paragraph (c) of this section, notify the firm 
in writing of the delay in the process and the reason for it.
    (f)(1) As a UCP, when you deny a firm's application, reject the 
application of a firm certified in State A or any other State in which 
the firm is certified, through the procedures of paragraph (d)(4) of 
this section, or decertify a firm, in whole or in part, you must make an 
entry in the Department of Transportation Office of Civil Rights' 
(DOCR's) Ineligibility Determination Online Database. You must enter the 
following information:
    (i) The name of the firm;
    (ii) The name(s) of the firm's owner(s);
    (iii) The type and date of the action;
    (iv) The reason for the action.
    (2) As a UCP, you must check the DOCR Web site at least once every 
month to determine whether any firm that is applying to you for 
certification or that you have already certified is on the list.
    (3) For any such firm that is on the list, you must promptly request 
a copy of the listed decision from the UCP that made it. As the UCP 
receiving such a request, you must provide a copy of the decision to the 
requesting UCP within 7 days of receiving the request. As the UCP 
receiving the decision, you must then consider the information in the 
decision in determining what, if any, action to take with respect to the 
certified DBE firm or applicant.
    (g) You must implement the requirements of this section beginning 
January 1, 2012.

[76 FR 5100, Jan. 28, 2011]



Sec.  26.86  What rules govern recipients' denials of initial requests
for certification?

    (a) When you deny a request by a firm, which is not currently 
certified with you, to be certified as a DBE, you must provide the firm 
a written explanation of the reasons for the denial, specifically 
referencing the evidence in the record that supports each reason for the 
denial. All documents and other information on which the denial is based 
must be made available to the applicant, on request.
    (b) [Reserved]
    (c) When a firm is denied certification, you must establish a time 
period of no more than twelve months that must elapse before the firm 
may reapply to the recipient for certification. You may provide, in your 
DBE program, subject to approval by the concerned operating 
administration, a shorter waiting period for reapplication. The time 
period for reapplication begins to run on the date the explanation 
required by paragraph (a) of this section is received by the firm. An 
applicant's appeal of your decision to the Department pursuant to Sec.  
26.89 does not extend this period.
    (d) When you make an administratively final denial of certification 
concerning a firm, the firm may appeal the denial to the Department 
under Sec.  26.89.

[64 FR 5126, Feb. 2, 1999. Redesignated and amended at 68 FR 35555, June 
16, 2003; 79 FR 59598, Oct. 2, 2014]



Sec.  26.87  What procedures does a recipient use to remove a DBE's 
eligibility?

    (a) Ineligibility complaints. (1) Any person may file with you a 
written complaint alleging that a currently-certified firm is ineligible 
and specifying the alleged reasons why the firm is ineligible. You are 
not required to accept a general allegation that a firm is ineligible or 
an anonymous complaint.

[[Page 284]]

The complaint may include any information or arguments supporting the 
complainant's assertion that the firm is ineligible and should not 
continue to be certified. Confidentiality of complainants' identities 
must be protected as provided in Sec.  26.109(b).
    (2) You must review your records concerning the firm, any material 
provided by the firm and the complainant, and other available 
information. You may request additional information from the firm or 
conduct any other investigation that you deem necessary.
    (3) If you determine, based on this review, that there is reasonable 
cause to believe that the firm is ineligible, you must provide written 
notice to the firm that you propose to find the firm ineligible, setting 
forth the reasons for the proposed determination. If you determine that 
such reasonable cause does not exist, you must notify the complainant 
and the firm in writing of this determination and the reasons for it. 
All statements of reasons for findings on the issue of reasonable cause 
must specifically reference the evidence in the record on which each 
reason is based.
    (b) Recipient-initiated proceedings. If, based on notification by 
the firm of a change in its circumstances or other information that 
comes to your attention, you determine that there is reasonable cause to 
believe that a currently certified firm is ineligible, you must provide 
written notice to the firm that you propose to find the firm ineligible, 
setting forth the reasons for the proposed determination. The statement 
of reasons for the finding of reasonable cause must specifically 
reference the evidence in the record on which each reason is based.
    (c) DOT directive to initiate proceeding. (1) If the concerned 
operating administration determines that information in your 
certification records, or other information available to the concerned 
operating administration, provides reasonable cause to believe that a 
firm you certified does not meet the eligibility criteria of this part, 
the concerned operating administration may direct you to initiate a 
proceeding to remove the firm's certification.
    (2) The concerned operating administration must provide you and the 
firm a notice setting forth the reasons for the directive, including any 
relevant documentation or other information.
    (3) You must immediately commence and prosecute a proceeding to 
remove eligibility as provided by paragraph (b) of this section.
    (d) Hearing. When you notify a firm that there is reasonable cause 
to remove its eligibility, as provided in paragraph (a), (b), or (c) of 
this section, you must give the firm an opportunity for an informal 
hearing, at which the firm may respond to the reasons for the proposal 
to remove its eligibility in person and provide information and 
arguments concerning why it should remain certified.
    (1) In such a proceeding, you bear the burden of proving, by a 
preponderance of the evidence, that the firm does not meet the 
certification standards of this part.
    (2) You must maintain a complete record of the hearing, by any means 
acceptable under state law for the retention of a verbatim record of an 
administrative hearing. If there is an appeal to DOT under Sec.  26.89, 
you must provide a transcript of the hearing to DOT and, on request, to 
the firm. You must retain the original record of the hearing. You may 
charge the firm only for the cost of copying the record.
    (3) The firm may elect to present information and arguments in 
writing, without going to a hearing. In such a situation, you bear the 
same burden of proving, by a preponderance of the evidence, that the 
firm does not meet the certification standards, as you would during a 
hearing.
    (e) Separation of functions. You must ensure that the decision in a 
proceeding to remove a firm's eligibility is made by an office and 
personnel that did not take part in actions leading to or seeking to 
implement the proposal to remove the firm's eligibility and are not 
subject, with respect to the matter, to direction from the office or 
personnel who did take part in these actions.
    (1) Your method of implementing this requirement must be made part 
of your DBE program.
    (2) The decisionmaker must be an individual who is knowledgeable 
about

[[Page 285]]

the certification requirements of your DBE program and this part.
    (3) Before a UCP is operational in its state, a small airport or 
small transit authority (i.e., an airport or transit authority serving 
an area with less than 250,000 population) is required to meet this 
requirement only to the extent feasible.
    (f) Grounds for decision. You may base a decision to remove a firm's 
eligibility only on one or more of the following grounds:
    (1) Changes in the firm's circumstances since the certification of 
the firm by the recipient that render the firm unable to meet the 
eligibility standards of this part;
    (2) Information or evidence not available to you at the time the 
firm was certified;
    (3) Information relevant to eligibility that has been concealed or 
misrepresented by the firm;
    (4) A change in the certification standards or requirements of the 
Department since you certified the firm;
    (5) Your decision to certify the firm was clearly erroneous;
    (6) The firm has failed to cooperate with you (see Sec.  26.109(c));
    (7) The firm has exhibited a pattern of conduct indicating its 
involvement in attempts to subvert the intent or requirements of the DBE 
program (see Sec.  26.73(a)(2)); or
    (8) The firm has been suspended or debarred for conduct related to 
the DBE program. The notice required by paragraph (g) of this section 
must include a copy of the suspension or debarment action. A decision to 
remove a firm for this reason shall not be subject to the hearing 
procedures in paragraph (d) of this section.
    (g) Notice of decision. Following your decision, you must provide 
the firm written notice of the decision and the reasons for it, 
including specific references to the evidence in the record that 
supports each reason for the decision. The notice must inform the firm 
of the consequences of your decision and of the availability of an 
appeal to the Department of Transportation under Sec.  26.89. You must 
send copies of the notice to the complainant in an ineligibility 
complaint or the concerned operating administration that had directed 
you to initiate the proceeding. Provided that, when sending such a 
notice to a complainant other than a DOT operating administration, you 
must not include information reasonably construed as confidential 
business information without the written consent of the firm that 
submitted the information.
    (h) [Reserved]
    (i) Status of firm during proceeding. (1) A firm remains an eligible 
DBE during the pendancy of your proceeding to remove its eligibility.
    (2) The firm does not become ineligible until the issuance of the 
notice provided for in paragraph (g) of this section.
    (j) Effects of removal of eligibility. When you remove a firm's 
eligibility, you must take the following action:
    (1) When a prime contractor has made a commitment to using the 
ineligible firm, or you have made a commitment to using a DBE prime 
contractor, but a subcontract or contract has not been executed before 
you issue the decertification notice provided for in paragraph (g) of 
this section, the ineligible firm does not count toward the contract 
goal or overall goal. You must direct the prime contractor to meet the 
contract goal with an eligible DBE firm or demonstrate to you that it 
has made a good faith effort to do so.
    (2) If a prime contractor has executed a subcontract with the firm 
before you have notified the firm of its ineligibility, the prime 
contractor may continue to use the firm on the contract and may continue 
to receive credit toward its DBE goal for the firm's work. In this case, 
or in a case where you have let a prime contract to the DBE that was 
later ruled ineligible, the portion of the ineligible firm's performance 
of the contract remaining after you issued the notice of its 
ineligibility shall not count toward your overall goal, but may count 
toward the contract goal.
    (3) Exception: If the DBE's ineligibility is caused solely by its 
having exceeded the size standard during the performance of the 
contract, you may continue to count its participation on that contract 
toward overall and contract goals.

[[Page 286]]

    (k) Availability of appeal. When you make an administratively final 
removal of a firm's eligibility under this section, the firm may appeal 
the removal to the Department under Sec.  26.89.

[64 FR 5126, Feb. 2, 1999, as amended at 68 FR 35556, June 16, 2003; 76 
FR 5101, Jan. 28, 2011; 79 FR 59599, Oct. 2, 2014]



Sec.  26.88  Summary suspension of certification.

    (a) A recipient shall immediately suspend a DBE's certification 
without adhering to the requirements in Sec.  26.87(d) of this part when 
an individual owner whose ownership and control of the firm are 
necessary to the firm's certification dies or is incarcerated.
    (b)(1) A recipient may immediately suspend a DBE's certification 
without adhering to the requirements in Sec.  26.87(d) when there is 
adequate evidence to believe that there has been a material change in 
circumstances that may affect the eligibility of the DBE firm to remain 
certified, or when the DBE fails to notify the recipient or UCP in 
writing of any material change in circumstances as required by Sec.  
26.83(i) of this part or fails to timely file an affidavit of no change 
under Sec.  26.83(j).
    (2) In determining the adequacy of the evidence to issue a 
suspension under paragraph (b)(1) of this section, the recipient shall 
consider all relevant factors, including how much information is 
available, the credibility of the information and allegations given the 
circumstances, whether or not important allegations are corroborated, 
and what inferences can reasonably be drawn as a result.
    (c) The concerned operating administration may direct the recipient 
to take action pursuant to paragraph (a) or (b) this section if it 
determines that information available to it is sufficient to warrant 
immediate suspension.
    (d) When a firm is suspended pursuant to paragraph (a) or (b) of 
this section, the recipient shall immediately notify the DBE of the 
suspension by certified mail, return receipt requested, to the last 
known address of the owner(s) of the DBE.
    (e) Suspension is a temporary status of ineligibility pending an 
expedited show cause hearing/proceeding under Sec.  26.87 of this part 
to determine whether the DBE is eligible to participate in the program 
and consequently should be removed. The suspension takes effect when the 
DBE receives, or is deemed to have received, the Notice of Suspension.
    (f) While suspended, the DBE may not be considered to meet a 
contract goal on a new contract, and any work it does on a contract 
received during the suspension shall not be counted toward a recipient's 
overall goal. The DBE may continue to perform under an existing contract 
executed before the DBE received a Notice of Suspension and may be 
counted toward the contract goal during the period of suspension as long 
as the DBE is performing a commercially useful function under the 
existing contract.
    (g) Following receipt of the Notice of Suspension, if the DBE 
believes it is no longer eligible, it may voluntarily withdraw from the 
program, in which case no further action is required. If the DBE 
believes that its eligibility should be reinstated, it must provide to 
the recipient information demonstrating that the firm is eligible 
notwithstanding its changed circumstances. Within 30 days of receiving 
this information, the recipient must either lift the suspension and 
reinstate the firm's certification or commence a decertification action 
under Sec.  26.87 of this part. If the recipient commences a 
decertification proceeding, the suspension remains in effect during the 
proceeding.
    (h) The decision to immediately suspend a DBE under paragraph (a) or 
(b) of this section is not appealable to the US Department of 
Transportation. The failure of a recipient to either lift the suspension 
and reinstate the firm or commence a decertification proceeding, as 
required by paragraph (g) of this section, is appealable to the U.S. 
Department of Transportation under Sec.  26.89 of this part, as a 
constructive decertification.

[79 FR 59599, Oct. 2, 2014]

[[Page 287]]



Sec.  26.89  What is the process for certification appeals to the
Department of Transportation?

    (a)(1) If you are a firm that is denied certification or whose 
eligibility is removed by a recipient, including SBA-certified firms, 
you may make an administrative appeal to the Department.
    (2) If you are a complainant in an ineligibility complaint to a 
recipient (including the concerned operating administration in the 
circumstances provided in Sec.  26.87(c)), you may appeal to the 
Department if the recipient does not find reasonable cause to propose 
removing the firm's eligibility or, following a removal of eligibility 
proceeding, determines that the firm is eligible.
    (3) Send appeals to the following address: U.S. Department of 
Transportation, Departmental Office of Civil Rights, 1200 New Jersey 
Avenue SE., Washington, DC 20590-0001.
    (b) Pending the Department's decision in the matter, the recipient's 
decision remains in effect. The Department does not stay the effect of 
the recipient's decision while it is considering an appeal.
    (c) If you want to file an appeal, you must send a letter to the 
Department within 90 days of the date of the recipient's final decision, 
including information and setting forth a full and specific statement as 
to why the decision is erroneous, what significant fact that the 
recipient failed to consider, or what provisions of this Part the 
recipient did not properly apply. The Department may accept an appeal 
filed later than 90 days after the date of the decision if the 
Department determines that there was good cause for the late filing of 
the appeal or in the interest of justice.
    (d) When it receives an appeal, the Department requests a copy of 
the recipient's complete administrative record in the matter. If you are 
the recipient, you must provide the administrative record, including a 
hearing transcript, within 20 days of the Department's request. The 
Department may extend this time period on the basis of a recipient's 
showing of good cause. To facilitate the Department's review of a 
recipient's decision, you must ensure that such administrative records 
are well organized, indexed, and paginated. Records that do not comport 
with these requirements are not acceptable and will be returned to you 
to be corrected immediately. If an appeal is brought concerning one 
recipient's certification decision concerning a firm, and that recipient 
relied on the decision and/or administrative record of another 
recipient, this requirement applies to both recipients involved.
    (e) The Department makes its decision based solely on the entire 
administrative record as supplemented by the appeal. The Department does 
not make a de novo review of the matter and does not conduct a hearing. 
The Department may also supplement the administrative record by adding 
relevant information made available by the DOT Office of Inspector 
General; Federal, State, or local law enforcement authorities; officials 
of a DOT operating administration or other appropriate DOT office; a 
recipient; or a firm or other private party.
    (f) As a recipient, when you provide supplementary information to 
the Department, you shall also make this information available to the 
firm and any third-party complainant involved, consistent with Federal 
or applicable state laws concerning freedom of information and privacy. 
The Department makes available, on request by the firm and any third-
party complainant involved, any supplementary information it receives 
from any source.
    (1) The Department affirms your decision unless it determines, based 
on the entire administrative record, that your decision is unsupported 
by substantial evidence or inconsistent with the substantive or 
procedural provisions of this part concerning certification.
    (2) If the Department determines, after reviewing the entire 
administrative record, that your decision was unsupported by substantial 
evidence or inconsistent with the substantive or procedural provisions 
of this part concerning certification, the Department reverses your 
decision and directs you to certify the firm or remove its eligibility, 
as appropriate. You must take

[[Page 288]]

the action directed by the Department's decision immediately upon 
receiving written notice of it.
    (3) The Department is not required to reverse your decision if the 
Department determines that a procedural error did not result in 
fundamental unfairness to the appellant or substantially prejudice the 
opportunity of the appellant to present its case.
    (4) If it appears that the record is incomplete or unclear with 
respect to matters likely to have a significant impact on the outcome of 
the case, the Department may remand the record to you with instructions 
seeking clarification or augmentation of the record before making a 
finding. The Department may also remand a case to you for further 
proceedings consistent with Department instructions concerning the 
proper application of the provisions of this part.
    (5) The Department does not uphold your decision based on grounds 
not specified in your decision.
    (6) The Department's decision is based on the status and 
circumstances of the firm as of the date of the decision being appealed.
    (7) The Department provides written notice of its decision to you, 
the firm, and the complainant in an ineligibility complaint. A copy of 
the notice is also sent to any other recipient whose administrative 
record or decision has been involved in the proceeding (see paragraph 
(d) of this section). The Department will also notify the SBA in writing 
when DOT takes an action on an appeal that results in or confirms a loss 
of eligibility to any SBA-certified firm. The notice includes the 
reasons for the Department's decision, including specific references to 
the evidence in the record that supports each reason for the decision.
    (8) The Department's policy is to make its decision within 180 days 
of receiving the complete administrative record. If the Department does 
not make its decision within this period, the Department provides 
written notice to concerned parties, including a statement of the reason 
for the delay and a date by which the appeal decision will be made.
    (g) All decisions under this section are administratively final, and 
are not subject to petitions for reconsideration.

[64 FR 5126, Feb. 2, 1999, as amended at 65 FR 68951, Nov. 15, 2000; 68 
FR 35556, June 16, 2003; 73 FR 33329, June 12, 2008; 79 FR 59599, Oct. 
2, 2014]



Sec.  26.91  What actions do recipients take following DOT certification
appeal decisions?

    (a) If you are the recipient from whose action an appeal under Sec.  
26.89 is taken, the decision is binding. It is not binding on other 
recipients.
    (b) If you are a recipient to which a DOT determination under Sec.  
26.89 is applicable, you must take the following action:
    (1) If the Department determines that you erroneously certified a 
firm, you must remove the firm's eligibility on receipt of the 
determination, without further proceedings on your part. Effective on 
the date of your receipt of the Department's determination, the 
consequences of a removal of eligibility set forth in Sec.  26.87(i) 
take effect.
    (2) If the Department determines that you erroneously failed to find 
reasonable cause to remove the firm's eligibility, you must 
expeditiously commence a proceeding to determine whether the firm's 
eligibility should be removed, as provided in Sec.  26.87.
    (3) If the Department determines that you erroneously declined to 
certify or removed the eligibility of the firm, you must certify the 
firm, effective on the date of your receipt of the written notice of 
Department's determination.
    (4) If the Department determines that you erroneously determined 
that the presumption of social and economic disadvantage either should 
or should not be deemed rebutted, you must take appropriate corrective 
action as determined by the Department.
    (5) If the Department affirms your determination, no further action 
is necessary.
    (c) Where DOT has upheld your denial of certification to or removal 
of eligibility from a firm, or directed the removal of a firm's 
eligibility, other recipients with whom the firm is certified may 
commence a proceeding to remove the firm's eligibility under

[[Page 289]]

Sec.  26.87. Such recipients must not remove the firm's eligibility 
absent such a proceeding. Where DOT has reversed your denial of 
certification to or removal of eligibility from a firm, other recipients 
must take the DOT action into account in any certification action 
involving the firm. However, other recipients are not required to 
certify the firm based on the DOT decision.



                  Subpart F_Compliance and Enforcement



Sec.  26.101  What compliance procedures apply to recipients?

    (a) If you fail to comply with any requirement of this part, you may 
be subject to formal enforcement action under Sec.  26.103 or Sec.  
26.105 or appropriate program sanctions by the concerned operating 
administration, such as the suspension or termination of Federal funds, 
or refusal to approve projects, grants or contracts until deficiencies 
are remedied. Program sanctions may include, in the case of the FHWA 
program, actions provided for under 23 CFR 1.36; in the case of the FAA 
program, actions consistent with 49 U.S.C. 47106(d), 47111(d), and 
47122; and in the case of the FTA program, any actions permitted under 
49 U.S.C. chapter 53 or applicable FTA program requirements.
    (b) As provided in statute, you will not be subject to compliance 
actions or sanctions for failing to carry out any requirement of this 
part because you have been prevented from complying because a Federal 
court has issued a final order in which the court found that the 
requirement is unconstitutional.



Sec.  26.103  What enforcement actions apply in FHWA and FTA programs?

    The provisions of this section apply to enforcement actions under 
FHWA and FTA programs:
    (a) Noncompliance complaints. Any person who believes that a 
recipient has failed to comply with its obligations under this part may 
file a written complaint with the concerned operating administration's 
Office of Civil Rights. If you want to file a complaint, you must do so 
no later than 180 days after the date of the alleged violation or the 
date on which you learned of a continuing course of conduct in violation 
of this part. In response to your written request, the Office of Civil 
Rights may extend the time for filing in the interest of justice, 
specifying in writing the reason for so doing. The Office of Civil 
Rights may protect the confidentiality of your identity as provided in 
Sec.  26.109(b). Complaints under this part are limited to allegations 
of violation of the provisions of this part.
    (b) Compliance reviews. The concerned operating administration may 
review the recipient's compliance with this part at any time, including 
reviews of paperwork and on-site reviews, as appropriate. The Office of 
Civil Rights may direct the operating administration to initiate a 
compliance review based on complaints received.
    (c) Reasonable cause notice. If it appears, from the investigation 
of a complaint or the results of a compliance review, that you, as a 
recipient, are in noncompliance with this part, the appropriate DOT 
office promptly sends you, return receipt requested, a written notice 
advising you that there is reasonable cause to find you in 
noncompliance. The notice states the reasons for this finding and 
directs you to reply within 30 days concerning whether you wish to begin 
conciliation.
    (d) Conciliation. (1) If you request conciliation, the appropriate 
DOT office shall pursue conciliation for at least 30, but not more than 
120, days from the date of your request. The appropriate DOT office may 
extend the conciliation period for up to 30 days for good cause, 
consistent with applicable statutes.
    (2) If you and the appropriate DOT office sign a conciliation 
agreement, then the matter is regarded as closed and you are regarded as 
being in compliance. The conciliation agreement sets forth the measures 
you have taken or will take to ensure compliance. While a conciliation 
agreement is in effect, you remain eligible for FHWA or FTA financial 
assistance.
    (3) The concerned operating administration shall monitor your 
implementation of the conciliation agreement and ensure that its terms 
are complied with. If you fail to carry out the terms of a conciliation 
agreement, you are in noncompliance.

[[Page 290]]

    (4) If you do not request conciliation, or a conciliation agreement 
is not signed within the time provided in paragraph (d)(1) of this 
section, then enforcement proceedings begin.
    (e) Enforcement actions. (1) Enforcement actions are taken as 
provided in this subpart.
    (2) Applicable findings in enforcement proceedings are binding on 
all DOT offices.



Sec.  26.105  What enforcement actions apply in FAA programs?

    (a) Compliance with all requirements of this part by airport 
sponsors and other recipients of FAA financial assistance is enforced 
through the procedures of Title 49 of the United States Code, including 
49 U.S.C. 47106(d), 47111(d), and 47122, and regulations implementing 
them.
    (b) The provisions of Sec.  26.103(b) and this section apply to 
enforcement actions in FAA programs.
    (c) Any person who knows of a violation of this part by a recipient 
of FAA funds may file a complaint under 14 CFR part 16 with the Federal 
Aviation Administration Office of Chief Counsel.



Sec.  26.107  What enforcement actions apply to firms participating in
the DBE program?

    (a) If you are a firm that does not meet the eligibility criteria of 
subpart D of this part and that attempts to participate in a DOT-
assisted program as a DBE on the basis of false, fraudulent, or 
deceitful statements or representations or under circumstances 
indicating a serious lack of business integrity or honesty, the 
Department may initiate suspension or debarment proceedings against you 
under 2 CFR parts 180 and 1200.
    (b) If you are a firm that, in order to meet DBE contract goals or 
other DBE program requirements, uses or attempts to use, on the basis of 
false, fraudulent or deceitful statements or representations or under 
circumstances indicating a serious lack of business integrity or 
honesty, another firm that does not meet the eligibility criteria of 
subpart D of this part, the Department may initiate suspension or 
debarment proceedings against you under 2 CFR parts 180 and 1200.
    (c) In a suspension or debarment proceeding brought under paragraph 
(a) or (b) of this section, the concerned operating administration may 
consider the fact that a purported DBE has been certified by a 
recipient. Such certification does not preclude the Department from 
determining that the purported DBE, or another firm that has used or 
attempted to use it to meet DBE goals, should be suspended or debarred.
    (d) The Department may take enforcement action under 49 CFR Part 31, 
Program Fraud and Civil Remedies, against any participant in the DBE 
program whose conduct is subject to such action under 49 CFR part 31.
    (e) The Department may refer to the Department of Justice, for 
prosecution under 18 U.S.C. 1001 or other applicable provisions of law, 
any person who makes a false or fraudulent statement in connection with 
participation of a DBE in any DOT-assisted program or otherwise violates 
applicable Federal statutes.

[64 FR 5126, Feb. 2, 1999, as amended at 76 FR 5101, Jan. 28, 2011]



Sec.  26.109  What are the rules governing information, confidentiality,
cooperation, and intimidation or retaliation?

    (a) Availability of records. (1) In responding to requests for 
information concerning any aspect of the DBE program, the Department 
complies with provisions of the Federal Freedom of Information and 
Privacy Acts (5 U.S.C. 552 and 552a). The Department may make available 
to the public any information concerning the DBE program release of 
which is not prohibited by Federal law.
    (2) Notwithstanding any provision of Federal or state law, you must 
not release any information that may reasonably be construed as 
confidential business information to any third party without the written 
consent of the firm that submitted the information. This includes 
applications for DBE certification and supporting information. However, 
you must transmit this information to DOT in any certification appeal 
proceeding under Sec.  26.89 of this part or to any other state to which 
the individual's firm has applied

[[Page 291]]

for certification under Sec.  26.85 of this part.
    (b) Confidentiality of information on complainants. Notwithstanding 
the provisions of paragraph (a) of this section, the identity of 
complainants shall be kept confidential, at their election. If such 
confidentiality will hinder the investigation, proceeding or hearing, or 
result in a denial of appropriate administrative due process to other 
parties, the complainant must be advised for the purpose of waiving the 
privilege. Complainants are advised that, in some circumstances, failure 
to waive the privilege may result in the closure of the investigation or 
dismissal of the proceeding or hearing. FAA follows the procedures of 14 
CFR part 16 with respect to confidentiality of information in 
complaints.
    (c) Cooperation. All participants in the Department's DBE program 
(including, but not limited to, recipients, DBE firms and applicants for 
DBE certification, complainants and appellants, and contractors using 
DBE firms to meet contract goals) are required to cooperate fully and 
promptly with DOT and recipient compliance reviews, certification 
reviews, investigations, and other requests for information. Failure to 
do so shall be a ground for appropriate action against the party 
involved (e.g., with respect to recipients, a finding of noncompliance; 
with respect to DBE firms, denial of certification or removal of 
eligibility and/or suspension and debarment; with respect to a 
complainant or appellant, dismissal of the complaint or appeal; with 
respect to a contractor which uses DBE firms to meet goals, findings of 
non-responsibility for future contracts and/or suspension and 
debarment).
    (d) Intimidation and retaliation. If you are a recipient, 
contractor, or any other participant in the program, you must not 
intimidate, threaten, coerce, or discriminate against any individual or 
firm for the purpose of interfering with any right or privilege secured 
by this part or because the individual or firm has made a complaint, 
testified, assisted, or participated in any manner in an investigation, 
proceeding, or hearing under this part. If you violate this prohibition, 
you are in noncompliance with this part.

[64 FR 5126, Feb. 2, 1999, as amended at 68 FR 35556, June 16, 2003; 76 
FR 5101, Jan. 28, 2011]





   Sec. Appendix A to Part 26--Guidance Concerning Good Faith Efforts

    I. When, as a recipient, you establish a contract goal on a DOT-
assisted contract for procuring construction, equipment, services, or 
any other purpose, a bidder must, in order to be responsible and/or 
responsive, make sufficient good faith efforts to meet the goal. The 
bidder can meet this requirement in either of two ways. First, the 
bidder can meet the goal, documenting commitments for participation by 
DBE firms sufficient for this purpose. Second, even if it doesn't meet 
the goal, the bidder can document adequate good faith efforts. This 
means that the bidder must show that it took all necessary and 
reasonable steps to achieve a DBE goal or other requirement of this part 
which, by their scope, intensity, and appropriateness to the objective, 
could reasonably be expected to obtain sufficient DBE participation, 
even if they were not fully successful.
    II. In any situation in which you have established a contract goal, 
Part 26 requires you to use the good faith efforts mechanism of this 
part. As a recipient, you have the responsibility to make a fair and 
reasonable judgment whether a bidder that did not meet the goal made 
adequate good faith efforts. It is important for you to consider the 
quality, quantity, and intensity of the different kinds of efforts that 
the bidder has made, based on the regulations and the guidance in this 
Appendix.
    The efforts employed by the bidder should be those that one could 
reasonably expect a bidder to take if the bidder were actively and 
aggressively trying to obtain DBE participation sufficient to meet the 
DBE contract goal. Mere pro forma efforts are not good faith efforts to 
meet the DBE contract requirements. We emphasize, however, that your 
determination concerning the sufficiency of the firm's good faith 
efforts is a judgment call. Determinations should not be made using 
quantitative formulas.
    III. The Department also strongly cautions you against requiring 
that a bidder meet a contract goal (i.e., obtain a specified amount of 
DBE participation) in order to be awarded a contract, even though the 
bidder makes an adequate good faith efforts showing. This rule 
specifically prohibits you from ignoring bona fide good faith efforts.
    IV. The following is a list of types of actions which you should 
consider as part of the bidder's good faith efforts to obtain DBE

[[Page 292]]

participation. It is not intended to be a mandatory checklist, nor is it 
intended to be exclusive or exhaustive. Other factors or types of 
efforts may be relevant in appropriate cases.
    A. (1) Conducing market research to identify small business 
contractors and suppliers and soliciting through all reasonable and 
available means the interest of all certified DBEs that have the 
capability to perform the work of the contract. This may include 
attendance at pre-bid and business matchmaking meetings and events, 
advertising and/or written notices, posting of Notices of Sources Sought 
and/or Requests for Proposals, written notices or emails to all DBEs 
listed in the State's directory of transportation firms that specialize 
in the areas of work desired (as noted in the DBE directory) and which 
are located in the area or surrounding areas of the project.
    (2) The bidder should solicit this interest as early in the 
acquisition process as practicable to allow the DBEs to respond to the 
solicitation and submit a timely offer for the subcontract. The bidder 
should determine with certainty if the DBEs are interested by taking 
appropriate steps to follow up initial solicitations.
    B. Selecting portions of the work to be performed by DBEs in order 
to increase the likelihood that the DBE goals will be achieved. This 
includes, where appropriate, breaking out contract work items into 
economically feasible units (for example, smaller tasks or quantities) 
to facilitate DBE participation, even when the prime contractor might 
otherwise prefer to perform these work items with its own forces. This 
may include, where possible, establishing flexible timeframes for 
performance and delivery schedules in a manner that encourages and 
facilitates DBE participation.
    C. Providing interested DBEs with adequate information about the 
plans, specifications, and requirements of the contract in a timely 
manner to assist them in responding to a solicitation with their offer 
for the subcontract.
    D. (1) Negotiating in good faith with interested DBEs. It is the 
bidder's responsibility to make a portion of the work available to DBE 
subcontractors and suppliers and to select those portions of the work or 
material needs consistent with the available DBE subcontractors and 
suppliers, so as to facilitate DBE participation. Evidence of such 
negotiation includes the names, addresses, and telephone numbers of DBEs 
that were considered; a description of the information provided 
regarding the plans and specifications for the work selected for 
subcontracting; and evidence as to why additional Agreements could not 
be reached for DBEs to perform the work.
    (2) A bidder using good business judgment would consider a number of 
factors in negotiating with subcontractors, including DBE 
subcontractors, and would take a firm's price and capabilities as well 
as contract goals into consideration. However, the fact that there may 
be some additional costs involved in finding and using DBEs is not in 
itself sufficient reason for a bidder's failure to meet the contract DBE 
goal, as long as such costs are reasonable. Also, the ability or desire 
of a prime contractor to perform the work of a contract with its own 
organization does not relieve the bidder of the responsibility to make 
good faith efforts. Prime contractors are not, however, required to 
accept higher quotes from DBEs if the price difference is excessive or 
unreasonable.
    E. (1) Not rejecting DBEs as being unqualified without sound reasons 
based on a thorough investigation of their capabilities. The 
contractor's standing within its industry, membership in specific 
groups, organizations, or associations and political or social 
affiliations (for example union vs. non-union status) are not legitimate 
causes for the rejection or non-solicitation of bids in the contractor's 
efforts to meet the project goal. Another practice considered an 
insufficient good faith effort is the rejection of the DBE because its 
quotation for the work was not the lowest received. However, nothing in 
this paragraph shall be construed to require the bidder or prime 
contractor to accept unreasonable quotes in order to satisfy contract 
goals.
    (2) A prime contractor's inability to find a replacement DBE at the 
original price is not alone sufficient to support a finding that good 
faith efforts have been made to replace the original DBE. The fact that 
the contractor has the ability and/or desire to perform the contract 
work with its own forces does not relieve the contractor of the 
obligation to make good faith efforts to find a replacement DBE, and it 
is not a sound basis for rejecting a prospective replacement DBE's 
reasonable quote.
    F. Making efforts to assist interested DBEs in obtaining bonding, 
lines of credit, or insurance as required by the recipient or 
contractor.
    G. Making efforts to assist interested DBEs in obtaining necessary 
equipment, supplies, materials, or related assistance or services.
    H. Effectively using the services of available minority/women 
community organizations; minority/women contractors' groups; local, 
State, and Federal minority/women business assistance offices; and other 
organizations as allowed on a case-by-case basis to provide assistance 
in the recruitment and placement of DBEs.
    V. In determining whether a bidder has made good faith efforts, it 
is essential to scrutinize its documented efforts. At a minimum, you 
must review the performance of other bidders in meeting the contract 
goal.

[[Page 293]]

For example, when the apparent successful bidder fails to meet the 
contract goal, but others meet it, you may reasonably raise the question 
of whether, with additional efforts, the apparent successful bidder 
could have met the goal. If the apparent successful bidder fails to meet 
the goal, but meets or exceeds the average DBE participation obtained by 
other bidders, you may view this, in conjunction with other factors, as 
evidence of the apparent successful bidder having made good faith 
efforts. As provided in Sec.  26.53(b)(2)((vi), you must also require 
the contractor to submit copies of each DBE and non-DBE subcontractor 
quote submitted to the bidder when a non-DBE subcontractor was selected 
over a DBE for work on the contract to review whether DBE prices were 
substantially higher; and contact the DBEs listed on a contractor's 
solicitation to inquire as to whether they were contacted by the prime. 
Pro forma mailings to DBEs requesting bids are not alone sufficient to 
satisfy good faith efforts under the rule.
    VI. A promise to use DBEs after contract award is not considered to 
be responsive to the contract solicitation or to constitute good faith 
efforts.

[79 FR 59600, Oct. 2, 2014]



Sec. Appendix B to Part 26--Uniform Report of DBE Awards or Commitments 
                            and Payments Form

INSTRUCTIONS FOR COMPLETING THE UNIFORM REPORT OF DBE AWARDS/COMMITMENTS 
                              AND PAYMENTS

    Recipients of Department of Transportation (DOT) funds are expected 
to keep accurate data regarding the contracting opportunities available 
to firms paid for with DOT dollars. Failure to submit contracting data 
relative to the DBE program will result in noncompliance with Part 26. 
All dollar values listed on this form should represent the DOT share 
attributable to the Operating Administration (OA): Federal Highway 
Administration (FHWA), Federal Aviation Administration (FAA) or Federal 
Transit Administration (FTA) to which this report will be submitted.
    1. Indicate the DOT (OA) that provides your Federal financial 
assistance. If assistance comes from more than one OA, use separate 
reporting forms for each OA. If you are an FTA recipient, indicate your 
Vendor Number in the space provided.
    2. If you are an FAA recipient, indicate the relevant AIP Numbers 
covered by this report. If you are an FTA recipient, indicate the Grant/
Project numbers covered by this report. If more than ten attach a 
separate sheet.
    3. Specify the Federal fiscal year (i.e., October 1-September 30) in 
which the covered reporting period falls.
    4. State the date of submission of this report.
    5. Check the appropriate box that indicates the reporting period 
that the data provided in this report covers. For FHWA and FTA 
recipients, if this report is due June 1, data should cover October 1-
March 31. If this report is due December 1, data should cover April 1-
September 30. If the report is due to the FAA, data should cover the 
entire year.
    6. Provide the name and address of the recipient.
    7. State your overall DBE goal(s) established for the Federal fiscal 
year of the report being submitted to and approved by the relevant OA. 
Your overall goal is to be reported as well as the breakdown for 
specific Race Conscious and Race Neutral projections (both of which 
include gender-conscious/neutral projections). The Race Conscious 
projection should be based on measures that focus on and provide 
benefits only for DBEs. The use of contract goals is a primary example 
of a race conscious measure. The Race Neutral projection should include 
measures that, while benefiting DBEs, are not solely focused on DBE 
firms. For example, a small business outreach program, technical 
assistance, and prompt payment clauses can assist a wide variety of 
businesses in addition to helping DBE firms.

        Section A: Awards and Commitments Made During This Period

    The amounts in items 8(A)-10(I) should include all types of prime 
contracts awarded and all types of subcontracts awarded or committed, 
including: professional or consultant services, construction, purchase 
of materials or supplies, lease or purchase of equipment and any other 
types of services. All dollar amounts are to reflect only the Federal 
share of such contracts and should be rounded to the nearest dollar.
    Line 8: Prime contracts awarded this period: The items on this line 
should correspond to the contracts directly between the recipient and a 
supply or service contractor, with no intermediaries between the two.
    8(A). Provide the total dollar amount for all prime contracts 
assisted with DOT funds and awarded during this reporting period. This 
value should include the entire Federal share of the contracts without 
removing any amounts associated with resulting subcontracts.
    8(B). Provide the total number of all prime contracts assisted with 
DOT funds and awarded during this reporting period.
    8(C). From the total dollar amount awarded in item 8(A), provide the 
dollar amount awarded in prime contracts to certified DBE firms during 
this reporting period. This amount should not include the amounts sub 
contracted to other firms.

[[Page 294]]

    8(D). From the total number of prime contracts awarded in item 8(B), 
specify the number of prime contracts awarded to certified DBE firms 
during this reporting period.
    8(E&F). This field is closed for data entry. Except for the very 
rare case of DBE-set asides permitted under 49 CFR part 26, all prime 
contracts awarded to DBES are regarded as race-neutral.
    8(G). From the total dollar amount awarded in item 8(C), provide the 
dollar amount awarded to certified DBEs through the use of Race Neutral 
methods. See the definition of Race Neutral in item 7 and the 
explanation in item 8 of project types to include.
    8(H). From the total number of prime contracts awarded in 8(D), 
specify the number awarded to DBEs through Race Neutral methods.
    8(I). Of all prime contracts awarded this reporting period, 
calculate the percentage going to DBEs. Divide the dollar amount in item 
8(C) by the dollar amount in item 8(A) to derive this percentage. Round 
percentage to the nearest tenth.
    Line 9: Subcontracts awarded/committed this period: Items 9(A)-9(I) 
are derived in the same way as items 8(A)-8(I), except that these 
calculations should be based on subcontracts rather than prime 
contracts. Unlike prime contracts, which may only be awarded, 
subcontracts may be either awarded or committed.
    9(A). If filling out the form for general reporting, provide the 
total dollar amount of subcontracts assisted with DOT funds awarded or 
committed during this period. This value should be a subset of the total 
dollars awarded in prime contracts in 8(A), and therefore should never 
be greater than the amount awarded in prime contracts. If filling out 
the form for project reporting, provide the total dollar amount of 
subcontracts assisted with DOT funds awarded or committed during this 
period. This value should be a subset of the total dollars awarded or 
previously in prime contracts in 8(A). The sum of all subcontract 
amounts in consecutive periods should never exceed the sum of all prime 
contract amounts awarded in those periods.
    9(B). Provide the total number of all sub contracts assisted with 
DOT funds that were awarded or committed during this reporting period.
    9(C). From the total dollar amount of sub contracts awarded/
committed this period in item 9(A), provide the total dollar amount 
awarded in sub contracts to DBEs.
    9(D). From the total number of sub contracts awarded or committed in 
item 9(B), specify the number of sub contracts awarded or committed to 
DBEs.
    9(E). From the total dollar amount of sub contracts awarded or 
committed to DBEs this period, provide the amount in dollars to DBEs 
using Race Conscious measures.
    9(F). From the total number of sub contracts awarded orcommitted to 
DBEs this period, provide the number of sub contracts awarded or 
committed to DBEs using Race Conscious measures.
    9(G). From the total dollar amount of sub contracts awarded/
committed to DBEs this period, provide the amount in dollars to DBEs 
using Race Neutral measures.
    9(H). From the total number of sub contracts awarded/committed to 
DBEs this period, provide the number of sub contracts awarded to DBEs 
using Race Neutral measures.
    9(I). Of all subcontracts awarded this reporting period, calculate 
the percentage going to DBEs. Divide the dollar amount in item 9(C) by 
the dollar amount in item 9(A) to derive this percentage. Round 
percentage to the nearest tenth.
    Line 10: Total contracts awarded or committed this period. These 
fields should be used to show the total dollar value and number of 
contracts awarded to DBEs and to calculate the overall percentage of 
dollars awarded to DBEs.
    10(A)-10(B). These fields are unavailable for data entry.
    10(C-H). Combine the total values listed on the prime contracts line 
(Line 8) with the corresponding values on the subcontracts line (Line 
9).
    10(I). Of all contracts awarded this reporting period, calculate the 
percentage going to DBEs. Divide the total dollars awarded to DBEs in 
item 10(C) by the dollar amount in item 8(A) to derive this percentage. 
Round percentage to the nearest tenth.

Section B: Breakdown by Ethnicity & Gender of Contracts Awarded to DBEs 
                               This Period

    11-17. Further breakdown the contracting activity with DBE 
involvement. The Total Dollar Amount to DBEs in 17(C) should equal the 
Total Dollar Amount to DBEs in 10(C). Likewise the total number of 
contracts to DBEs in 17(F) should equal the Total Number of Contracts to 
DBEs in 10(D).
    Line 16: The ``Non-Minority'' category is reserved for any firms 
whose owners are not members of the presumptively disadvantaged groups 
already listed, but who are either ``women'' OR eligible for the DBE 
program on an individual basis. All DBE firms must be certified by the 
Unified Certification Program to be counted in this report.

                Section C: Payments on Ongoing Contracts

    Line 18(A-E). Submit information on contracts that are currently in 
progress. All dollar amounts are to reflect only the Federal share of 
such contracts, and should be rounded to the nearest dollar.
    18(A). Provide the total dollar amount paid to all firms performing 
work on contracts.

[[Page 295]]

    18(B). Provide the total number of contracts where work was 
performed during the reporting period.
    18(C). From the total number of contracts provided in 18(A) provide 
the total number of contracts that are currently being performed by DBE 
firms for which payments have been made.
    18(D). From the total dollar amount paid to all firms in 18(A), 
provide the total dollar value paid to DBE firms currently performing 
work during this period.
    18(E). Provide the total number of DBE firms that received payment 
during this reporting period. For example, while 3 contracts may be 
active during this period, one DBE firm may be providing supplies or 
services on all three contracts. This field should only list the number 
of DBE firms performing work.
    18(F). Of all payments made during this period, calculate the 
percentage going to DBEs. Divide the total dollar value to DBEs in item 
18(D) by the total dollars of all payments in 18(B). Round percentage to 
the nearest tenth.

 Section D: Actual Payments on Contracts Completed This Reporting Period

    This section should provide information only on contracts that are 
closed during this period. All dollar amounts are to reflect the entire 
Federal share of such contracts, and should be rounded to the nearest 
dollar.
    19(A). Provide the total number of contracts completed during this 
reporting period that used Race Conscious measures. Race Conscious 
contracts are those with contract goals or another race conscious 
measure.
    19(B). Provide the total dollar value of prime contracts completed 
this reporting period that had race conscious measures.
    19(C). From the total dollar value of prime contracts completed this 
period in 19(B), provide the total dollar amount of dollars awarded or 
committed to DBE firms in order to meet the contract goals. This applies 
only to Race Conscious contracts.
    19(D). Provide the actual total DBE participation in dollars on the 
race conscious contracts completed this reporting period.
    19(E). Of all the contracts completed this reporting period using 
Race Conscious measures, calculate the percentage of DBE participation. 
Divide the total dollar amount to DBEs in item 19(D) by the total dollar 
value provided in 19(B) to derive this percentage. Round to the nearest 
tenth.
    20(A)-20(E). Items 21(A)-21(E) are derived in the same manner as 
items 19(A)-19(E), except these figures should be based on contracts 
completed using Race Neutral measures.
    20(C). This field is closed.
    21(A)-21(D). Calculate the totals for each column by adding the race 
conscious and neutral figures provided in each row above.
    21(C). This field is closed.
    21(E). Calculate the overall percentage of dollars to DBEs on 
completed contracts. Divide the Total DBE participation dollar value in 
21(D) by the Total Dollar Value of Contracts Completed in 21(B) to 
derive this percentage. Round to the nearest tenth.
    23. Name of the Authorized Representative preparing this form.
    24. Signature of the Authorized Representative.
    25. Phone number of the Authorized Representative.
    **Submit your completed report to your Regional or Division Office.

[[Page 296]]

[GRAPHIC] [TIFF OMITTED] TR02OC14.000


[79 FR 59601, Oct. 2, 2014]



 Sec. Appendix C to Part 26--DBE Business Development Program Guidelines

    The purpose of this program element is to further the development of 
DBEs, including but not limited to assisting them to move into non-
traditional areas of work and/or compete in the marketplace outside the 
DBE program, via the provision of training and assistance from the 
recipient.

[[Page 297]]

    (A) Each firm that participates in a recipient's business 
development program (BDP) program is subject to a program term 
determined by the recipient. The term should consist of two stages; a 
developmental stage and a transitional stage.
    (B) In order for a firm to remain eligible for program 
participation, it must continue to meet all eligibility criteria 
contained in part 26.
    (C) By no later than 6 months of program entry, the participant 
should develop and submit to the recipient a comprehensive business plan 
setting forth the participant's business targets, objectives and goals. 
The participant will not be eligible for program benefits until such 
business plan is submitted and approved by the recipient. The approved 
business plan will constitute the participant's short and long term 
goals and the strategy for developmental growth to the point of economic 
viability in non-traditional areas of work and/or work outside the DBE 
program.
    (D) The business plan should contain at least the following:
    (1) An analysis of market potential, competitive environment and 
other business analyses estimating the program participant's prospects 
for profitable operation during the term of program participation and 
after graduation from the program.
    (2) An analysis of the firm's strengths and weaknesses, with 
particular attention paid to the means of correcting any financial, 
managerial, technical, or labor conditions which could impede the 
participant from receiving contracts other than those in traditional 
areas of DBE participation.
    (3) Specific targets, objectives, and goals for the business 
development of the participant during the next two years, utilizing the 
results of the analysis conducted pursuant to paragraphs (C) and (D)(1) 
of this appendix;
    (4) Estimates of contract awards from the DBE program and from other 
sources which are needed to meet the objectives and goals for the years 
covered by the business plan; and
    (5) Such other information as the recipient may require.
    (E) Each participant should annually review its currently approved 
business plan with the recipient and modify the plan as may be 
appropriate to account for any changes in the firm's structure and 
redefined needs. The currently approved plan should be considered the 
applicable plan for all program purposes until the recipient approves in 
writing a modified plan. The recipient should establish an anniversary 
date for review of the participant's business plan and contract 
forecasts.
    (F) Each participant should annually forecast in writing its need 
for contract awards for the next program year and the succeeding program 
year during the review of its business plan conducted under paragraph 
(E) of this appendix. Such forecast should be included in the 
participant's business plan. The forecast should include:
    (1) The aggregate dollar value of contracts to be sought under the 
DBE program, reflecting compliance with the business plan;
    (2) The aggregate dollar value of contracts to be sought in areas 
other than traditional areas of DBE participation;
    (3) The types of contract opportunities being sought, based on the 
firm's primary line of business; and
    (4) Such other information as may be requested by the recipient to 
aid in providing effective business development assistance to the 
participant.
    (G) Program participation is divided into two stages; (1) a 
developmental stage and (2) a transitional stage. The developmental 
stage is designed to assist participants to overcome their social and 
economic disadvantage by providing such assistance as may be necessary 
and appropriate to enable them to access relevant markets and strengthen 
their financial and managerial skills. The transitional stage of program 
participation follows the developmental stage and is designed to assist 
participants to overcome, insofar as practical, their social and 
economic disadvantage and to prepare the participant for leaving the 
program.
    (H) The length of service in the program term should not be a pre-
set time frame for either the developmental or transitional stages but 
should be figured on the number of years considered necessary in normal 
progression of achieving the firm's established goals and objectives. 
The setting of such time could be factored on such items as, but not 
limited to, the number of contracts, aggregate amount of the contract 
received, years in business, growth potential, etc.
    (I) Beginning in the first year of the transitional stage of program 
participation, each participant should annually submit for inclusion in 
its business plan a transition management plan outlining specific steps 
to promote profitable business operations in areas other than 
traditional areas of DBE participation after graduation from the 
program. The transition management plan should be submitted to the 
recipient at the same time other modifications are submitted pursuant to 
the annual review under paragraph (E) of this section. The plan should 
set forth the same information as required under paragraph (F) of steps 
the participant will take to continue its business development after the 
expiration of its program term.
    (J) When a participant is recognized as successfully completing the 
program by substantially achieving the targets, objectives and goals set 
forth in its program term, and has demonstrated the ability to compete 
in the marketplace, its further participation

[[Page 298]]

within the program may be determined by the recipient.
    (K) In determining whether a concern has substantially achieved the 
goals and objectives of its business plan, the following factors, among 
others, should be considered by the recipient:
    (1) Profitability;
    (2) Sales, including improved ratio of non-traditional contracts to 
traditional-type contracts;
    (3) Net worth, financial ratios, working capital, capitalization, 
access to credit and capital;
    (4) Ability to obtain bonding;
    (5) A positive comparison of the DBE's business and financial 
profile with profiles of non-DBE businesses in the same area or similar 
business category; and
    (6) Good management capacity and capability.
    (L) Upon determination by the recipient that the participant should 
be graduated from the developmental program, the recipient should notify 
the participant in writing of its intent to graduate the firm in a 
letter of notification. The letter of notification should set forth 
findings, based on the facts, for every material issue relating to the 
basis of the program graduation with specific reasons for each finding. 
The letter of notification should also provide the participant 45 days 
from the date of service of the letter to submit in writing information 
that would explain why the proposed basis of graduation is not 
warranted.
    (M) Participation of a DBE firm in the program may be discontinued 
by the recipient prior to expiration of the firm's program term for good 
cause due to the failure of the firm to engage in business practices 
that will promote its competitiveness within a reasonable period of time 
as evidenced by, among other indicators, a pattern of inadequate 
performance or unjustified delinquent performance. Also, the recipient 
can discontinue the participation of a firm that does not actively 
pursue and bid on contracts, and a firm that, without justification, 
regularly fails to respond to solicitations in the type of work it is 
qualified for and in the geographical areas where it has indicated 
availability under its approved business plan. The recipient should take 
such action if over a 2-year period a DBE firm exhibits such a pattern.



    Sec. Appendix D to Part 26--Mentor-Prot[eacute]g[eacute] Program 
                               Guidelines

    (A) The purpose of this program element is to further the 
development of DBEs, including but not limited to assisting them to move 
into non-traditional areas of work and/or compete in the marketplace 
outside the DBE program, via the provision of training and assistance 
from other firms. To operate a mentor-prot[eacute]g[eacute] program, a 
recipient must obtain the approval of the concerned operating 
administration.
    (B)(1) Any mentor-prot[eacute]g[eacute] relationship shall be based 
on a written development plan, approved by the recipient, which clearly 
sets forth the objectives of the parties and their respective roles, the 
duration of the arrangement and the services and resources to be 
provided by the mentor to the prot[eacute]g[eacute]. The formal mentor-
prot[eacute]g[eacute] agreement may set a fee schedule to cover the 
direct and indirect cost for such services rendered by the mentor for 
specific training and assistance to the prot[eacute]g[eacute] through 
the life of the agreement. Services provided by the mentor may be 
reimbursable under the FTA, FHWA, and FAA programs.
    (2) To be eligible for reimbursement, the mentor's services provided 
and associated costs must be directly attributable and properly 
allowable to specific individual contracts. The recipient may establish 
a line item for the mentor to quote the portion of the fee schedule 
expected to be provided during the life of the contract. The amount 
claimed shall be verified by the recipient and paid on an incremental 
basis representing the time the prot[eacute]g[eacute] is working on the 
contract. The total individual contract figures accumulated over the 
life of the agreement shall not exceed the amount stipulated in the 
original mentor/prot[eacute]g[eacute] agreement.
    (C) DBEs involved in a mentor-prot[eacute]g[eacute] agreement must 
be independent business entities which meet the requirements for 
certification as defined in subpart D of this part. A 
prot[eacute]g[eacute] firm must be certified before it begins 
participation in a mentor-prot[eacute]g[eacute] arrangement. If the 
recipient chooses to recognize mentor/prot[eacute]g[eacute] agreements, 
it should establish formal general program guidelines. These guidelines 
must be submitted to the operating administration for approval prior to 
the recipient executing an individual contractor/ subcontractor mentor-
prot[eacute]g[eacute] agreement.



  Sec. Appendix E to Part 26--Individual Determinations of Social and 
                          Economic Disadvantage

    The following guidance is adapted, with minor modifications, from 
SBA regulations concerning social and economic disadvantage 
determinations (see 13 CFR 124.103(c) and 124.104).

                           Social Disadvantage

    I. Socially disadvantaged individuals are those who have been 
subjected to racial or ethnic prejudice or cultural bias within American 
society because of their identities as members of groups and without 
regard to their individual qualities. Social disadvantage must stem from 
circumstances beyond their control. Evidence of individual social

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disadvantage must include the following elements:
    (A) At least one objective distinguishing feature that has 
contributed to social disadvantage, such as race, ethnic origin, gender, 
disability, long-term residence in an environment isolated from the 
mainstream of American society, or other similar causes not common to 
individuals who are not socially disadvantaged;
    (B) Personal experiences of substantial and chronic social 
disadvantage in American society, not in other countries; and
    (C) Negative impact on entry into or advancement in the business 
world because of the disadvantage. Recipients will consider any relevant 
evidence in assessing this element. In every case, however, recipients 
will consider education, employment and business history, where 
applicable, to see if the totality of circumstances shows disadvantage 
in entering into or advancing in the business world.
    (1) Education. Recipients will consider such factors as denial of 
equal access to institutions of higher education and vocational 
training, exclusion from social and professional association with 
students or teachers, denial of educational honors rightfully earned, 
and social patterns or pressures which discouraged the individual from 
pursuing a professional or business education.
    (2) Employment. Recipients will consider such factors as unequal 
treatment in hiring, promotions and other aspects of professional 
advancement, pay and fringe benefits, and other terms and conditions of 
employment; retaliatory or discriminatory behavior by an employer or 
labor union; and social patterns or pressures which have channeled the 
individual into non-professional or non-business fields.
    (3) Business history. The recipient will consider such factors as 
unequal access to credit or capital, acquisition of credit or capital 
under commercially unfavorable circumstances, unequal treatment in 
opportunities for government contracts or other work, unequal treatment 
by potential customers and business associates, and exclusion from 
business or professional organizations.
    II. With respect to paragraph I.(A) of this appendix, the Department 
notes that people with disabilities have disproportionately low incomes 
and high rates of unemployment. Many physical and attitudinal barriers 
remain to their full participation in education, employment, and 
business opportunities available to the general public. The Americans 
with Disabilities Act (ADA) was passed in recognition of the 
discrimination faced by people with disabilities. It is plausible that 
many individuals with disabilities--especially persons with severe 
disabilities (e.g., significant mobility, vision, or hearing 
impairments)--may be socially and economically disadvantaged.
    III. Under the laws concerning social and economic disadvantage, 
people with disabilities are not a group presumed to be disadvantaged. 
Nevertheless, recipients should look carefully at individual showings of 
disadvantage by individuals with disabilities, making a case-by-case 
judgment about whether such an individual meets the criteria of this 
appendix. As public entities subject to Title II of the ADA, recipients 
must also ensure their DBE programs are accessible to individuals with 
disabilities. For example, physical barriers or the lack of application 
and information materials in accessible formats cannot be permitted to 
thwart the access of potential applicants to the certification process 
or other services made available to DBEs and applicants.

                          Economic Disadvantage

    (A) General. Economically disadvantaged individuals are socially 
disadvantaged individuals whose ability to compete in the free 
enterprise system has been impaired due to diminished capital and credit 
opportunities as compared to others in the same or similar line of 
business who are not socially disadvantaged.
    (B) Submission of narrative and financial information. (1) Each 
individual claiming economic disadvantage must describe the conditions 
which are the basis for the claim in a narrative statement, and must 
submit personal financial information.
    (2) [Reserved]
    (C) Factors to be considered. In considering diminished capital and 
credit opportunities, recipients will examine factors relating to the 
personal financial condition of any individual claiming disadvantaged 
status, including personal income for the past two years (including 
bonuses and the value of company stock given in lieu of cash), personal 
net worth, and the fair market value of all assets, whether encumbered 
or not. Recipients will also consider the financial condition of the 
applicant compared to the financial profiles of small businesses in the 
same primary industry classification, or, if not available, in similar 
lines of business, which are not owned and controlled by socially and 
economically disadvantaged individuals in evaluating the individual's 
access to credit and capital. The financial profiles that recipients 
will compare include total assets, net sales, pre-tax profit, sales/
working capital ratio, and net worth.
    (D) Transfers within two years. (1) Except as set forth in paragraph 
(D)(2) of this appendix, recipients will attribute to an individual 
claiming disadvantaged status any assets which that individual has 
transferred to an immediate family member, or to a trust, a beneficiary 
of which is an immediate family member, for less than fair market value,

[[Page 300]]

within two years prior to a concern's application for participation in 
the DBE program, unless the individual claiming disadvantaged status can 
demonstrate that the transfer is to or on behalf of an immediate family 
member for that individual's education, medical expenses, or some other 
form of essential support.
    (2) Recipients will not attribute to an individual claiming 
disadvantaged status any assets transferred by that individual to an 
immediate family member that are consistent with the customary 
recognition of special occasions, such as birthdays, graduations, 
anniversaries, and retirements.
    (3) In determining an individual's access to capital and credit, 
recipients may consider any assets that the individual transferred 
within such two-year period described by paragraph (D)(1) of this 
appendix that are not considered in evaluating the individual's assets 
and net worth (e.g., transfers to charities).

[64 FR 5126, Feb. 2, 1999, as amended at 68 FR 35559, June 16, 2003]

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[79 FR 59603, Oct. 2, 2014]

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[79 FR 59617, Oct. 2, 2014]

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PART 27_NONDISCRIMINATION ON THE BASIS OF DISABILITY IN PROGRAMS 
OR ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE--Table of Contents



                            Subpart A_General

Sec.
27.1 Purpose.
27.3 Applicability.
27.5 Definitions.
27.7 Discrimination prohibited.
27.9 Assurance required.
27.11 Remedial action, voluntary action, and compliance planning.
27.13 Designation of responsible employee and adoption of complaint 
          procedures.
27.15 Notice.
27.17 Effect of State or local law.
27.19 Compliance with Americans with Disabilities Act requirements and 
          FTA policy.

       Subpart B_Accessibility Requirements in Specific Operating 
       Administration Programs: Airports, Railroads, and Highways

27.71 Airport facilities.
27.72 Boarding assistance for aircraft.
27.75 Federal Highway Administration--highways.
27.77 Recipients of Essential Air Service subsidies.

                          Subpart C_Enforcement

27.121 Compliance information.
27.123 Conduct of investigations.
27.125 Compliance procedure.
27.127 Hearings.
27.129 Decisions and notices.

    Authority: Section 504 of the Rehabilitation Act of 1973, as amended 
(29 U.S.C. 794); 49 U.S.C. 5332.

    Source: 44 FR 31468, May 31, 1979, unless otherwise noted.



                            Subpart A_General



Sec.  27.1  Purpose.

    The purpose of this part is to carry out the intent of section 504 
of the Rehabilitation Act of 1973 (29 U.S.C. 794) as amended, to the end 
that no otherwise qualified individual with a disability in the United 
States shall, solely by reason of his or her disability, be excluded 
from the participation in, be denied the benefits of, or be subjected to 
discrimination under any program or activity receiving Federal financial 
assistance.



Sec.  27.3  Applicability.

    (a) This part applies to each recipient of Federal financial 
assistance from the Department of Transportation and to each program or 
activity that receives such assistance.
    (b) Design, construction, or alteration of buildings or other fixed 
facilities by public entities subject to part 37 of this title shall be 
in conformance with appendices B and D of 36 CFR part 1191, as modified 
by appendix A to part 37 of this title. All other entities subject to 
section 504 shall design, construct, or alter buildings, or other fixed 
facilities, in conformance with appendices B and D of 36 CFR part 1191, 
as modified by appendix A to part 37 of this title.

[44 FR 31468, May 31, 1979, as amended at 56 FR 45621, Sept. 6, 1991; 68 
FR 51390, Aug. 26, 2003; 80 FR 46513, Aug. 5, 2015]



Sec.  27.5  Definitions.

    As used in this part:
    Act means the Rehabilitation Act of 1973, Public Law 93-112, as 
amended.
    Applicant means one who submits an application, request, or plan to 
be approved by a Departmental official or by a primary recipient as a 
condition to eligibility for Federal financial assistance, and 
application means such an application, request, or plan.
    Commercial service airport means an airport that is defined as a 
commercial service airport for purposes of the Federal Aviation 
Administration's Airport Improvement Program and that enplanes annually 
2500 or more passengers and receives scheduled passenger service of 
aircraft.
    Department means the Department of Transportation.
    Discrimination means denying persons with a disability the 
opportunity to participate in or benefit from any program or activity 
receiving Federal financial assistance.
    Facility means all or any portion of buildings, structures, 
vehicles, equipment, roads, walks, parking lots, or other real or 
personal property or interest in such property.

[[Page 321]]

    Federal financial assistance means any grant, loan, contract (other 
than a procurement contract or a contract of insurance or guaranty), or 
any other arrangement by which the Department provides or otherwise 
makes available assistance in the form of:
    (a) Funds;
    (b) Services of Federal personnel; or
    (c) Real or personal property or any interest in, or use of such 
property, including:
    (1) Transfers or leases of such property for less than fair market 
value or for reduced consideration; and
    (2) Proceeds from a subsequent transfer or lease of such property if 
the Federal share of its fair market value is not returned to the 
Federal Government.
    Person with a disability means (1) any person who (a) has a physical 
or mental impairment that substantially limits one or more major life 
activities, (b) has a record of such an impairment, or (c) is regarded 
as having such an impairment. (2) As used in this definition, the 
phrase:
    (a) Physical or mental impairment means (i) any physiological 
disorder or condition, cosmetic disfigurement, or anatomical loss 
affecting one or more of the following body systems: neurological; 
musculoskeletal; special sense organs; respiratory, including speech 
organs; cardiovascular, reproductive; digestive; genito-urinary; hemic 
and lymphatic; skin; and endocrine; 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; mental retardation; emotional illness; drug 
addiction; and alcoholism.
    (b) Major life activities means functions such as caring for one's 
self, performing manual tasks, walking, seeing, hearing, speaking, 
breathing, learning, and working.
    (c) Has a record of such an impairment means has a history of, or 
has been classified, or misclassified, as having a mental or physical 
impairment that substantially limits one or more major life activities.
    (d) Is regarded as having an impairment means:
    (1) Has a physical or mental impairment that does not substantially 
limit major life activities but that is treated by a recipient as 
constituting such a limitation;
    (2) Has a physical or mental impairment that substantially limits 
major life activity only as a result of the attitudes of others toward 
such an impairment; or
    (3) Has none of the impairments set forth in paragraph (1) of this 
definition, but is treated by a recipient as having such an impairment.
    Head of Operating Administration means the head of an operating 
administration within the Department (U.S. Coast Guard, Federal Highway 
Administration, Federal Aviation Administration, Federal Railroad 
Administration, National Highway Traffic Safety Administration, Federal 
Transit Administration, and Research and Special Programs 
Administration) providing Federal financial assistance to the recipient.
    Primary recipient means any recipient that is authorized or required 
to extend Federal financial assistance from the Department to another 
recipient.
    Program or activity means all of the operations of any entity 
described in paragraphs (1) through (4) of this definition, any part of 
which is extended Federal financial assistance:
    (1)(i) A department, agency, special purpose district, or other 
instrumentality of a State or of a local government; or
    (ii) The entity of such State or local government that distributes 
such assistance and each such department or agency (and each other State 
or local government entity) to which the assistance is extended, in the 
case of assistance to a State or local government;
    (2)(i) A college, university, or other postsecondary institution, or 
a public system of higher education; or
    (ii) A local educational agency (as defined in 20 U.S.C. 7801), 
system of vocational education, or other school system;

[[Page 322]]

    (3)(i) An entire corporation, partnership, or other private 
organization, or an entire sole proprietorship--
    (A) If assistance is extended to such corporation, partnership, 
private organization, or sole proprietorship as a whole; or
    (B) Which is principally engaged in the business of providing 
education, health care, housing, social services, or parks and 
recreation; or
    (ii) The entire plant or other comparable, geographically separate 
facility to which Federal financial assistance is extended, in the case 
of any other corporation, partnership, private organization, or sole 
proprietorship; or
    (4) Any other entity which is established by two or more of the 
entities described in paragraph (1), (2), or (3) of this definition.
    Qualified person with a disability means:
    (1) With respect to employment, a person with a disability who, with 
reasonable accommodation and within normal safety requirements, can 
perform the essential functions of the job in question, but the term 
does not include any individual who is an alcoholic or drug abuser whose 
current use of alcohol or drugs prevents such person from performing the 
duties of the job in question or whose employment, by reason of such 
current alcohol or drug abuse, would constitute a direct threat to 
property or the safety of others; and
    (2) With respect to other services, a person with a disability who 
meets the essential eligibility requirements for the receipt of such 
services.
    Recipient means any State, territory, possession, the District of 
Columbia, or Puerto Rico, or any political subdivision thereof, or 
instrumentality thereof, any public or private agency, institution, 
organization, or other entity, or any individual in any State, 
territory, possession, the District of Columbia, or Puerto Rico, to whom 
Federal financial assistance from the Department is extended directly or 
through another recipient, including any successor, assignee, or 
transferee thereof, but such term does not include any ultimate 
beneficiary.
    Secretary means the Secretary of Transportation.
    Section 504 means section 504 of the Act.
    Special service system means a transportation system specifically 
designed to serve the needs of persons who, by reason of disability, are 
physically unable to use bus systems designed for use by the general 
public. Special service is characterized by the use of vehicles smaller 
than a standard transit bus which are usable by persons with a 
disability, demand-responsive service, point of origin to point of 
destination service, and flexible routing and scheduling.

[44 FR 31468, May 31, 1979, as amended by Amdt. 1, 46 FR 37492, July 20, 
1981; Amdt. 27-3, 51 FR 19017, May 23, 1986; 56 FR 45621, Sept. 6, 1991; 
61 FR 32354, June 24, 1996; 61 FR 56424, Nov. 1, 1996; 68 FR 51390, Aug. 
26, 2003; 79 FR 21405, Apr. 16, 2014]



Sec.  27.7  Discrimination prohibited.

    (a) General. No qualified person with a disability shall, solely by 
reason of his disability, 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 
administered by the Department of Transportation.
    (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 disability:
    (i) Deny a qualified person with a disability the opportunity to 
participate in or benefit from the aid, benefit, or service;
    (ii) Afford a qualified person with a disability an opportunity to 
participate in or benefit from the aid, benefit, or service that is not 
substantially equal to that afforded persons who are not disabled;
    (iii) Provide a qualified person with a disability 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 persons who are not disabled;
    (iv) Provide different or separate aid, benefits, or services to 
persons with a disability or to any class of persons with a disability 
unless such action is

[[Page 323]]

necessary to provide qualified persons with a disability with aid, 
benefits or services that are as effective as those provided to persons 
who are not disabled;
    (v) Aid or perpetuate discrimination against a qualified person with 
a disability by providing financial or other assistance to an agency, 
organization, or person that discriminates on the basis of disability in 
providing any aid, benefit, or service to beneficiaries of the 
recipient's program or activity;
    (vi) Deny a qualified person with a disability the opportunity to 
participate in conferences, in planning or advising recipients, 
applicants or would-be applicants, or
    (vii) Otherwise limit a qualified person with a disability in the 
enjoyment of any right, privilege, advantage, or opportunity enjoyed by 
others receiving an aid, benefit, or service.
    (2) For purposes of this part, aids, benefits, and services, to be 
equally effective, are not required to produce the identical result or 
level of achievement for persons with and without a disability, but must 
afford persons with a disability equal opportunity to obtain the same 
result, to gain the same benefit, or to reach the same level of 
achievement, in the most integrated setting that is reasonably 
achievable.
    (3) Even if separate or different aid, benefits, or services are 
available to persons with a disability, a recipient may not deny a 
qualified person with a disability the opportunity to participate in the 
programs or activities that are not separate or different.
    (4) A recipient may not, directly or through contractual or other 
arrangements, utilize criteria or methods of administration:
    (i) That have the effect of subjecting qualified persons with a 
disability to discrimination on the basis of disability,
    (ii) That have the purpose or effect of defeating or substantially 
reducing the likelihood that persons with a disability can benefit by 
the objectives of the recipient's program or activity, or
    (iii) That yield or perpetuate discrimination against another 
recipient if both recipients are subject to common administrative 
control or are agencies of the same State.
    (5) In determining the site or location of a facility, an applicant 
or a recipient may not make selections:
    (i) That have the effect of excluding persons with a disability 
from, denying them the benefits of, or otherwise subjecting them to 
discrimination under any program or activity that receives Federal 
financial assistance, or
    (ii) That have the purpose or effect of defeating or substantially 
impairing the accomplishment of the objectives of the program or 
activity with respect to persons with a disability.
    (6) As used in this section, the aid benefit, or service provided 
under a program or activity receiving Federal financial assistance 
includes any aid, benefit, or service provided in or through a facility 
that has been constructed, expanded, altered, leased or rented, or 
otherwise acquired, in whole or in part, with Federal financial 
assistance.
    (c) Communications. Recipients shall take appropriate steps to 
ensure that communications with their applicants, employees, and 
beneficiaries are available to persons with impaired vision and hearing.
    (d) Aid, benefits, or services limited by Federal law. For aid, 
benefits, or services authorized by Federal statute or executive order 
that are designed especially for persons with a disability, or for a 
particular class of persons with a disability, the exclusion of persons 
without a disability or other classes of persons with a disability is 
not prohibited by this part.
    (e) Reasonable accommodations. A recipient shall make reasonable 
accommodations in policies, practices, or procedures when such 
accommodations are necessary to avoid discrimination on the basis of 
disability unless the recipient can demonstrate that making the 
accommodations would fundamentally alter the nature of the service, 
program, or activity or result in an undue financial and administrative 
burden. For the purposes of this section, the term reasonable 
accommodation shall be interpreted in a manner consistent with the term 
``reasonable modifications'' as set forth in the Americans with 
Disabilities Act title II regulations at 28 CFR 35.130(b)(7), and not as 
it is defined or interpreted for

[[Page 324]]

the purposes of employment discrimination under title I of the ADA (42 
U.S.C. 12111-12112) and its implementing regulations at 29 CFR part 
1630.

[44 FR 31468, May 31, 1979, as amended at 68 FR 51390, Aug. 26, 2003; 79 
FR 21405, Apr. 16, 2014; 80 FR 13260, Mar. 13, 2015]



Sec.  27.9  Assurance required.

    (a) General. Each application for Federal financial assistance to 
which this part applies, and each application to provide a facility, 
shall, as a condition to approval or extension of any Federal financial 
assistance pursuant to the application, contain, or be accompanied by, 
written assurance that the program or activity will be conducted or the 
facility operated in compliance with all the requirements imposed by or 
pursuant to this part. An applicant may incorporate these assurances by 
reference in subsequent applications to the Department.
    (b) Future effect of assurances. Recipients of Federal financial 
assistance, and transferees of property obtained by a recipient with the 
participation of Federal financial assistance, are bound by the 
recipient's assurance under the following circumstances:
    (1) When Federal financial assistance is provided in the form of a 
conveyance of real property or an interest in real property from the 
Department of Transportation to a recipient, the instrument of 
conveyance shall include a convenant running with the land binding the 
recipient and subsequent transferees to comply with the requirements of 
this part for so long as the property is used for the purpose for which 
the Federal financial assistance was provided or for a similar purpose.
    (2) When Federal financial assistance is used by a recipient to 
purchase or improve real property, the assurance provided by the 
recipient shall obligate the recipient to comply with the requirements 
of this part and require any subsequent transferee of the property, who 
is using the property for the purpose for which the Federal financial 
assistance was provided, to agree in writing to comply with the 
requirements of this part. The obligations of the recipient and 
transferees under this part shall continue in effect for as long as the 
property is used for the purpose for which Federal financial assistance 
was provided or for a similar purpose.
    (3) When Federal financial assistance is provided to the recipient 
in the form of, or is used by the recipient to obtain, personal 
property, the assurance provided by the recipient shall obligate the 
recipient to comply with the requirements of this part for the period it 
retains ownership or possession of the property or the property is used 
by a transferee for purposes directly related to the operations of the 
recipient.
    (4) When Federal financial assistance is used by a recipient for 
purposes other than to obtain property, the assurance provided shall 
obligate the recipient to comply with the requirements of this part for 
the period during which the Federal financial assistance is extended to 
the program or activity.

[44 FR 31468, May 31, 1979, as amended at 68 FR 51390, Aug. 26, 2003]



Sec.  27.11  Remedial action, voluntary action and compliance planning.

    (a) Remedial action. (1) If the responsible Departmental official 
finds that a qualified person with a disability has been excluded from 
participation in, denied the benefits of, or otherwise subjected to 
discrimination under, any program or activity in violation of this part, 
the recipient shall take such remedial action as the responsible 
Departmental official deems necessary to overcome the effects of the 
violation.
    (2) Where a recipient is found to have violated this part, and where 
another recipient exercises control over the recipient that has violated 
this part, the responsible Departmental official, where appropriate, may 
require either or both recipients to take remedial action.
    (3) The responsible Departmental official may, where necessary to 
overcome the effects of a violation of this part, require a recipient to 
take remedial action:
    (i) With respect to persons with a disability who are no longer 
participants in the recipient's program or activity but who were 
participants in the program or activity when such discrimination 
occurred, and

[[Page 325]]

    (ii) With respect to persons with a disability who would have been 
participants in the program or activity had the discrimination not 
occurred.
    (b) Voluntary action. A recipient may take steps, in addition to any 
action that is required by this part, to assure the full participation 
in the recipient's program or activity by qualified persons with a 
disability.
    (c) Compliance planning. (1) A recipient shall, within 90 days from 
the effective date of this part, designate and forward to the head of 
any operating administration providing financial assistance, with a copy 
to the responsible Departmental official the names, addresses, and 
telephone numbers of the persons responsible for evaluating the 
recipient's compliance with this part.
    (2) A recipient shall, within 180 days from the effective date of 
this part, after consultation at each step in paragraphs (c)(2) (i)-
(iii) of this section with interested persons, including persons with a 
disability and organizations representing persons with a disability:
    (i) Evaluate its current policies and practices for implementing 
these regulations, and notify the head of the operating administration 
of the completion of this evaluation;
    (ii) Identify shortcomings in compliance and describe the methods 
used to remedy them;
    (iii) Begin to modify, with official approval of recipient's 
management, any policies or practices that do not meet the requirements 
of this part according to a schedule or sequence that includes 
milestones or measures of achievement. These modifications shall be 
completed within one year from the effective date of this part;
    (iv) Take appropriate remedial steps to eliminate the effects of any 
discrimination that resulted from previous policies and practices; and
    (v) Establish a system for periodically reviewing and updating the 
evaluation.
    (3) A recipient shall, for at least three years following completion 
of the evaluation required under paragraph (c)(2) of this section, 
maintain on file, make available for public inspection, and furnish upon 
request to the head of the operating administration:
    (i) A list of the interested persons consulted;
    (ii) A description of areas examined and any problems indentified; 
and
    (iii) A description of any modifications made and of any remedial 
steps taken.

[44 FR 31468, May 31, 1979, as amended at 68 FR 51390, Aug. 26, 2003; 79 
FR 21405, Apr. 16, 2014]



Sec.  27.13  Designation of responsible employee and adoption of 
complaint procedures.

    (a) Designation of responsible employee. Each recipient shall 
designate at least one person to coordinate its efforts to comply with 
this part.
    (b) Adoption of complaint procedures. A recipient shall adopt 
procedures that incorporate appropriate due process standards and 
provide for the prompt and equitable resolution of complaints alleging 
any action prohibited by this part and 49 CFR parts 37, 38, and 39. The 
procedures shall meet the following requirements:
    (1) The process for filing a complaint, including the name, address, 
telephone number, and email address of the employee designated under 
paragraph (a) of this section, must be sufficiently advertised to the 
public, such as on the recipient's Web site;
    (2) The procedures must be accessible to and usable by individuals 
with disabilities;
    (3) The recipient must promptly communicate its response to the 
complaint allegations, including its reasons for the response, to the 
complainant by a means that will result in documentation of the 
response.

[80 FR 13260, Mar. 13, 2015]



Sec.  27.15  Notice.

    (a) A recipient shall take appropriate initial and continuing steps 
to notify participants, beneficiaries, applicants, and employees, 
including those with impaired vision or hearing, and unions or 
professional organizations holding collective bargaining or professional 
agreements with the recipient, that it does not discriminate on the 
basis of disability. The notification shall state, where appropriate, 
that the recipient does not discriminate in admission or access to, or 
treatment or employment

[[Page 326]]

in, its programs or activities. The notification shall also include an 
identification of the responsible employee designated pursuant to Sec.  
27.13(a). A recipient shall make the initial notification required by 
this section within 90 days of the effective date of this part. Methods 
of initial and continuing notification may include the posting of 
notices, publication in newspapers and magazines, placement of notices 
in recipients' publications and distribution of memoranda or other 
written communications.
    (b) If a recipient publishes or uses recruitment materials or 
publications containing general information that it makes available to 
participants, beneficiaries, applicants, or employees, it shall include 
in those materials or publications a statement of the policy described 
in paragraph (a) of this section. A recipient may meet the requirement 
of this paragraph either by including appropriate inserts in existing 
materials and publications or by revising and reprinting the materials 
and publications. In either case, the addition or revision must be 
specially noted.



Sec.  27.17  Effect of State or local law.

    The obligation to comply with this part is not obviated or affected 
by any State or local law.



Sec.  27.19  Compliance with Americans with Disabilities Act requirements 
and FTA policy.

    (a) Recipients subject to this part (whether public or private 
entities as defined in 49 CFR part 37) shall comply with all applicable 
requirements of the Americans with Disabilities Act (ADA) of 1990 (42 
U.S.C. 12101-12213) including the Department's ADA regulations (49 CFR 
parts 37 and 38), the regulations of the Department of Justice 
implementing titles II and III of the ADA (28 CFR parts 35 and 36), and 
the regulations of the Equal Employment Opportunity Commission (EEOC) 
implementing title I of the ADA (29 CFR part 1630). Compliance with the 
EEOC title I regulations is required as a condition of compliance with 
section 504 for DOT recipients even for organizations which, because 
they have fewer than 25 or 15 employees, would not be subject to the 
EEOC regulation in its own right. Compliance with all these regulations 
is a condition of receiving Federal financial assistance from the 
Department of Transportation. Any recipient not in compliance with this 
requirement shall be subject to enforcement action under subpart C of 
this part.
    (b) Consistent with FTA policy, any recipient of Federal financial 
assistance from the Federal Transit Administration whose solicitation 
was made before August 26, 1990, and is for one or more inaccessible 
vehicles, shall provide written notice to the Secretary (e.g., in the 
case of a solicitation made in the past under which the recipient can 
order additional new buses after the effective date of this section). 
The Secretary shall review each case individually, and determine whether 
the Department will continue to participate in the Federal grant, 
consistent with the provisions in the grant agreement between the 
Department and the recipient.

[55 FR 40763, Oct. 4, 1990, as amended at 56 FR 45621, Sept. 6, 1991; 61 
FR 32354, June 24, 1996; 79 FR 21405, Apr. 16, 2014]



       Subpart B_Accessibility Requirements in Specific Operating 
       Administration Programs: Airports, Railroads, and Highways



Sec.  27.71  Airport facilities.

    (a) This section applies to all terminal facilities and services 
owned, leased, or operated on any basis by a recipient of DOT financial 
assistance at a commercial service airport, including parking and ground 
transportation facilities.
    (b) Airport operators shall ensure that the terminal facilities and 
services subject to this section shall be readily accessible to and 
usable by individuals with disabilities, including individuals who use 
wheelchairs. Airport operators shall be deemed to comply with this 
section 504 obligation if they meet requirements applying to state and 
local government programs or activities and facilities under Department 
of Justice (DOJ) regulations implementing Title II of the Americans with 
Disabilities Act (ADA).

[[Page 327]]

    (c) The airport shall ensure that there is an accessible path 
between the gate and the area from which aircraft are boarded.
    (d) Systems of inter-terminal transportation, including, but not 
limited to, shuttle vehicles and people movers, shall comply with 
applicable requirements of the Department of Transportation's ADA rules.
    (e) The Americans with Disabilities Act Accessibility Guidelines 
(ADAAGs), including section 10.4 concerning airport facilities, shall be 
the standard for accessibility under this section.
    (f) Contracts or leases between carriers and airport operators 
concerning the use of airport facilities shall set forth the respective 
responsibilities of the parties for the provision of accessible 
facilities and services to individuals with disabilities as required by 
this part and applicable ADA rules of the Department of Transportation 
and Department of Justice for airport operators and applicable Air 
Carrier Access Act rules (49 CFR part 382) for carriers.
    (g) If an airport operator who receives Federal financial assistance 
for an existing airport facility has not already done so, the recipient 
shall submit a transition plan meeting the requirements of Sec.  
27.65(d) of this part to the FAA no later than March 3, 1997.
    (h) Service animal relief areas. Each airport with 10,000 or more 
annual enplanements shall cooperate with airlines that own, lease, or 
control terminal facilities at that airport to provide wheelchair 
accessible animal relief areas for service animals that accompany 
passengers departing, connecting, or arriving at the airport subject to 
the following requirements:
    (1) Airports must consult with one or more service animal training 
organizations regarding the design, dimensions, materials and 
maintenance of service animal relief areas;
    (2) Airports must establish at least one relief area in each airport 
terminal;
    (3) Airports must establish the relief area required by paragrah 
(h)(2) of this section in the sterile area of each airport terminal 
unless:
    (i) The Transportation Security Administration prohibits the airport 
from locating a relief area in the sterile area, or
    (ii) A service animal training organization, the airport, and the 
carriers in the terminal in which the relief area will be located agree 
that a relief area would be better placed outside the terminal's sterile 
area. In that event, the airport must retain documentation evidencing 
the recommendation that the relief area be located outside of the 
sterile area; and
    (4) To the extent airports have established service animal relief 
areas prior to the effective date of this paragraph:
    (i) Airports that have not consulted with a service animal training 
organization shall consult with one or more such organizations regarding 
the sufficiency of all existing service animal relief areas,
    (ii) Airports shall meet the requirements of this section August 4, 
2016.
    (i) High-contrast captioning (captioning that is at least as easy to 
read as white letters on a consistent black background) on television 
and audio-visual displays. This paragraph applies to airports with 
10,000 or more annual enplanements.
    (1) Airport operators must enable or ensure high-contrast captioning 
at all times on all televisions and other audio-visual displays that are 
capable of displaying captions and that are located in any gate area, 
ticketing area, first-class or other passenger lounge provided by a U.S. 
or foreign carrier, or any common area of the terminal to which any 
passengers have access and that are owned, leased, or controlled by the 
airport.
    (2) With respect to any televisions and other audio-visual displays 
located in any gate area, ticketing area, first-class or other passenger 
lounge provided by a U.S. or foreign carrier, or any common area of the 
terminal to which any passengers have access that provide passengers 
with safety briefings, information, or entertainment that do not have 
high-contrast captioning capability, an airport operator must replace or 
ensure the replacement of these devices with equipment that does have 
such capability whenever such equipment is replaced in the normal course 
of operations and/or whenever areas of the terminal in which

[[Page 328]]

such equipment is located undergo substantial renovation or expansion.
    (3) If an airport installs new televisions and other audio-visual 
displays for passenger safety briefings, information, or entertainment 
on or after October 5, 2015, such equipment must have high-contrast 
captioning capability.
    (j) Shared-use automated airport kiosks. This paragraph applies to 
U.S. airports with 10,000 or more annual enplanements.
    (1) Airport operators that jointly own, lease, or control automated 
airport kiosks with carriers at U.S. airports must ensure that all 
shared-use automated kiosks installed on or after December 12, 2016 meet 
the design specifications set forth in paragraph (k) of this section 
until at least 25 percent of kiosks provided in each location at the 
airport (i.e., each cluster of kiosks and all stand-alone kiosks at the 
airport) meet this specification.
    (2) Airport operators must ensure that at least 25 percent of 
shared-use automated airport kiosks they jointly own, lease, or control 
with carriers in each location at the airport meet the design 
specifications in paragraph (k) of this section by December 12, 2022.
    (3) When shared-use kiosks provided in a location at the airport 
perform more than one function (e.g., print boarding passes/bag tags, 
accept payment for flight amenities such as seating upgrades/meals/WiFi 
access, rebook tickets, etc.), the accessible kiosks must provide all 
the same functions as the inaccessible kiosks in that location.
    (4) Each shared-use automated kiosk that meets the design 
specifications in paragraph (k) of this section must be visually and 
tactilely identifiable to users as accessible (e.g., an international 
symbol of accessibility affixed to the front of the device) and 
maintained in proper working condition.
    (5) Airport operators are jointly and severally liable with carriers 
for ensuring that shared-use automated airport kiosks are compliant with 
the requirements of paragraphs (j) and (k) of this section.
    (k) Shared-use automated airport kiosks provided in accordance with 
paragraph (j) of this section must conform to the following technical 
accessibility standards with respect to their physical design and the 
functions they perform:
    (1) Self contained. Except for personal headsets and audio loops, 
automated kiosks must be operable without requiring the user to attach 
assistive technology.
    (2) Clear floor or ground space. A clear floor or ground space 
complying with section 305 of the U.S. Department of Justice's 2010 ADA 
Standards for Accessible Design, 28 CFR 35.104 (defining the ``2010 
Standards'' for title II as the requirements set forth in appendices B 
and D to 36 CFR part 1191 and the requirements contained in 28 CFR 
35.151) (hereinafter 2010 ADA Standards) must be provided.
    (3) Operable parts. Operable parts must comply with section 309 of 
the 2010 ADA Standards, and the following requirements:
    (i) Identification. Operable parts must be tactilely discernible 
without activation;
    (ii) Timing. Where a timed response is required, the user must be 
alerted visually and by touch or sound and must be given the opportunity 
to indicate that more time is required;
    (iii) Status indicators. Status indicators, including all locking or 
toggle controls or keys (e.g., Caps Lock and Num Lock keys), must be 
discernible visually and by touch or sound; and
    (iv) Color. Color coding must not be used as the only means of 
conveying information, indicating an action, prompting a response, or 
distinguishing a visual element.
    (4) Privacy. Automated airport kiosks must provide the opportunity 
for the same degree of privacy of input and output available to all 
individuals. However, if an option is provided to blank the screen in 
the speech output mode, the screen must blank when activated by the 
user, not automatically.
    (5) Output. Automated airport kiosks must comply with paragraphs 
(k)(5)(i) through (iv) of this section.
    (i) Speech output enabled. Automated airport kiosks must provide an 
option for speech output. Operating instructions and orientation, 
visible transaction prompts, user input verification,

[[Page 329]]

error messages, and all other visual information for full use must be 
accessible to and independently usable by individuals with vision 
impairments. Speech output must be delivered through a mechanism that is 
readily available to all users, including but not limited to, an 
industry standard connector or a telephone handset. Speech output must 
be recorded or digitized human, or synthesized. Speech output must be 
coordinated with information displayed on the screen. Speech output must 
comply with paragraphs (k)(5)(i)(A) through (D) of this section.
    (A) When asterisks or other masking characters are used to represent 
personal identification numbers or other visual output that is not 
displayed for security purposes, the masking characters must be spoken 
(``*'' spoken as ``asterisk'') rather than presented as beep tones or 
speech representing the concealed information.
    (B) Advertisements and other similar information are not required to 
be audible unless they convey information that can be used in the 
transaction being conducted.
    (C) Speech for any single function must be automatically interrupted 
when a transaction is selected or navigation controls are used. Speech 
must be capable of being repeated and paused by the user.
    (D) Where receipts, tickets, or other outputs are provided as a 
result of a transaction, speech output must include all information 
necessary to complete or verify the transaction, except that -
    (1) Automated airport kiosk location, date and time of transaction, 
customer account numbers, and the kiosk identifier are not required to 
be audible;
    (2) Information that duplicates information available on-screen and 
already presented audibly is not required to be repeated; and
    (3) Printed copies of a carrier's contract of carriage, applicable 
fare rules, itineraries and other similar supplemental information that 
may be included with a boarding pass are not required to be audible.
    (ii) Volume control. Automated kiosks must provide volume control 
complying with paragraphs (k)(5)(ii)(A) and (B) of this section.
    (A) Private listening. Where speech required by paragraph (k)(5)(i) 
is delivered through a mechanism for private listening, the automated 
kiosk must provide a means for the user to control the volume. A 
function must be provided to automatically reset the volume to the 
default level after every use.
    (B) Speaker volume. Where sound is delivered through speakers on the 
automated kiosk, incremental volume control must be provided with output 
amplification up to a level of at least 65 dB SPL. Where the ambient 
noise level of the environment is above 45 dB SPL, a volume gain of at 
least 20 dB above the ambient level must be user selectable. A function 
must be provided to automatically reset the volume to the default level 
after every use.
    (iii) Captioning. Multimedia content that contains speech or other 
audio information necessary for the comprehension of the content must be 
open or closed captioned.
    Advertisements and other similar information are not required to be 
captioned unless they convey information that can be used in the 
transaction being conducted.
    (iv) Tickets and boarding passes. Where tickets or boarding passes 
are provided, tickets and boarding passes must have an orientation that 
is tactilely discernible if orientation is important to further use of 
the ticket or boarding pass.
    (6) Input. Input devices must comply with paragraphs (k)(6)(i) 
through (iv) of this section.
    (i) Input controls. At least one input control that is tactilely 
discernible without activation must be provided for each function. Where 
provided, key surfaces not on active areas of display screens, must be 
raised above surrounding surfaces. Where touch or membrane keys are the 
only method of input, each must be tactilely discernible from 
surrounding surfaces and adjacent keys.
    (ii) Alphabetic keys. Alphabetic keys must be arranged in a QWERTY 
keyboard layout. The ``F'' and ``J'' keys must be tactilely distinct 
from the other keys.
    (iii) Numeric keys. Numeric keys must be arranged in a 12-key 
ascending or descending keypad layout or must be

[[Page 330]]

arranged in a row above the alphabetic keys on a QWERTY keyboard. The 
``5'' key must be tactilely distinct from the other keys.
    (iv) Function keys. Function keys must comply with paragraphs 
(k)(6)(iv)(A) and (B) of this section.
    (A) Contrast. Function keys must contrast visually from background 
surfaces. Characters and symbols on key surfaces must contrast visually 
from key surfaces. Visual contrast must be either light-on-dark or dark-
on-light. However, tactile symbols required by (k)(6)(iv)(B) are not 
required to comply with paragraph (k)(6)(iv)(A) of this section.
    (B) Tactile symbols. Function key surfaces must have tactile symbols 
as follows: Enter or Proceed key: raised circle; Clear or Correct key: 
raised left arrow; Cancel key: raised letter ex; Add Value key: raised 
plus sign; Decrease Value key: raised minus sign.
    (7) Display screen. The display screen must comply with paragraphs 
(k)(7)(i) and (ii) of this section.
    (i) Visibility. The display screen must be visible from a point 
located 40 inches (1015 mm) above the center of the clear floor space in 
front of the automated kiosk.
    (ii) Characters. Characters displayed on the screen must be in a 
sans serif font. Characters must be 3/16 inch (4.8 mm) high minimum 
based on the uppercase letter ``I.'' Characters must contrast with their 
background with a minimum luminosity contrast ratio of 3:1.
    (8) Braille instructions. Braille instructions for initiating the 
speech mode must be provided. Braille must comply with section 703.3 of 
the 2010 ADA Standards.
    (9) Biometrics. Biometrics must not be the only means for user 
identification or control, unless at least two biometric options that 
use different biological characteristics are provided.

[61 FR 56424, Nov. 1, 1996, as amended at 68 FR 51391, Aug. 26, 2003; 78 
FR 67917, Nov. 12, 2013; 80 FR 46513, Aug. 5, 2015]



Sec.  27.72  Boarding assistance for aircraft.

    (a) This section applies to airports with 10,000 or more annual 
enplanements.
    (b) Airports shall, in cooperation with carriers serving the 
airports, provide boarding assistance to individuals with disabilities 
using mechanical lifts, ramps, or other devices that do not require 
employees to lift or carry passengers up stairs. This section applies to 
all aircraft with a passenger capacity of 19 or more passenger seats, 
except as provided in paragraph (e) of this section. Paragraph (c) of 
this section applies to U.S. carriers and paragraph (d) of this section 
applies to foreign carriers.
    (c) Each airport operator shall negotiate in good faith with each 
U.S. carrier serving the airport concerning the acquisition and use of 
boarding assistance devices to ensure the provision of mechanical lifts, 
ramps, or other devices for boarding and deplaning where level-entry 
loading bridges are not available. The airport operator must have a 
written, signed agreement with each U.S. carrier allocating 
responsibility for meeting the boarding and deplaning assistance 
requirements of this section between or among the parties. The agreement 
shall be made available, on request, to representatives of the 
Department of Transportation.
    (1) All airport operators and U.S. carriers involved are jointly and 
severally responsible for the timely and complete implementation of the 
agreement.
    (2) The agreement shall ensure that all lifts and other 
accessibility equipment are maintained in proper working condition.
    (d) Each airport operator shall negotiate in good faith with each 
foreign carrier serving the airport concerning the acquisition and use 
of boarding assistance devices to ensure the provision of mechanical 
lifts, ramps, or other devices for boarding and deplaning where level-
entry loading bridges are not available. The airport operator shall, by 
no later than November 3, 2015, sign a written agreement with the 
foreign carrier allocating responsibility for meeting the boarding and 
deplaning assistance requirements of this section between or among the 
parties. The agreement shall be made available, on request, to 
representatives of the Department of Transportation.

[[Page 331]]

    (1) The agreement shall provide that all actions necessary to ensure 
accessible boarding and deplaning for passengers with disabilities are 
completed as soon as practicable, but no later than December 3, 2015.
    (2) All airport operators and foreign carriers involved are jointly 
and severally responsible for the timely and complete implementation of 
the agreement.
    (3) The agreement shall ensure that all lifts and other 
accessibility equipment are maintained in proper working condition.
    (e) Boarding assistance agreements required in paragraphs (c) and 
(d) of this section are not required to apply to the following 
situations:
    (1) Access to float planes;
    (2) Access to the following 19-seat capacity aircraft models: The 
Fairchild Metro, the Jetstream 31 and 32, the Beech 1900 (C and D 
models), and the Embraer EMB-120;
    (3) Access to any other aircraft model determined by the Department 
of Transportation to be unsuitable for boarding and deplaning assistance 
by lift, ramp, or other suitable device. The Department will make such a 
determination if it concludes that--
    (i) No existing boarding and deplaning assistance device on the 
market will accommodate the aircraft without significant risk of serious 
damage to the aircraft or injury to passengers or employees, or
    (ii) Internal barriers are present in the aircraft that would 
preclude passengers who use a boarding or aisle chair from reaching a 
non-exit row seat.
    (f) When level-entry boarding and deplaning assistance is not 
required to be provided under paragraph (e) of this section, or cannot 
be provided as required by paragraphs (b), (c), and (d) of this section 
(e.g., because of mechanical problems with a lift), boarding assistance 
shall be provided by any available means to which the passenger 
consents. However, hand-carrying (i.e., directly picking up the 
passenger's body in the arms of one or more carrier personnel to effect 
a level change the passenger needs to enter or leave the aircraft) must 
never be used, even if the passenger consents, unless this is the only 
way of evacuating the individual in the event of an emergency.
    (g) In the event that airport personnel are involved in providing 
boarding assistance, the airport shall ensure that they are trained to 
proficiency in the use of the boarding assistance equipment used at the 
airport and appropriate boarding assistance procedures that safeguard 
the safety and dignity of passengers.

[80 FR 46514, Aug. 5, 2015]



Sec.  27.75  Federal Highway Administration--highways.

    (a) New facilities--(1) Highway rest area facilities. All such 
facilities that will be constructed with Federal financial assistance 
shall be designed and constructed in accordance with the accessibility 
standards referenced in Sec.  27.3(b) of this part.
    (2) Curb cuts. All pedestrian crosswalks constructed with Federal 
financial assistance shall have curb cuts or ramps to accommodate 
persons in wheelchairs, pursuant to section 228 of the Federal-Aid 
Highway Act of 1973 (23 U.S.C. 402(b)(1)(F)).
    (3) Pedestrian over-passes, under-passes and ramps. Pedestrian over-
passes, under-passes and ramps, constructed with Federal financial 
assistance, shall be accessible to persons with a disability, including 
having gradients no steeper than 10 percent, unless:
    (i) Alternate safe means are provided to enable mobility-limited 
persons to cross the roadway at that location; or
    (ii) It would be infeasible for mobility-limited persons to reach 
the over-passes, under-passes or ramps because of unusual topographical 
or architectural obstacles unrelated to the federally assisted facility.
    (b) Existing facilities--Rest area facilities. Rest area facilities 
on Interstate highways shall be made accessible to persons with a 
disability, including wheelchair users, within a three-year period after 
the effective date of this part. Other rest area facilities shall be 
made accessible when Federal financial assistance is used to improve the 
rest area, or when the roadway adjacent to or in the near vicinity of 
the rest area

[[Page 332]]

is constructed, reconstructed or otherwise altered with Federal 
financial assistance.

[44 FR 31468, May 31, 1979, as amended by Amdt. 27-3, 51 FR 19017, May 
23, 1986. Redesignated at 56 FR 45621, Sept. 6, 1991, as amended at 79 
FR 21405, Apr. 16, 2014]



Sec.  27.77  Recipients of Essential Air Service subsidies.

    Any air carrier receiving Federal financial assistance from the 
Department of Transportation under the Essential Air Service Program 
shall, as a condition of receiving such assistance, comply with 
applicable requirements of this part and applicable section 504 and ACAA 
rules of the Department of Transportation.

[61 FR 56425, Nov. 1, 1996, as amended at 68 FR 51391, Aug. 26, 2003]



                          Subpart C_Enforcement

    Source: 44 FR 31468, May 31, 1979, unless otherwise noted. 
Redesignated at 56 FR 45621, Sept. 6, 1991.



Sec.  27.121  Compliance information.

    (a) Cooperation and assistance. The responsible Departmental 
official, to the fullest extent practicable, seeks the cooperation of 
recipients in securing compliance with this part and provides assistance 
and guidance to recipients to help them comply with this part.
    (b) Compliance reports. Each recipient shall keep on file for one 
year all complaints of noncompliance received. A record of all such 
complaints, which may be in summary form, shall be kept for five years. 
Each recipient shall keep such other records and submit to the 
responsible Departmental official or his/her designee timely, complete, 
and accurate compliance reports at such times, and in such form, and 
containing such information as the responsible Department official may 
prescribe. In the case in which a primary recipient extends Federal 
financial assistance to any other recipient, the other recipient shall 
also submit compliance reports to the primary recipient so as to enable 
the primary recipient to prepare its report.
    (c) Access to sources of information. Each recipient shall permit 
access by the responsible Departmental official or his/her designee 
during normal business hours to books, records, accounts, and other 
sources of information, and to facilities that are pertinent to 
compliance with this part. Where required information is in the 
exclusive possession of another agency or person who fails or refuses to 
furnish the information, the recipient shall so certify in its report 
and describe the efforts made to obtain the information. Considerations 
of privacy or confidentiality do not bar the Department from evaluating 
or seeking to enforce compliance with this part. Information of a 
confidential nature obtained in connection with compliance evaluation or 
enforcement is not disclosed by the Department, except in formal 
enforcement proceedings, where necessary, or where otherwise required by 
law.
    (d) Information to beneficiaries and participants. Each recipient 
shall make available to participants, beneficiaries, and other 
interested persons such information regarding the provisions of this 
regulation and its application to the program or activity for which the 
recipient receives Federal financial assistance, and make such 
information available to them in such manner, as the responsible 
Departmental official finds necessary to apprise them of the protections 
against discrimination provided by the Act and this part.

[44 FR 31468, May 31, 1979. Redesignated at 56 FR 45621, Sept. 6, 1991. 
68 FR 51391, Aug. 26, 2003]



Sec.  27.123  Conduct of investigations.

    (a) Periodic compliance reviews. The responsible Departmental 
official or his/her designee, from time to time, reviews the practices 
of recipients to determine whether they are complying with this part.
    (b) Complaints. Any person who believes himself/herself or any 
specific class of individuals to be harmed by failure to comply with 
this part may, personally or through a representative, file a written 
complaint with the responsible Departmental official. A Complaint must 
be filed not later than 180 days from the date of the alleged 
discrimination, unless the time for filing is extended by the 
responsible Departmental official or his/her designee.

[[Page 333]]

    (c) Investigations. The responsible Departmental official or his/her 
designee makes a prompt investigation whenever a compliance review, 
report, complaint, or any other information indicates a possible failure 
to comply with this part. The investigation includes, where appropriate, 
a review of the pertinent practices and policies of the recipient, and 
the circumstances under which the possible noncompliance with this part 
occurred.
    (d) Resolution of matters. (1) If, after an investigation pursuant 
to paragraph (c) of this section, the responsible Departmental official 
finds reasonable cause to believe that there is a failure to comply with 
this part, the responsible Departmental official will inform the 
recipient. The matter is resolved by informal means whenever possible. 
If the responsible Departmental official determines that the matter 
cannot be resolved by informal means, action is taken as provided in 
Sec.  27.125.
    (2) If an investigation does not warrant action pursuant to 
paragraph (d)(1) of this section, the responsible Departmental official 
or his/her designee so informs the recipient and the complainant, if 
any, in writing.
    (e) Intimidating and retaliatory acts prohibited. No employee or 
contractor of a recipient shall intimidate, threaten, coerce, or 
discriminate against any individual for the purpose of interfering with 
any right or privilege secured by section 504 of the Act or this part, 
or because the individual has made a complaint, testified, assisted, or 
participated in any manner in an investigation, hearing, or proceeding, 
under this part. The identity of complainants is kept confidential at 
their election during the conduct of any investigation, hearing or 
proceeding under this part. However, when such confidentiality is likely 
to hinder the investigation, the complainant will be advised for the 
purpose of waiving the privilege.



Sec.  27.125  Compliance procedure.

    (a) General. If there is reasonable cause for the responsible 
Departmental official to believe that there is a failure to comply with 
any provision of this part that cannot be corrected by informal means, 
the responsible Departmental official may recommend suspension or 
termination of, or refusal to grant or to continue Federal financial 
assistance, or take any other steps authorized by law. Such other steps 
may include, but are not limited to:
    (1) A referral to the Department of Justice with a recommendation 
that appropriate proceedings be brought to enforce any rights of the 
United States under any law of the United States (including other titles 
of the Act), or any assurance or other contractural undertaking; and
    (2) Any applicable proceeding under State or local law.
    (b) Refusal of Federal financial assistance. (1) No order 
suspending, terminating, or refusing to grant or continue Federal 
financial assistance becomes effective until:
    (i) The responsible Departmental official has advised the applicant 
or recipient of its failure to comply and has determined that compliance 
cannot be secured by voluntary means; and
    (ii) There has been an express finding by the Secretary on the 
record, after opportunity for hearing, of a failure by the applicant or 
recipient to comply with a requirement imposed by or pursuant to this 
part.
    (2) Any action to suspend, terminate, or refuse to grant or to 
continue Federal financial assistance is limited to the particular 
recipient who has failed to comply, and is limited in its effect to the 
particular program or activity, or part thereof, in which noncompliance 
has been found.
    (c) Other means authorized by law. No other action is taken until:
    (1) The responsible Departmental official has determined that 
compliance cannot be secured by voluntary means;
    (2) The recipient or other person has been notified by the 
responsible Departmental official of its failure to comply and of the 
proposed action;
    (3) The expiration of at least 10 days from the mailing of such 
notice to the recipient or other person. During this period, additional 
efforts are made to persuade the recipient or other person to comply 
with the regulations and to

[[Page 334]]

take such corrective action as may be appropriate.

[44 FR 31468, May 31, 1979. Redesignated at 56 FR 45621, Sept. 6, 1991. 
68 FR 51391, Aug. 26, 2003]



Sec.  27.127  Hearings.

    (a) Opportunity for hearing. Whenever an opportunity for a hearing 
is required by Sec.  27.125(b), reasonable notice is given by the 
responsible Departmental official by registered or certified mail, 
return receipt requested, to the affected applicant or recipient. This 
notice advises the applicant or recipient of the action proposed to be 
taken, the specific provision under which the proposed action is to be 
taken, and the matters of fact or law asserted as the basis for this 
action, and either:
    (1) Fixes a date not less than 20 days after the date of such notice 
within which the applicant or recipient may request a hearing; or
    (2) Advises the applicant or recipient that the matter in question 
has been set for hearing at a stated place and time.

The time and place shall be reasonable and subject to change for cause. 
The complainant, if any, also is advised of the time and place of the 
hearing. An applicant or recipient may waive a hearing and submit 
written information and argument for the record. The failure of an 
applicant or recipient to request a hearing constitutes a waiver of the 
right to a hearing under section 504 of the Act and Sec.  27.125(b), and 
consent to the making of a decision on the basis of such information as 
may be part of the record.
    (b) If the applicant or recipient waives its opportunity for a 
hearing, the responsible Departmental official shall notify the 
applicant or recipient that it has the opportunity to submit written 
information and argument for the record. The responsible Departmental 
official may also place written information and argument into the 
record.
    (c) Time and place of hearing. Hearings are held at the office of 
the Department in Washington, DC, at a time fixed by the responsible 
Departmental official unless he/she determines that the convenience of 
the applicant or recipient or of the Department requires that another 
place be selected. Hearings are held before an Administrative Law Judge 
designated in accordance with 5 U.S.C. 3105 and 3344 (section 11 of the 
Administrative Procedure Act).
    (d) Right to counsel. In all proceedings under this section, the 
applicant or recipient and the responsible Departmental official have 
the right to be represented by counsel.
    (e) Procedures, evidence and record. (1) The hearing, decision, and 
any administrative review thereof are conducted in conformity with 
sections 554 through 557 of title 5 of the United States Code, 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 notice subsequent to those provided for in paragraph (a) of this 
section, taking testimony, exhibits, arguments and briefs, requests for 
findings, and other related matters. The responsible Departmental 
official and the applicant or recipient are 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. Any person (other 
than a government employee considered to be on official business) who, 
having been invited or requested to appear and testify as a witness on 
the government's behalf, attends at a time and place scheduled for a 
hearing provided for by this part may be reimbursed for his/her travel 
and actual expenses in an amount not to exceed the amount payable under 
the standardized travel regulations applicable to a government employee 
traveling on official business.
    (2) Technical rules of evidence do not apply to hearings conducted 
pursuant to this part, but rules or principles designed to assure 
production of the most credible evidence available and to subject 
testimony to cross examination are applied where reasonably necessary by 
the Administrative Law Judge conducting the hearing. The Administrative 
Law Judge may exclude irrelevant, immaterial, or unduly repetitious 
evidence. All documents and other evidence offered or taken for the 
record are open to examination by the parties and opportunity is given 
to refute facts

[[Page 335]]

and arguments advanced by either side. A transcript is made of the oral 
evidence except to the extent the substance thereof is stipulated for 
the record. All decisions are based on the hearing record and written 
findings shall be made.
    (f) Consolidation or joint hearings. In cases in which the same or 
related facts are asserted to constitute noncompliance with this 
regulation 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 section 504 of the Act, the responsible Departmental official may, 
in agreement with such other departments or agencies, where applicable, 
provide for consolidated or joint hearings. Final decisions in such 
cases, insofar as this regulation is concerned, are made in accordance 
with Sec.  27.129.

[44 FR 31468, May 31, 1979. Redesignated at 56 FR 45621, Sept. 6, 1991. 
68 FR 51391, Aug. 26, 2003]



Sec.  27.129  Decisions and notices.

    (a) Decisions by Administrative Law Judge. After the hearing, the 
Administrative Law Judge certifies the entire record including his 
recommended findings and proposed decision to the Secretary for a final 
decision. A copy of the certification is mailed to the applicant or 
recipient and to the complainant, if any. The responsible Departmental 
official and the applicant or recipient may submit written arguments to 
the Secretary concerning the Administrative Law Judge's recommended 
findings and proposed decision.
    (b) Final decision by the Secretary. When the record is certified to 
the Secretary by the Administrative Law Judge, the Secretary reviews the 
record and accepts, rejects, or modifies the Administrative Law Judge's 
recommended findings and proposed decision, stating the reasons 
therefor.
    (c) Decisions if hearing is waived. Whenever a hearing pursuant to 
Sec.  27.125(b) is waived, the Secretary makes his/her final decision on 
the record, stating the reasons therefor.
    (d) Rulings required. Each decision of the Administrative Law Judge 
or the Secretary contains a ruling on each finding or conclusion 
presented and specifies any failures to comply with this part.
    (e) Content of orders. The final decision may provide for suspension 
or termination, or refusal to grant or continue Federal financial 
assistance, in whole or in part, to which this first regulation applies. 
The decision 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 
unless and until the recipient corrects its noncompliance and satisfies 
the Secretary that it will fully comply with this part.
    (f) Subsequent proceedings. (1) An applicant or recipient adversely 
affected by an order issued under paragraph (e) of this section is 
restored to full eligibility to receive Federal financial assistance if 
it satisfies the terms and conditions of that order or if it brings 
itself into compliance with this part and provides reasonable assurance 
that it will fully comply with this part.
    (2) Any applicant or recipient adversely affected by an order 
entered pursuant to paragraph (e) of this section may, at any time, 
request the responsible Departmental official to restore its 
eligibility, to receive Federal financial assistance. Any request must 
be supported by information showing that the applicant or recipient has 
met the requirements of paragraph (f)(1) of this section. If the 
responsible Departmental official determines that those requirements 
have been satisfied, he/she may restore such eligibility, subject to the 
approval of the Secretary.
    (3) If the responsible Departmental official denies any such 
request, the applicant or recipient may submit a request, in writing, 
for a hearing specifying why it believes the responsible Departmental 
official should restore it to full eligibility. It is thereupon given a 
prompt hearing, with a decision on the record. The applicant or 
recipient is restored to eligibility if it demonstrates to the 
satisfaction of the

[[Page 336]]

Secretary at the hearing that it satisfied the requirements of paragraph 
(f)(1) of this section.
    (4) The hearing procedures of Sec.  27.127(b) through (c) and 
paragraphs (a) through (d) of this section apply to hearings held under 
paragraph (f)(3) of this section.
    (5) While proceedings under this paragraph are pending, the 
sanctions imposed by the order issued under paragraph (e) of this 
section shall remain in effect.

[44 FR 31468, May 31, 1979. Redesignated at 56 FR 45621, Sept. 6, 1991. 
68 FR 51391, Aug. 26, 2003]



PART 28_ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF HANDICAP IN
PROGRAMS OR ACTIVITIES CONDUCTED BY THE DEPARTMENT OF TRANSPORTATION-
-Table of Contents



Sec.
28.101 Purpose.
28.102 Application.
28.103 Definitions.
28.104-28.109 [Reserved]
28.110 Self-evaluation.
28.111 Notice.
28.112-28.129 [Reserved]
28.130 General prohibition against discrimination.
28.131 Illegal use of drugs.
28.132-28.139 [Reserved]
28.140 Employment.
28.141-28.148 [Reserved]
28.149 Program accessibility: Discrimination prohibited.
28.150 Program accessibility: Existing facilities.
28.151 Program accessibility: New construction and alterations.
28.152-28.159 [Reserved]
28.160 Communications.
28.161-28.169 [Reserved]
28.170 Compliance procedures.
28.171-28.999 [Reserved]

    Authority: 29 U.S.C. 794

    Source: 56 FR 37296, Aug. 6, 1991, unless otherwise noted.



Sec.  28.101  Purpose.

    The purpose of this part is to carry out 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, including this 
Department, or the United States Postal Service. 49 CFR part 27 
implements section 504 in the Department's financial assistance 
programs.



Sec.  28.102  Application.

    This part applies to all programs or activities conducted by the 
Department except for programs and activities conducted outside the 
United States that do not involve individuals with handicaps in the 
United States.



Sec.  28.103  Definitions.

    For purposes of this part, the term--
    Assistant Attorney General means the Assistant Attorney General, 
Civil Rights Division, United States Department of Justice.
    Auxiliary aids means services or devices that enable persons with 
impaired sensory, manual, or speaking skills to have an equal 
opportunity to participate in, and enjoy the benefits of, programs or 
activities conducted by the Department. 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 Department's alleged 
discriminatory actions in sufficient detail to inform the Department of 
the nature and date of the alleged violation of section 504. It shall be 
signed by the complainant or by someone authorized to do so on his or 
her behalf. Complaints filed on behalf of classes or third parties shall 
describe or identify (by name, if possible) the alleged victims of 
discrimination.
    Current illegal use of drugs means illegal use of drugs that 
occurred recently enough to justify a reasonable belief that a person's 
drug use is current or

[[Page 337]]

that continuing use is a real and ongoing problem.
    Drug means a controlled substance, as defined in schedules I through 
V of section 202 of the Controlled Substances Act (21 U.S.C. 812).
    Department or DOT means the U.S. Department of Transportation, 
including the Office of the Secretary and all operating administrations.
    Departmental Element (or ``DOT element'') means any one of the 
following organizations within the Department:
    (a) Office of the Secretary (OST).
    (b) United States Coast Guard (USCG).
    (c) Federal Aviation Administration (FAA).
    (d) Federal Highway Administration (FHWA).
    (e) Federal Railroad Administration (FRA).
    (f) National Highway Traffic Safety Administration (NHTSA).
    (g) Federal Transit Administration (FTA).
    (h) Research and Special Programs Administration (RSPA).
    (i) Maritime Administration (MARAD).
    (j) St. Lawrence Seaway Development Corporation (SLSDC).
    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.
    Illegal use of drugs means the use of one or more drugs, the 
possession or distribution of which is unlawful under the Controlled 
Substances Act (21 U.S.C. 812) The term ``illegal use of drugs'' does 
not include the use of a drug taken under supervision by a licensed 
health care professional, or other uses authorized by the Controlled 
Substances Act or other provisions of Federal law.
    Individual with handicaps means any person who has a physical or 
mental impairment that substantially limits one or more major life 
activities, has a record of such an impairment, or is regarded as having 
such an impairment.
    As used in this definition, the phrase:
    (1) Physical or mental impairment--
    (i) Includes any physiological disorder or condition, cosmetic 
disfigurement, or anatomical loss affecting one or more of the following 
body systems: Neurological; muscular; skeletal; special sense organs; 
respiratory, including speech organs; cardiovascular; reproductive; 
digestive; genitourinary; hemic and lymphatic; skin; and endocrine;
    (ii) Includes any mental or psychological disorder, such as mental 
retardation, organic brain syndrome, emotional or mental illness, and 
specific learning disabilities; and
    (iii) Includes, but is not limited to, such diseases or conditions 
as orthopedic, visual, speech, and hearing impairments, cerebral palsy, 
epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, 
diabetes, mental retardation, emotional illness, drug addiction, and 
alcoholism.
    (2) Major life activities includes functions such as caring for 
one's self, performing manual tasks, walking, seeing, hearing, speaking, 
breathing, learning, and working.
    (3) Has a record of such an impairment means has a history of, or 
has been misclassified as having, a mental or physical impairment that 
substantially limits one or more 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 Department as 
constituting such a limitation;
    (ii) Has a physical or mental impairment that substantially limits 
major life activities only as a result of the attitudes of others toward 
such impairment; or
    (iii) Has none of the impairments defined in paragraph (1) of this 
definition but is treated by the Department as having such an 
impairment.
    Qualified individual with handicaps means--
    (1) With respect to education services provided by the U.S. Merchant 
Marine Academy or the U.S. Coast Guard Academy, an individual with 
handicaps who meets the essential eligibility requirements for 
participation in and receipt of such services, including the physical 
standards applicable to the U.S. Naval Reserve or the U.S. Coast Guard.

[[Page 338]]

    (2) With respect to any other Department 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 
Department can demonstrate would result in a fundamental alteration in 
its nature. The essential eligibility requirements include the ability 
to participate without endangering the safety of the individual or 
others.
    (3) 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
    (4) 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.  28.140.
    Section 504 means section 504 of the Rehabilitation Act of 1973 
(Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended by the 
Rehabilitation Act Amendments of 1974 (Pub. L. 93-516, 88 Stat. 1617), 
the Rehabilitation, Comprehensive Services, and Developmental 
Disabilities Amendments of 1978 (Pub. L. 95-602, 92 Stat. 2955); the 
Rehabilitation Act Amendments of 1986 (Pub. L. 99-506, 100 Stat. 1810); 
the Civil Rights Restoration Act of 1987 (Pub. L. 100-259, 102 Stat. 
28), and Handicapped Program Technical Amendments Act of 1988 (Pub. L. 
100-630, 102 Stat. 3312). As used in this part, section 504 applies only 
to programs or activities conducted by Executive agencies and not to 
federally assisted programs.

[56 FR 37296, Aug. 6, 1991, as amended at 61 FR 32354, June 24, 1996]



Sec. Sec.  28.104-28.109  [Reserved]



Sec.  28.110  Self-evaluation.

    (a) The Department shall, by one year of the effective date of this 
part, evaluate its current policies and practices, and effects thereof, 
that do not or may not meet the requirements of this part, and, to the 
extent modification of any such policies and practices is required, the 
Department shall proceed to make the necessary modifications.
    (b) The Department shall provide an opportunity to interested 
persons, including individuals with handicaps, agency employees with 
handicaps, and organizations representing individuals with handicaps, to 
participate in the self-evaluation process by submitting comments (both 
oral and written).
    (c) The Department shall, until at least three years following 
completion of the evaluation required under paragraph (a) of this 
section, or until such time as all modifications identified by the self-
evaluation to be necessary to comply with section 504 have been 
completed, whichever occurs later, maintain on file and make available 
for public inspection--
    (1) A description of areas examined, regulations and nonregulatory 
criteria reviewed, and any problems identified; and
    (2) A description of any modifications made.



Sec.  28.111  Notice.

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



Sec. Sec.  28.112-28.129  [Reserved]



Sec.  28.130  General prohibition against discrimination.

    (a) No qualified individual with handicaps shall, on the basis of 
handicap, be excluded from participation in, be denied the benefits of, 
or otherwise be subjected to discrimination under any program or 
activity conducted by the Department.
    (b)(1) The Department, in providing any aid, benefit, or service, 
may not, directly or through contractual, licensing, or other 
arrangement, on the basis of handicap--

[[Page 339]]

    (i) Deny a qualified individual with handicaps the opportunity to 
participate in or benefit from the aid, benefit, or service;
    (ii) Afford a qualified individual with handicaps an opportunity to 
participate in or benefit from the aid, benefit, or service that is not 
equal to that afforded others;
    (iii) Provide a qualified individual with handicaps with an aid, 
benefit, or service that is not as effective in affording equal 
opportunity to obtain the same result, to gain the same benefit, or to 
reach the same level of achievement as that provided to others;
    (iv) Provide different or separate aid, benefits, or services to 
individuals with handicaps or to any class of individuals with handicaps 
than is provided to others unless such action is necessary to provide 
qualified individuals with handicaps with aid, benefits, or services 
that are as effective as those provided to others;
    (v) Deny a qualified individual with handicaps the opportunity to 
participate as a member of planning or advisory boards; or
    (vi) Otherwise limit a qualified individual with handicaps in the 
enjoyment of any right, privilege, advantage, or opportunity enjoyed by 
others receiving the aid, benefit, or service.
    (2) The Department 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 Department may not, directly or through contractual or other 
arrangements, utilize criteria or methods of administration the purpose 
or effect of which would--
    (i) Subject qualified individuals with handicaps to discrimination 
on the basis of handicap; or
    (ii) Defeat or substantially impair accomplishment of the objectives 
of a program or activity with respect to individuals with handicaps.
    (4) The Department may not, in determining the site or location of a 
facility, make selections the purpose or effect of which would--
    (i) Exclude individuals with handicaps from, deny them the benefits 
of, or otherwise subject them to discrimination under any program or 
activity conducted by the Department; or
    (ii) Defeat or substantially impair the accomplishment of the 
objectives of a program or activity with respect to individuals with 
handicaps.
    (5) The Department, 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 Department may not administer a licensing or certification 
program in a manner that subjects qualified individuals with handicaps 
to discrimination on the basis of handicap, nor may the Department 
establish requirements for the programs or activities of licensees or 
certified entities that subject qualified individuals with handicaps to 
discrimination on the basis of handicap. However, the programs or 
activities of entities that are licensed or certified by the Department 
are not, themselves, covered by this part. The Department may limit the 
programs or activities of a licensee or certificate holder, who is a 
qualified individual with handicaps, to the extent necessary to ensure 
the safety of that person or the safety of others.
    (c) The exclusion of individuals without handicaps 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 Department shall administer programs and activities in the 
most integrated setting appropriate to the needs of qualified 
individuals with handicaps.



Sec.  28.131  Illegal use of drugs.

    (a) General. (1) Except as provided in paragraph (b) of this 
section, this part does not prohibit discrimination against an 
individual based on that individual's current illegal use of drugs.
    (2) The agency shall not discriminate on the basis of illegal use of 
drugs against an individual who is not engaging in current illegal use 
of drugs and who--

[[Page 340]]

    (i) Has successfully completed a supervised drug rehabilitation 
program or has otherwise been rehabilitated successfully;
    (ii) Is participating in a supervised rehabilitation program; or
    (iii) Is erroneously regarded as engaging in such use.
    (b) Health and rehabilitation services. The agency shall not deny 
health services or services provided under titles I, II, and III of the 
Rehabilitation Act to an individual on the basis of that individual's 
current illegal use of drugs, if the individual is otherwise entitled to 
such services.
    (c) Drug testing. (1) This part does not prohibit the agency from 
adopting or administering reasonable policies or procedures, including 
but not limited to drug testing, designed to ensure that an individual 
who formerly engaged in the illegal use of drugs is not engaging in 
current illegal use of drugs.
    (2) Nothing in paragraph (c) of this section shall be construed to 
encourage, prohibit, restrict, or authorize the conduct of testing for 
the illegal use of drugs.



Sec. Sec.  28.132-28.139  [Reserved]



Sec.  28.140  Employment.

    (a) No qualified individual with handicaps shall, on the basis of 
handicap, be subjected to discrimination in employment under any program 
or activity conducted by the Department.
    (b) 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. The 
provisions of this section do not apply to military personnel of the 
U.S. Coast Guard.



Sec. Sec.  28.141-28.148  [Reserved]



Sec.  28.149  Program accessibility: Discrimination prohibited.

    Except as otherwise provided in Sec.  28.150, no qualified 
individual with handicaps shall, because the Department's facilities are 
inaccessible to or unusable by individuals with handicaps, be denied the 
benefits of, be excluded from participation in, or otherwise be 
subjected to discrimination under any program or activity conducted by 
the Department.



Sec.  28.150  Program accessibility: Existing facilities.

    (a) General. The Department 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 Department to make each of its existing 
facilities accessible to and usable by individuals with handicaps;
    (2) [Reserved]
    (3) Require the Department to take any action that it can 
demonstrate would result in a fundamental alteration in the nature of a 
program or activity or in undue financial and administrative burdens. In 
those circumstances where personnel of a DOT element believe that the 
proposed action would fundamentally alter the program or activity or 
would result in undue financial and administrative burdens, the DOT 
element has the burden of proving that compliance with Sec.  28.150(a) 
would result in such alteration or burdens. The decision that compliance 
would result in such alteration or burdens must be made by the Secretary 
or his or her designee, after considering all resources available for 
use in the funding and operation of the 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 Department 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 Department may comply with the requirements of this 
section through such means as redesign of equipment, reassignment of 
services to accessible buildings, assignment of aides to beneficiaries, 
home visits, delivery of services at alternate accessible sites, 
alteration of existing facilities and construction of new facilities, 
use of accessible rolling stock, or any other methods that result in 
making

[[Page 341]]

its programs or activities readily accessible to and usable by 
individuals with handicaps. The Department is not required to make 
structural changes in existing facilities where other methods are 
effective in achieving compliance with this section. The Department, in 
making alterations to existing buildings, shall meet accessibility 
requirements to the extent compelled by the Architectural Barriers Act 
of 1968, as amended (42 U.S.C. 4151-4157), and any regulations 
implementing it. In choosing among available methods for meeting the 
requirements of this section, the Department 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 Department shall comply with the 
obligations established under this section within sixty days of the 
effective date of this part except that where structural changes in 
facilities are undertaken, such changes shall be made within three years 
of the effective date of this part, but in any event as expeditiously as 
possible. Provided that, where major restructuring of fixed facilities 
to accommodate technological changes is planned to occur within five 
years from the effective date of this part, changes needed to comply 
with this section are not required to be made until the planned 
restructuring takes place. However, alternative means for participation 
by individuals with handicaps in DOT programs and activities in the most 
integrated setting possible during this interim waiting period shall be 
available.
    (d) Transition plan. In the event that structural changes to 
facilities will be undertaken to achieve program accessibility, the 
Department shall develop, within six months of the effective date of 
this part, a transition plan setting forth the steps necessary to 
complete such changes. The agency shall provide an opportunity to 
interested persons, including individuals with handicaps, agency 
employees 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 Department's facilities that 
limit the accessibility of its programs or activities to individuals 
with handicaps;
    (2) Describe in detail the methods that will be used to make the 
facilities accessible;
    (3) Specify the schedule for taking the steps necessary to achieve 
compliance with this section and, if the time period of the transition 
plan is longer than one year, identify steps that will be taken during 
each year of the transition period; and
    (4) Indicate the official responsible for implementation of the 
plan.



Sec.  28.151  Program accessibility: New construction and alterations.

    Each building or part of a building that is constructed or altered 
by, on behalf of, or for the use of the Department 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 101-19.600-607, apply to buildings covered by this section, 
except for military facilities of the Coast Guard, which are covered by 
32 CFR part 56.



Sec. Sec.  28.152-28.159  [Reserved]



Sec.  28.160  Communications.

    (a) The Department shall take appropriate steps to ensure effective 
communication with applicants, participants, personnel of other Federal 
entities, and members of the public.
    (1) The Department shall furnish appropriate auxiliary aids where 
necessary to afford an individual with handicaps an equal opportunity to 
participate in, and enjoy the benefits of, a program or activity 
conducted by the Department.
    (i) In determining what type of auxiliary aid is necessary, the 
Department shall give primary consideration to the requests of the 
individual with handicaps.
    (ii) The Department need not provide individually prescribed 
devices, readers

[[Page 342]]

for personal use or study, or other devices of a personal nature to 
applicants or participants in programs.
    (2) Where the Department communicates with applicants and 
beneficiaries by telephone, telecommunications devices for deaf persons 
(TDDs) or equally effective telecommunication systems, shall be used to 
communicate with persons with impaired hearing.
    (b) The Department shall ensure that interested persons, including 
persons with impaired vision or hearing, can obtain information as to 
the existence and location of accessible services, activities, and 
facilities.
    (c) The Department shall provide signs at each primary entrance to 
each of its inaccessible facilities, directing users to a location at 
which they can obtain information as to the location of 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 Department to take any action 
that it can demonstrate would result in a fundamental alteration in the 
nature of a program or activity or in undue financial and administrative 
burdens. In those circumstances where personnel of a DOT element believe 
that the proposed action would fundamentally alter the program or 
activity or would result in an undue financial and administrative 
burden, the DOT element has the burden of proving that compliance with 
Sec.  28.160 would result in such alteration or burden. The decision 
that compliance would result in such alteration or burden must be made 
by the Secretary or his or her designee, after considering all resources 
available for use in the funding and operation of the 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 
Department shall take any other action that would not result in such an 
alteration or such a burden but would nevertheless ensure that, to the 
maximum extent possible, individuals with handicaps receive the benefits 
and services of the program or activity.



Sec. Sec.  28.161-28.169  [Reserved]



Sec.  28.170  Compliance procedures.

    (a) Except as provided in paragraph (b) of this section, paragraphs 
(c)-(k) of this section apply to all allegations of discrimination on 
the basis of handicap in programs of activities conducted by the 
Department;
    (b)(1) The Department 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).
    (2) The Department shall process complaints alleging violations of 
section 504 with respect to requirements of any Department safety 
regulation, concerning an individual's qualifications to perform a 
function or to receive a certificate or license, according to the 
procedures for a petition for an individual waiver or request for review 
of a standard for possible amendment or recession. The Departmental 
element shall inform the complainant, in writing, or the decision on the 
request. The complainant may request reconsideration by the Departmental 
element of the decision. The decision on the petition or request shall 
constitute the Department's final action in the matter.
    (c) Responsibility for implementation and operation of this section 
shall be vested in the Director, Departmental Office of Civil Rights.
    (d)(1) The Department 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 
Department may extend this time period for good cause.
    (2) If the subject matter of a complete complaint concerns a 
decision by a Departmental element, under a safety regulation, 
concerning an individual's qualifications to perform a function or to 
receive a certificate or license, and the complainant has available 
within the Departmental element a formal review or appeal mechanism

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concerning that decision, the Department shall not take action on the 
complaint until the Departmental element's review or appeal process has 
been completed.
    (e) If the Department 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 Department 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 Department 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 Department of the letter required by Sec.  28.170(g). The Department 
may extend this time for good cause.
    (i) Timely appeals shall be accepted and processed by the Assistant 
Secretary for Transportation Policy. The appeal will not be heard by the 
same person who made the initial determination on the request. The 
decision on the appeal shall constitute the Department's final action in 
the matter.
    (j) The Department shall notify the complainant of the results of 
the appeal within 60 days of the receipt of the request. If the 
Department determines that it needs additional information from the 
complainant, it shall have 60 days from the date it receives the 
additional information to make its determination on the appeal.
    (k) The time limits cited in paragraphs (g) and (j) of this section 
may be extended with the permission of the Assistant Attorney General.
    (l) The Department may delegate its authority for conducting 
complaint investigations to other Federal agencies, except that the 
authority for making the final determination may not be delegated to 
another agency.

[56 FR 37296, Aug. 6, 1991, as amended at 59 FR 10061, Mar. 3, 1994]



Sec. Sec.  28.171-28.999  [Reserved]



PART 29_TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM--Table of Contents



                      Subpart A_General Provisions

Sec.
29.1 What is the purpose and authority for this part?
29.2 What is the Department's policy for the Program?
29.3 What is the effect of this part on existing Tribal rights?
29.4 How do Departmental circulars, policies, manuals, guidance, or 
          rules apply to a Tribe's performance under the Program?
29.5 Who is responsible for carrying out the functions connected with 
          the Program?
29.6 Must the Department consult with Tribes regarding matters that 
          affect the Program?
29.7 What is the effect of this Program on existing Tribal 
          Transportation Program agreements?
29.8 What happens if more than one party purports to be the authorized 
          representative of a Tribe?
29.9 What definitions apply to this part?

              Subpart B_Eligibility and Negotiation Process

                               Eligibility

29.100 What are the criteria for eligibility to participate in the 
          Program?

                              Negotiations

29.101 How does a Tribe commence negotiations for a compact or funding 
          agreement?
29.102 What information should the Tribe provide to the Department when 
          it expresses its interest in negotiating a compact, funding 
          agreement, or amendment?
29.103 How will the Department respond to the Tribe's written request?
29.104 Must the Department and the Tribe follow a specific process when 
          negotiating compacts, funding agreements, and amendments?
29.105 Will negotiations commence or conclude within a specified time 
          period?

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29.106 What are best practices to pursue negotiations?
29.107 What recourse does the Department or the Tribe have if the 
          negotiations reach an impasse?
29.108 May the Department and the Tribe continue to negotiate after the 
          Tribe submits a final offer?
29.109 Who is responsible for drafting the compact or funding agreement?

                      Subpart C_Final Offer Process

29.200 What is covered by this subpart?
29.201 In what circumstances should a Tribe submit a final offer?
29.202 How does a Tribe submit a final offer?
29.203 What must a final offer contain?
29.204 How many days does the Department have to respond to a final 
          offer?
29.205 How does the Department acknowledge receipt of a final offer?
29.206 May the Department request and obtain an extension of time of the 
          45-day review period?
29.207 What happens if the Department takes no action within the 45-day 
          review period (or any extensions thereof)?
29.208 What happens once the Department accepts the Tribe's final offer 
          or the final offer is accepted by operation of law?

                        Rejection of Final Offers

29.209 On what basis may the Department reject a Tribe's final offer?
29.210 How does the Department reject a final offer?
29.211 Is technical assistance available to a Tribe to overcome 
          rejection of a final offer?
29.212 May a Tribe appeal the rejection of a final offer?
29.213 If a Tribe appeals a final offer, do the remaining provisions of 
          the compact, funding agreement, or amendment not in dispute go 
          into effect?

          Subpart D_Contents of Compacts and Funding Agreements

                                Compacts

29.300 What is included in a compact?
29.301 Is a compact required to participate in the Program?
29.302 What is the duration of a compact?
29.303 May more than one Tribe enter into a single compact and funding 
          agreement?
29.304 May a compact be amended?

                           Funding Agreements

29.305 When can a Tribe initiate negotiation of a funding agreement?
29.306 What is the duration of a funding agreement?
29.307 What terms must a funding agreement include?
29.308 May the funding agreement include additional terms from title I 
          of the Indian Self-Determination and Education Assistance Act?
29.309 Will a funding agreement include provisions pertaining to 
          flexible or innovative financing?
29.310 How is a funding agreement amended?
29.311 Is a subsequent funding agreement retroactive to the end of the 
          term of the preceding funding agreement?

      Subpart E_Rules and Procedures for Transfer and Use of Funds

29.400 What funds may a Tribe elect to include in a funding agreement?
29.401 What funds must the Department transfer to a Tribe in a funding 
          agreement?
29.402 Is the Tribe responsible for the funds included in a funding 
          agreement?
29.403 When must the Department transfer to a Tribe the funds identified 
          in a funding agreement?
29.404 When must the Department transfer funds that were not paid as 
          part of the initial lump sum payment (or initial periodic 
          payment)?
29.405 When must the Department transfer funds for a discretionary or 
          competitive grant?
29.406 Does the award of funds for a discretionary or competitive grant 
          entitle a Tribe to receive the same amount in subsequent 
          years?
29.407 Does the award of funds for discretionary or competitive grants 
          entitle the Tribe to receive contract support costs?
29.408 How may a Tribe use interest earned on funds included in a 
          funding agreement?
29.409 May a Tribe carry over from one fiscal year to the next any funds 
          that remain at the end of the funding agreement?
29.410 May a Tribe use remaining funds from a discretionary or 
          competitive grant included in a funding agreement?
29.411 Are funds included in a compact and funding agreement non-Federal 
          funds for purposes of meeting matching or cost participation 
          requirements under any other Federal or non-Federal program?
29.412 May the Department increase the funds included in the funding 
          agreement if necessary to carry out the Program?
29.413 How will the Department assist a Tribe with its credit requests?
29.414 What limitations apply to Department actions related to transfer 
          of funds associated with PSFAs?
29.415 Does the Prompt Payment Act apply to funds included in a funding 
          agreement?

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29.416 What standard applies to a Tribe's management of funds included 
          in a funding agreement?
29.417 Must a Tribe continue performance of the Tribal Transportation 
          Program or the Tribal Transit Program under a compact and 
          funding agreement if the Department does not transfer 
          sufficient funds?
29.418 May a funding agreement include transfers of State funds?
29.419 Does the award of formula funds entitle a Tribe to receipt of 
          contract support costs?
29.420 Is a Tribe entitled to enter into facility leases from the 
          Department and to receive facility support costs?
29.321 May a Tribe redesign, consolidate, reallocate, or redirect the 
          funds included in a funding agreement?

                      SUBPART F_PROGRAM OPERATIONS

                       Audits and Cost Principles

29.500 Must a Tribe undertake an annual audit?
29.501 Must a Tribe submit any required audits to the Federal Audit 
          Clearinghouse and the Department?
29.502 Who is responsible for compiling, copying, and paying for 
          materials for any audit or examination?
29.503 How may the Federal Government make a claim against a Tribe 
          relating to any disallowance of costs based on an audit 
          conducted under this part?
29.504 What cost principles must a Tribe apply in compacts and funding 
          agreements?

                 Standards for Tribal Management Systems

29.505 Must a Tribe carrying out a compact and funding agreement 
          develop, implement, and maintain management systems that meet 
          financial standards?
29.506 What financial standards apply to a Tribe's management systems 
          when carrying out a compact and funding agreement?
29.507 What minimum requirements must a Tribe's management system 
          include to meet the financial standards set forth in Sec.  
          29.506?
29.508 What procurement standards apply to contracts carried out using 
          funds included in a funding agreement?
29.509 What property management systems and standards must a Tribe 
          maintain?

                                 Records

29.510 Must a Tribe maintain a recordkeeping system?
29.511 Are Tribal records subject to the Freedom of Information Act and 
          Federal Privacy Act?
29.512 Must a Tribe make its records available to the Department?
29.513 How long must a Tribe keep and make available records?

                               Procurement

29.514 When procuring property or services with funds included in a 
          funding agreement, can a Tribe follow its own procurement 
          standards?
29.515 What are the minimum procurement standards that a Tribe must 
          follow when procuring property or services with funds included 
          in a funding agreement?
29.516 Do Federal laws and regulations apply to a Tribe's contractors or 
          subcontractors?
29.517 Can a Tribe use Federal supply sources in the performance of a 
          compact and funding agreement?

                                Reporting

29.518 What reporting must a Tribe provide?

                                Property

29.519 How may a Tribe use existing Department facilities, equipment, or 
          property?
29.520 How may a Tribe acquire surplus or excess Federal property for 
          use under the Program?
29.521 How must a Tribe use surplus or excess Federal property acquired 
          under the Program?
29.522 If a compact or funding agreement (or portion thereof) is 
          retroceded, reassumed, terminated, or expires, may the 
          Department reacquire title to property purchased with funds 
          under any compact and funding agreement or excess or surplus 
          Federal property that was donated to the Tribe under the 
          Program?

                          Technical Assistance

29.523 What technical assistance is available to a Tribe from the 
          Department?

                            Prevailing Wages

29.524 Do the wage and labor standards in the Davis-Bacon Act apply to 
          employees of a Tribe?

                            Tribal Preference

29.525 Does Indian preference apply to PSFAs under the Program?
29.526 When do Tribal employment law and contract preference laws 
          govern?

             Environmental and Cultural Resource Compliance

29.527 What compliance with environmental and cultural resource statutes 
          is required?

[[Page 346]]

                         Federal Tort Claims Act

29.528 Is the Federal Tort Claims Act applicable to a Tribe when 
          carrying out a compact and funding agreement under the 
          Program?
29.529 What steps should a Tribe take after becoming aware of a Federal 
          Tort Claim?
29.530 Is it necessary for a compact or funding agreement to include any 
          terms about FTCA coverage?
29.531 Does FTCA cover employees of the Tribe who are paid by the Tribe 
          from funds other than those provided through the compact and 
          funding agreement?
29.532 May persons who are not Indians assert claims under FTCA?
29.533 Does the year PSFAs are funded affect FTCA coverage?

                      Waiver of Program Regulations

29.534 What is the process for regulation waivers under this part?

                          Subpart G_Withdrawal

29.600 May a Tribe withdraw from a consortium?
29.601 When does a withdrawal from a consortium become effective?
29.602 How are funds redistributed when a Tribe fully or partially 
          withdraws from a compact and funding agreement administered by 
          a consortium serving more than one Tribe and elects to enter 
          into a compact and funding agreement with the Department?
29.603 How are funds distributed when a Tribe fully or partially 
          withdraws from a compact and funding agreement administered by 
          a consortium serving more than one Tribe, and the withdrawing 
          Tribe elects not to or is ineligible to enter into a compact 
          and funding agreement?

                         Subpart H_Retrocession

29.700 May a Tribe retrocede a PSFA and the associated funds?
29.701 How does a Tribe notify the Department of its intention to 
          retrocede?
29.702 What happens if the Department of the Interior determines that it 
          provides the transportation services the Tribe intends to 
          retrocede?
29.703 What happens if the Department of the Interior determines that it 
          does not provide the transportation services the Tribe intends 
          to retrocede?
29.704 When is the retrocession effective?
29.705 What effect will a retrocession have on a Tribe's right to 
          compact under the Program?
29.706 Will retrocession adversely affect future funding available for 
          the retroceded program?

                 Subpart I_Termination and Reassumption

29.800 When can the Department reassume a compact or funding agreement?
29.801 Can the Department reassume a portion of a compact or funding 
          agreement and the associated funds?
29.802 What process must the Department follow before termination of a 
          compact or funding agreement (or portion thereof)?
29.803 What happens if the Department determines that the Tribe has not 
          corrected the conditions that the Department identified in the 
          notice?
29.804 When may the Department reassume?
29.805 When can the Department immediately terminate a compact or 
          funding agreement (or portion thereof)?
29.806 Upon termination, what happens to the funds associated with the 
          terminated portions of the compact or funding agreement?

                Subpart J_Dispute Resolution and Appeals

29.900 What is the purpose of this subpart?
29.901 Can the Department and a Tribe resolve disputes using alternative 
          dispute resolution processes?
29.902 Does the Equal Access to Justice Act apply to the Program?
29.903 What determinations may not be appealed under this subpart?

                           Pre-Award Decisions

29.904 What are pre-award decisions that a Tribe may appeal?
29.905 To whom does a Tribe appeal a pre-award decision?
29.906 Must a Tribe exhaust its administrative remedies before 
          initiating a civil action against the Department in the U.S. 
          District Courts for a pre-award decision?
29.907 When and how must a Tribe appeal a pre-award decision?
29.908 May a Tribe request an extension of time to file an 
          administrative appeal?
29.909 When and how must the hearing official respond to the Tribe's 
          appeal?
29.910 What is the Department's burden of proof for appeals of pre-award 
          decisions?
29.911 What is the effect of a pending appeal on negotiations?

                           Post-Award Disputes

29.912 What is a post-award dispute?
29.913 What is a claim under the Contract Disputes Act?
29.914 How does a Tribe file a Contract Disputes Act claim?
29.915 Must a Tribe certify a Contract Disputes Act claim?
29.916 Who bears the burden of proof in a Contract Disputes Act claim?

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29.917 What is the Department's role in processing the Contract Disputes 
          Act claim?
29.918 What information must the Self-Governance Official's decision 
          contain?
29.919 When must the Self-Governance Official issue a written decision 
          on the claim?
29.920 Is a decision of the Self-Governance Official final?
29.921 Where may a Tribe appeal the Self-Governance Official's decision 
          on a Contract Disputes Act claim?
29.922 May a party appeal a Civilian Board of Contract Appeals decision?
29.923 What is the effect of a pending appeal?

                           Termination Appeals

29.924 May a Tribe appeal the Department's decision to terminate a 
          compact or funding agreement?
29.925 Is a Tribe entitled to a hearing on the record?
29.926 What rights do the Department and the Tribe have in an appeal of 
          a termination decision?
29.927 What notice and service must the Department and the Tribe 
          provide?
29.928 What is the Department's burden of proof for a termination 
          decision?
29.929 How will the Department communicate its decision following a 
          hearing on a termination decision?
29.930 May the Department or the Tribe appeal the decision of an 
          administrative law judge?
29.931 How can the Department or the Tribe obtain review of the 
          recommended decision of an administrative law judge?
29.932 May a Tribe appeal the decision of the Secretary?
29.933 What is the effect of an appeal on negotiations?

    Authority: 23 U.S.C. 207

    Source: 85 FR 33504, June 1, 2020, unless otherwise noted.



                      Subpart A_General Provisions



Sec.  29.1  What is the purpose and authority for this part?

    (a) The regulations in this part implement the Tribal Transportation 
Self Governance Program established in 23 U.S.C. 207 and set forth rules 
for compacts and funding agreements negotiated between the Department 
and Tribes eligible under the Program.
    (b) The Department prepared and issued these rules pursuant to 23 
U.S.C. 207(n) with the active participation and representation of 
Tribes, Tribal organizations, consortia, and individual Tribal members, 
consistent with the procedures of the Negotiated Rulemaking Act.



Sec.  29.2  What is the Department's policy for the Program?

    It is the Department's policy to:
    (a) Recognize the unique government-to-government relationship with 
Tribes, including the right of Tribes to self-government, and to support 
Tribal sovereignty and self-determination;
    (b) Encourage Tribes to participate in the Program;
    (c) Affirm and enable the United States to fulfill its obligations 
to Tribes under treaties and other laws, and to ensure the continuation 
of the trust responsibility of the United States to Tribes and Indians 
that exist under treaties, other laws, and Executive orders;
    (d) Interpret Federal laws and regulations in a manner that will 
facilitate the inclusion of eligible funds in funding agreements under 
the Program to carry out Tribal PSFAs, except as otherwise provided by 
law;
    (e) Consult with Tribes directly and meaningfully on policies that 
have Tribal implications and affect the Program;
    (f) Acknowledge that Tribes perform PSFAs as an exercise of Tribal 
self-determination and self-governance; are responsible for day-to-day 
operation of PSFAs carried out under the Program; and accept 
responsibility and accountability for the use of funds and satisfactory 
performance consistent with the terms of funding agreements; and
    (g) Liberally construe this part to effectuate 23 U.S.C. 207 for the 
benefit of Tribes participating in the Program.



Sec.  29.3  What is the effect of this part on existing Tribal rights?

    (a) A Tribe may apply for the Program at any time, but nothing in 
this part requires a Tribe to do so.
    (b) A Tribe's decision to participate in the Program does not:
    (1) Affect, modify, diminish, or otherwise impair the sovereign 
immunity from suit enjoyed by the Tribe;
    (2) Terminate, waive, modify, or reduce the trust responsibility of 
the

[[Page 348]]

United States to the Tribe or individual Indians; or
    (3) Reduce the amount of the Tribe's formula or discretionary 
funding from the Department or impair the Tribe's ability to obtain 
funding from another Federal program.



Sec.  29.4  How do Departmental circulars, policies, manuals, guidance,
or rules apply to a Tribe's performance under the Program?

    A Tribe's performance under the Program is not subject to any 
Departmental circular, policy, manual, guidance, or rule, except for 
this part, unless the Department and the Tribe otherwise negotiate and 
agree in the compact or funding agreement.



Sec.  29.5  Who is responsible for carrying out the functions connected
with the Program?

    The Department will carry out the Program, including making 
eligibility determinations; negotiating compacts and funding agreements 
with Tribes; overseeing compliance with Department requirements; and 
otherwise administering and implementing the Program consistent with 
this part. As provided in Sec.  29.402, a Tribe is responsible for day-
to-day management of the Tribe's PSFAs consistent with the compact and 
funding agreement.



Sec.  29.6  Must the Department consult with Tribes regarding matters
that affect the Program?

    The Department must consult with Tribes on matters relating to the 
Program. The Department will carry out consultations in accordance with 
Executive Order 13175 and applicable Department policies, including the 
Department's Tribal Consultation Plan.



Sec.  29.7  What is the effect of this Program on existing Tribal
Transportation Program agreements?

    This Program does not terminate existing authority for a Tribe to 
enter into agreements with the Federal Highway Administration, or 
contracts or agreements with the Department of the Interior, for the 
Tribal Transportation Program. A Tribe may maintain its current 
contracts or agreements, or include Tribal Transportation Program funds 
in a funding agreement under this Program. A Tribe may only have one 
agreement at a time for the same funds.



Sec.  29.8  What happens if more than one party purports to be the
authorized representative of a Tribe?

    If more than one party purports to be the authorized representative 
of a Tribe during the negotiation of a compact, funding agreement, or 
amendment, the Department will notify the parties, consult with the 
Department of the Interior, defer negotiation or execution of any 
documents, if necessary, until such authority is clarified, and provide 
written notice to the parties of the Department's decision to defer.



Sec.  29.9  What definitions apply to this part?

    Unless otherwise provided, the following definitions apply to this 
part:
    Appeal means a request by a Tribe for an administrative or judicial 
review of a decision by the Department.
    Self-Governance Official means a Department official responsible for 
overseeing the Program and carrying out the responsibilities set forth 
in this part.
    Compact means a legally binding and mutually enforceable written 
agreement between the Department and a Tribe entered into pursuant to 23 
U.S.C. 207(c) and this part that sets forth the general terms that will 
govern the Tribe's participation in the Program and affirms the 
government-to-government relationship.
    Consortium means an organization or association of Tribes that is 
authorized by those Tribes to participate in the Program under this part 
and is responsible for negotiating, executing, and implementing compacts 
and funding agreements on behalf of its member Tribes.
    Consultation means the process by which the Department and Tribes 
engage in timely, substantive, and meaningful government-to-government 
communication, collaboration and participation, and exchange views in 
furtherance of the Federal trust responsibility and the principles of 
self-governance, before any action is taken that will have Tribal 
implications as defined by

[[Page 349]]

Executive Order 13175, in accordance with the Department's Tribal 
Consultation Plan, Executive Order 13175, all subsequent Presidential 
Memoranda regarding Tribal consultation, and applicable Federal law.
    Contractor means a third party who has entered into a legally 
binding agreement with a Tribe to provide goods or services.
    Days means calendar days. When the last day of any time period 
specified in this part falls on a Saturday, Sunday, or Federal holiday, 
the period shall carry over to the next business day unless otherwise 
prohibited by law.
    Department means the U.S. Department of Transportation.
    Discretionary or competitive grant means funds provided by the 
Department where it selects the award amount and recipients from among 
all eligible applicants consistent with the legislative and regulatory 
requirements and selection criteria established for a program.
    Excess property means real or personal property under the control of 
a Federal agency that is not required for the agency's needs and the 
discharge of its responsibilities.
    Funding agreement means a legally binding and mutually enforceable 
written agreement between the Department and a Tribe entered into 
pursuant to 23 U.S.C. 207(d) and this part that identifies the funds the 
Tribe will use to carry out its PSFAs, and sets forth the terms and 
conditions under which the Tribe will receive the funds.
    Gross mismanagement means a significant, clear, and convincing 
violation of a compact, funding agreement, or regulatory or statutory 
requirements applicable to Federal funds included in a compact and 
funding agreement that results in a significant reduction of funds 
available for a PSFA carried out by a Tribe.
    Imminent jeopardy means an immediate threat to a trust asset, 
natural resource, or public health and safety that is caused by the act 
or omission of a Tribe and that arises out of a failure by the Tribe to 
carry out the compact or funding agreement.
    Indian means a person who is a member or citizen of a Tribe.
    Indian Tribe or Tribe means any Indian or Alaska Native tribe, band, 
nation, pueblo, village, or community (including colonies and 
rancherias) that is recognized as eligible for the special programs and 
services provided by the United States to Indians because of their 
status as Indians. In any case in which an Indian Tribe has authorized 
another Indian Tribe, an intertribal consortium, or a Tribal 
organization to plan for or carry out PSFAs on its behalf under this 
part, the authorized Indian Tribe, intertribal consortium, or Tribal 
organization shall have the rights and responsibilities of the 
authorizing Indian Tribe (except as otherwise provided in the 
authorizing resolution or in title 23 of the U.S. Code). In such event, 
the term Indian Tribe or Tribe as used in this part shall include such 
other authorized Indian Tribe, intertribal consortium, or Tribal 
organization.
    Inherent Federal functions means those Federal functions that cannot 
legally be delegated to a non-Federal entity, including a Tribe.
    Operating Administration means a component administration of the 
U.S. Department of Transportation.
    Program means the Tribal Transportation Self-Governance Program 
established by 23 U.S.C. 207.
    Project means any activity determined as being eligible under the 
U.S. Code title and program for which funds are being provided.
    Programs, services, functions, and activities or PSFAs means 
programs, services, functions, and activities, or portions thereof, that 
a Tribe carries out using funds included in a funding agreement under 
the Program.
    Real property means any interest in land together with the 
improvements, structures, and fixtures and appurtenances.
    Reassumption means the termination, in whole or part, of a funding 
agreement and assuming or reassuming the remaining funds included in the 
compact and funding agreement pursuant to 23 U.S.C. 207(f)(2)(A).
    Receipt means the actual date on which a submission is received. 
With respect to receipt by the Department, receipt is the date on which 
the Department official specified in this part

[[Page 350]]

receives the submission. Demonstration of receipt includes a postal 
return receipt, express delivery service receipt, or any other method 
that demonstrates actual receipt by the Departmental official specified 
in this part, including via electronic mail.
    Retrocession means the voluntary return of a Tribe's PSFA and 
associated remaining funds for any reason before or on the expiration of 
the term of the funding agreement.
    Secretary means the Secretary of Transportation.
    Self-Determination Contract means a contract (or grant or 
cooperative agreement) entered into pursuant to title I of the Indian 
Self-Determination and Education Assistance Act (25 U.S.C. 5321) between 
a Tribe and the appropriate Federal agency for the planning, conducting 
and administration of programs or services that are otherwise provided 
to Tribes.
    Self-governance means the Federal policy of Indian self-
determination and self-government rooted in the inherent sovereignty of 
Tribes, reflected in the government-to-government relationship between 
the United States and Tribes, and expressed in the Indian Self-
Determination and Education Assistance Act, Public Law 93-638, as 
amended, and the policy of Tribal self-determination established under 
the Program.
    State means any of the 50 States, the District of Columbia, or 
Puerto Rico.
    Surplus government property means excess real or personal property 
that is not required for the needs of and the discharge of the 
responsibilities of all Federal agencies that has been declared surplus 
by the General Services Administration.
    Technical assistance means the process by which the Department 
provides targeted support to a Tribe with a development need or problem.
    Transit means regular, continuing shared ride surface transportation 
services that are open to the general public or open to a segment of the 
general public defined by age, disability, or low income, excluding the 
transportation services set forth in 49 U.S.C. 5302(14)(B).
    Tribal Transportation Program (TTP) means a program established in 
section 1119 of Moving Ahead for Progress in the 21st Century (MAP-21), 
Public Law 112-141 (July 6, 2012), and codified in 23 U.S.C. 201 and 
202. The Fixing America's Surface Transportation Act (FAST Act), Public 
Law 114-94 (December 4, 2015) reauthorized this program.
    TTP Agreement means an agreement between a Tribe and either the 
Federal Highway Administration or the Bureau of Indian Affairs pursuant 
to 23 U.S.C. 202 that authorizes a Tribe to carry out all but the 
inherently Federal functions of the TTP.
    Tribal Organization means the recognized governing body of any 
Tribe, any legally established organization of Indians that is 
controlled, sanctioned, or chartered by such governing body or is 
democratically elected by the adult members of the Indian community to 
be served by such organization, and includes the maximum participation 
of Indians in all phases of its activities.



              Subpart B_Eligibility and Negotiation Process

                               Eligibility



Sec.  29.100  What are the criteria for eligibility to participate
in the Program?

    (a) Eligibility. A Tribe is eligible to participate in the Program 
if--
    (1) The Tribe requests participation in the Program by resolution or 
other official action by the governing body of the Tribe; and
    (2) The Department determines, based on the evidence submitted by 
the Tribe, that, over the 3 most recent fiscal years, the Tribe has 
demonstrated financial stability and financial management capability, 
and transportation program management capability in accordance with the 
criteria specified in 23 U.S.C. 207(b) and this section.
    (b) Financial stability and financial management capability. In 
making the eligibility determination under 23 U.S.C. 207(b), the 
Department must determine that a Tribe demonstrates financial stability 
and financial management capability. To assist the Department in 
determining whether a Tribe meets the financial stability and financial 
management capability criterion,

[[Page 351]]

a Tribe must satisfy one of the following evidence standards:
    (1) Conclusive evidence. A Tribe subject to the Single Audit Act 
demonstrates financial stability and financial management capability by 
providing evidence establishing that, during the preceding 3 fiscal 
years, the Tribe had no uncorrected significant and material audit 
exceptions in the required annual audit of the Tribe's self-
determination contracts or self-governance funding agreements with any 
Federal agency. This will be conclusive evidence that the Tribe has 
satisfied the financial stability and financial management capability 
criterion.
    (2) Sufficient evidence. A Tribe subject to the Single Audit Act 
that has a TTP Agreement, or a grant award provided by the Department 
may provide evidence establishing that, during the preceding 3 fiscal 
years, the Tribe had no uncorrected significant and material audit 
exceptions in its required single audit of the Tribe's Federal award 
programs. This will be sufficient evidence that the Tribe has satisfied 
the financial stability and financial management capability criterion.
    (3) Evidence without a mandate to comply with the Single Audit Act. 
If a Tribe is not subject to the Single Audit Act, a Tribe may provide 
evidence of the following for the Department's determination of whether 
the Tribe satisfies the financial stability and financial management 
capability criterion:
    (i) An independent audit, consistent with 2 CFR 200.514, containing 
no uncorrected significant and material audit exceptions that covers the 
preceding 3 fiscal years of the Tribe's self-determination contracts or 
self-governance funding agreements with any Federal agency, TTP 
Agreements, or a grant award from the Department; and
    (ii) Evidence demonstrating that the Tribe has financial management 
systems and standards that meet or exceed the standards set forth in 
Sec. Sec.  29.505 through 29.511 and 29.515 of this part. The Department 
will confirm in writing within 90 days of receipt of any such submission 
by the Tribe whether the Tribe's management systems meet the required 
standards.
    (c) Transportation program management capability. In making the 
eligibility determination under 23 U.S.C. 207(b), the Department also 
must determine that a Tribe demonstrates transportation program 
management capability, including the capability to manage and complete 
projects eligible under title 23 and chapter 53 of title 49 of the U.S. 
Code, based on the totality of the evidence that a Tribe submits to the 
Department.
    (1) Evidence of transportation management capability. To assist the 
Department in determining whether a Tribe meets the transportation 
program management capability criterion, a Tribe may submit evidence 
including:
    (i) Documentation showing that the Tribe has previously or is 
currently directing or carrying out transportation services, projects, 
or programs under a self-determination contract, self-governance 
compact, a TTP Agreement, or a grant award with the Department.
    (ii) Documentation showing the extent to which the Tribe previously 
received Federal funding and carried out management responsibilities 
relating to the planning, design, delivery, construction, maintenance, 
or operation of transportation-related projects, and whether they were 
completed;
    (iii) Documentation that the Tribe has established and maintains, as 
appropriate, a staffed and operational transportation or transit 
program, department, commission, board, or official of any Tribal 
government charged by its laws with the responsibility for 
transportation-related responsibilities, including administration, 
planning, maintenance, and construction activities. This documentation 
should identify the Tribal personnel, job descriptions, and expertise 
necessary to administer or implement PSFAs that the Tribe proposes to 
assume under the Program. The documentation may also include 
resolutions, other authorizations, or proposed budgets demonstrating 
that the Tribe has taken steps to organize a Tribal office or department 
to address the transportation-related needs of the Tribe and how that 
entity has or will demonstrate transportation program management 
capacity; and
    (iv) Documentation showing the completion of one or more 
transportation projects or operation of a program that

[[Page 352]]

is related to or similar to the PSFA the Tribe requests to include in a 
funding agreement negotiated between the Department and the Tribe. The 
Department will consider the number, complexity, and type of projects or 
programs that the Tribe has carried out and describes as part of this 
determination. This documentation should address the substantive 
involvement of the Tribe in operating a transportation program, which 
may be demonstrated by:
    (A) Involvement in the development of a completed and approved 
highway safety plan;
    (B) Involvement in the development of completed and approved plans, 
specifications, and estimates design package for one or more 
transportation projects to be carried out with available funding;
    (C) Involvement in the delivery of a completed and approved 
transportation construction project using Federal or non-Federal funds;
    (D) Oversight or operation of a public transit project or public 
transit system;
    (E) Oversight or operation of a transportation maintenance system; 
or
    (F) Other information that evidences the transportation program 
management capabilities of the Tribe.
    (2) Other indicia of program management capability. In determining 
transportation program management capability, the Department will 
consider any other evidence that a Tribe may submit, including the 
operation by the Tribe of non-transportation programs of similar 
complexity, size, administrative need, staffing requirement, or budget.
    (d) Program eligibility determination. The Department will make its 
determination of a Tribe's eligibility according to the following time 
frames:
    (1) Within 30 days of receipt of a Tribe's submission seeking an 
eligibility determination under this section to participate in the 
Program, the Department will notify the Tribe in writing to confirm that 
it has received the submission and notify the Tribe whether any evidence 
necessary to make the determination is missing.
    (3) Within 120 days of receipt of an initial submission, the 
Department will issue its determination of a Tribe's eligibility to 
participate in the Program. If the Tribe provides additional evidence to 
complete the application, the Department will have up to an additional 
45 days after such submittal to issue its determination of the Tribe's 
eligibility to participate in the Program. The determination will 
constitute final agency action, which the Tribe may appeal in accordance 
with Sec. Sec.  29.904 through 29.911.
    (e) Technical assistance. A Tribe with one or more uncorrected 
significant and material audit exceptions may request technical 
assistance from the Department through the Self-Governance Official. To 
the extent feasible, the Department will provide technical assistance, 
such as feedback on management systems and standards or review of 
internal controls, with the goal of assisting the Tribe to establish 
eligibility for the Program. Where audit exceptions involve funding 
administered by another Federal agency, the Tribe will resolve those 
exceptions with that agency.

                              Negotiations



Sec.  29.101  How does a Tribe commence negotiations for a compact,
funding agreement, or amendment?

    After the Department notifies a Tribe in writing that it is eligible 
to participate in the Program pursuant to Sec.  29.100, the Tribe must 
submit a written request to the Self-Governance Official to begin 
negotiating a compact and funding agreement. A Tribe participating in 
the Program may submit a written request to the Self-Governance Official 
at any time to begin negotiating an amendment. A Tribe may send the 
request to [email protected] or use any other method that provides receipt.



Sec.  29.102  What information should a Tribe provide to the Department
when it expresses its interest in negotiating a compact, funding agreement,
or amendment?

    After the Department notifies a Tribe in writing that it is eligible 
to participate in the Program pursuant to Sec.  29.100, the Tribe may 
express its interest in negotiating a compact, funding agreement, or 
amendment by written

[[Page 353]]

request. Such request need only request that the Department enter into 
negotiations for a compact, funding agreement, or amendment. To the 
degree the Tribe has the following information available to it, the 
request may include, as appropriate:
    (a) Whether the Tribe wants to negotiate a compact, funding 
agreement, or amendment;
    (b) The funding programs that the Tribe wants to include in the 
funding agreement or amendment;
    (c) The terms the Tribe wants to include in the compact, funding 
agreement, or amendment;
    (d) Any information or technical assistance the Tribe needs from the 
Department to assist in pursuing the negotiation process; and
    (e) The Tribal official with authority to negotiate on behalf of the 
Tribe, the designated Tribal contact, relevant contact information, and, 
if applicable, the name and contact information of an attorney 
authorized to represent the interests of the Tribe in the negotiation.



Sec.  29.103  How will the Department respond to a Tribe's written
request?

    Within 15 days of receipt of a Tribe's written request, the 
Department will notify the Tribe in writing of the identity of the 
designated representative(s) of the Department who will conduct the 
negotiation and, to the extent feasible, will provide to the Tribe the 
information requested by the Tribe consistent with Sec.  29.102(d).



Sec.  29.104  Must the Department and a Tribe follow a specific process
when negotiating compacts, funding agreements, and amendments?

    The Department and a Tribe do not have to follow a specific process 
when negotiating compacts, funding agreements, and amendments. The 
Department and the Tribe should cooperate to develop a plan to address 
each issue subject to negotiation and provide the representatives an 
opportunity to address the Tribal proposals, legal or program issues of 
concern, the time needed to complete the negotiations, and the 
development of a term sheet.



Sec.  29.105  Will negotiations commence or conclude within a specified
time period?

    Unless the Department and the Tribe agree otherwise, negotiations 
will commence within 60 days of the Department's receipt of the Tribe's 
written request to negotiate a compact, funding agreement, or amendment. 
The Department and the Tribe should make every effort to conclude 
negotiations within 90 days from the date on which negotiations 
commence, unless they agree to extend the time period for negotiations. 
Negotiations may proceed by electronic mail, teleconferences, or in-
person meetings.



Sec.  29.106  What are best practices to pursue negotiations?

    (a) The Department and the Tribe should collaborate and provide a 
clear explanation of their positions and interests. Each party should 
provide timely and specific responses to proposals presented during 
negotiations in order to conclude negotiations as soon as possible 
within the period provided in Sec.  29.105.
    (b) In negotiating the applicable construction, design, monitoring, 
or health and safety requirements that apply to the PSFAs the Tribe 
carries out using funds included in a funding agreement, along with the 
other terms set forth in Sec.  29.307, the Department and the Tribe 
should cooperate and the Department will prioritize the reduction of 
administrative requirements on the Tribe when negotiating the terms of 
the compact, funding agreement, or amendment to effectuate Tribal self-
governance.
    (c) The Department and the Tribe should conduct the negotiations in 
order to reach agreement on as many items as possible, and to refine 
unresolved issues in order to avoid disputed terms. The negotiations 
should conclude with mutually agreed upon terms and conditions. If any 
unresolved issues remain, the Tribe may submit a final offer to the 
Department under subpart C of this part.

[[Page 354]]



Sec.  29.107  What recourse does the Department or the Tribe have if
the negotiations reach an impasse?

    The Department and the Tribe should resolve disagreements informally 
and by mutual agreement whenever possible. If the Department and the 
Tribe are unable to reach agreement by the agreed upon date for 
completing negotiations, the Tribe may request to participate in an 
alternative dispute resolution process pursuant to Sec.  29.901, or it 
may submit a final offer to the Self-Governance Official in accordance 
with subpart C of this part.



Sec.  29.108  May the Department and the Tribe continue to negotiate
after the Tribe submits a final offer?

    The Department and the Tribe may continue negotiations after the 
Tribe submits a final offer by mutual agreement, and may execute the 
remaining terms of the compact, funding agreement, or amendment not 
subject to the final offer, consistent with Sec.  29.213.



Sec.  29.109  Who is responsible for drafting the compact or funding
agreement?

    It is the mutual obligation of the Department and the Tribe to draft 
the compact, funding agreement, or amendment. Either the Department or 
the Tribe may prepare the initial draft for the other party's review.



                      Subpart C_Final Offer Process



Sec.  29.200  What is covered by this subpart?

    This subpart explains the final offer process for resolving, within 
a specific time frame, disputes that may develop in negotiation of a 
compact, funding agreement, or amendment.



Sec.  29.201  In what circumstances should a Tribe submit a final offer?

    If the Department and a Tribe are unable to agree, in whole or in 
part, on the terms of a compact, funding agreement, or amendment, the 
Tribe may submit a final offer to the Department.



Sec.  29.202  How does a Tribe submit a final offer?

    (a) A Tribe must submit a written final offer to the Self-Governance 
Official to [email protected] or send the final offer using any other method 
that provides receipt to: Self-Governance Official, U.S. Department of 
Transportation, Office of the Secretary, Office of the Assistant 
Secretary for Governmental Affairs (I-10), 1200 New Jersey Avenue SE, 
Washington, DC 20590.
    (b) The final offer should be a separate document from the compact, 
funding agreement, or amendment and clearly identified as a ``Final 
Offer--Response due within 45 days of receipt.''



Sec.  29.203  What must a final offer contain?

    A final offer must contain a description of the disagreement between 
the Department and the Tribe, the Tribe's final proposal to resolve the 
disagreement, including any draft proposed terms to be included in a 
compact, funding agreement, or amendment, and the name and contact 
information for the person authorized to act on behalf of the Tribe. If 
the final offer is insufficient for the Department to make a decision, 
the Department will notify the Tribe and request additional information. 
A request for more information has no effect on deadlines for response.



Sec.  29.204  How many days does the Department have to respond to a
final offer?

    The Department has 45 days to respond to the final offer. The 45-day 
review period begins on the date the Self-Governance Official receives 
the final offer.



Sec.  29.205  How does the Department acknowledge receipt of a final offer?

    Within 10 days of the Self-Governance Official receiving the final 
offer, the Department will send the Tribe an acknowledgement of the 
final offer, together with documentation that indicates the date on 
which the Self-Governance Official received the final offer. The 
Department's failure to send the acknowledgement does not constitute 
approval of the final offer.

[[Page 355]]



Sec.  29.206  May the Department request and obtain an extension of 
time of the 45-day review period?

    The Department may request an extension of time before the 
expiration of the 45-day review period. The Tribe may either grant or 
deny the Department's request for an extension. Any grant of extension 
of time must be in writing and signed by a person authorized by the 
Tribe to grant the extension before the expiration of the 45-day review 
period.



Sec.  29.207  What happens if the Department takes no action within the 
45-day review period (or any extensions thereof)?

    The final offer is accepted by operation of law if the Department 
takes no action within the 45-day review period (or any extensions 
thereof).



Sec.  29.208  What happens once the Department accepts the Tribe's final
offer or the final offer is accepted by operation of law?

    Once the Department accepts the Tribe's final offer or the final 
offer is accepted by operation of law, the Department must add the terms 
of the Tribe's accepted final offer to the compact, funding agreement, 
or amendment, and transfer funds consistent with Sec. Sec.  29.403 
through 29.405.

                        Rejection of Final Offers



Sec.  29.209  On what basis may the Department reject a Tribe's final
offer?

    The Department may reject a Tribe's final offer for any of the 
following reasons:
    (a) The amount of funds proposed in the final offer exceeds the 
applicable funding level to which the Tribe is entitled;
    (b) The subject of the final offer is an inherent Federal function 
that cannot legally be delegated to the Tribe;
    (c) Carrying out the PSFA would result in significant danger or risk 
to public health or safety; or
    (d) The Tribe is not eligible to participate in self-governance 
under section 23 U.S.C. 207(b).



Sec.  29.210  How does the Department reject a final offer?

    The Department must reject a final offer by providing written notice 
to the Tribe based on the criteria in Sec.  29.209 no more than 45 days 
after receipt of a final offer by the Self-Governance Official, or 
within a longer time period as agreed to by the Department and the Tribe 
consistent with this subpart. The notice must explain the basis for the 
rejection of the final offer.



Sec.  29.211  Is technical assistance available to a Tribe to overcome
rejection of a final offer?

    The Department must provide technical assistance to overcome the 
objections stated in the Department's rejection of a final offer.



Sec.  29.212  May a Tribe appeal the rejection of a final offer?

    A Tribe may appeal the rejection of a final offer in accordance with 
Sec. Sec.  29.904 through 29.911.



Sec.  29.213  If a Tribe appeals a final offer, do the remaining provisions
of the compact, funding agreement, or amendment not in dispute go into effect?

    If a Tribe appeals the rejection of a final offer, the Department 
and the Tribe may execute and make effective any non-disputed, severable 
provisions of the compact, funding agreement, or amendment that are not 
already executed and are not subject to appeal.



          Subpart D_Contents of Compacts and Funding Agreements

                                Compacts



Sec.  29.300  What is included in a compact?

    A compact only includes the general terms that govern a Tribe's 
participation in the Program and such other terms as the Department and 
the Tribe mutually agree that will continue to apply from year to year, 
and affirms the government-to-government relationship between the 
Department and the Tribe. Such terms include the authority, purpose, and 
obligations of the Department and the Tribe. The written compact 
memorializes matters on

[[Page 356]]

which the Department and the Tribe agree. The compact will not include 
language not agreed to by the Department and the Tribe.



Sec.  29.301  Is a compact required to participate in the Program?

    A Tribe must have a compact in place to participate in the Program. 
A compact must be in effect between the Department and the Tribe before 
the Tribe may enter into a funding agreement with the Department. The 
Tribe may negotiate a compact at the same time it is negotiating a 
funding agreement, so long as the compact is executed prior to or 
concurrent with the funding agreement.



Sec.  29.302  What is the duration of a compact?

    A compact remains in effect until it is terminated by mutual written 
agreement, retrocession, or reassumption under this part.



Sec.  29.303  May more than one Tribe enter into a single compact and
funding agreement?

    A consortium of two or more Tribes may participate in the Program by 
entering into a single compact and funding agreement on the same basis 
as an individual Tribe. A consortium may comprise a combination of one 
or more Tribes that may or may not be independently eligible under Sec.  
29.100, so long as the consortium is eligible.



Sec.  29.304  May a compact be amended?

    A compact may be amended at any time by the mutual written agreement 
of the Department and the Tribe.

                           Funding Agreements



Sec.  29.305  When can a Tribe initiate negotiation of a funding
agreement?

    Concurrent with or after a Tribe has entered into a compact with the 
Department, the Department and the Tribe will negotiate a funding 
agreement, consistent with Sec. Sec.  29.101 through 29.109. The funding 
agreement is the legally binding written agreement that identifies the 
funds the Tribe will use to carry out its PSFAs, and sets forth the 
terms and conditions under which the Tribe will receive the funds.



Sec.  29.306  What is the duration of a funding agreement?

    (a) The duration of a funding agreement is one year unless the 
Department and a Tribe negotiate a multi-year funding agreement or, for 
an initial funding agreement, a partial-year agreement.
    (b) Each funding agreement will remain in full force and effect 
until the Department and the Tribe execute a subsequent funding 
agreement, except when:
    (1) The Tribe provides notice to the Department that it is 
withdrawing or retroceding funds for the operation of one or more PSFAs 
(or portions thereof) identified in the funding agreement;
    (2) The Department terminates the funding agreement under 23 U.S.C. 
207(f)(2); or
    (3) The Department and the Tribe agree otherwise.



Sec.  29.307  What terms must a funding agreement include?

    A funding agreement must set forth the following:
    (a) The funds the Department will provide, including those funds 
provided on a recurring basis;
    (b) The PSFAs the Tribe intends to carry out using the funds;
    (c) The general budget category assigned to the funds;
    (d) The time and method of transfer of funds;
    (e) The responsibilities of the Department and the Tribe;
    (f) Any applicable statutory limitations on the use of funds;
    (g) Any statutory or negotiated reporting requirements;
    (h) Any applicable Federal or federally approved design, 
construction, and monitoring standards, or the Tribe's design, 
construction, and monitoring standards, if they are consistent with or 
exceed the Federal or federally approved standards;
    (i) Other Federal health and safety requirements that apply to the 
funds included in the funding agreement, or the Tribe provides adequate 
assurance that its relevant health and safety requirements are 
consistent with or exceed such requirements;
    (j) If the funding agreement includes TTP funds under 23 U.S.C. 202 
and

[[Page 357]]

Sec.  29.400(a), provisions related to planning, inventory, and 
allowable use of funds in 25 CFR part 170 necessary for administration 
of the TTP, consistent with the Program's goal to reduce administrative 
burdens on the Tribe, or Tribal provisions that meet or exceed those 
standards;
    (k) Any other provision agreed to by the Department and the Tribe, 
such as program oversight, accountability, annual reporting on 
expenditure of Federal funds, and technical assistance; and
    (l) Provisions authorizing the Department to terminate the funding 
agreement (in whole or in part) and reassume the remaining funding for 
transfer, as appropriate.



Sec.  29.308  May the funding agreement include additional terms from
title I of the Indian Self-Determination and Education Assistance Act?

    At a Tribe's request, the Department and the Tribe may incorporate 
into a compact or funding agreement any other provision of title I of 
the Indian Self-Determination and Education Assistance Act, unless the 
Department determines there is a conflict between the provision and 23 
U.S.C. 207. The Department will make the determination consistent with 
23 U.S.C. 207(j).



Sec.  29.309  Will a funding agreement include provisions pertaining
to flexible or innovative financing?

    If the Department and a Tribe agree, a funding agreement will 
include provisions pertaining to flexible financing and innovative 
financing. In that event, the Department and the Tribe will establish 
terms and conditions relating to the flexible and innovative financing 
provisions that are consistent with 23 U.S.C. 207(d)(2)(C).



Sec.  29.310  How is a funding agreement amended?

    A funding agreement may be amended by the mutual written agreement 
of the Department and the Tribe as provided for in the funding 
agreement. The Department will not revise, amend, or require additional 
terms in a new or subsequent funding agreement without the consent of 
the Tribe, unless such terms are required by Federal law.



Sec.  29.311  Is a subsequent funding agreement retroactive to the end
of the term of the preceding funding agreement?

    When the Department and a Tribe execute a subsequent funding 
agreement, the provisions of such a funding agreement are retroactive to 
the end of the term of the preceding funding agreement.



      Subpart E_Rules and Procedures for Transfer and Use of Funds



Sec.  29.400  What funds may a Tribe elect to include in a funding
agreement?

    A Tribe may elect to include in a funding agreement the following 
funds:
    (a) Funds provided to the Tribe under the Tribal Transportation 
Program identified in 23 U.S.C. 202 in accordance with the statutory 
formula set forth in 23 U.S.C. 202(b);
    (b) Any transit funds provided to the Tribe under 49 U.S.C. 5311;
    (c) Funds for any discretionary or competitive grant administered by 
the Department awarded to the Tribe for a transportation program under 
title 23 of the U.S. Code or chapter 53 of title 49 of the U.S. Code;
    (d) Funds for any other discretionary or competitive grant for a 
transportation-related purpose administered by the Department otherwise 
available to the Tribe;
    (e) Federal-aid funds apportioned to a State under chapter 1 of 
title 23 of the U.S. Code if the State elects to transfer, pursuant to 
23 U.S.C. 207(d)(2)(A)(ii) or 23 U.S.C. 202(a)(9), a portion of such 
funds to the Tribe for an eligible project; and
    (f) Formula funds awarded to a State under 49 U.S.C. 5311 that the 
State elects to award to the Tribe, where the Tribe and State agree that 
the Department will award the funds directly to the Tribe.



Sec.  29.401  What funds must the Department transfer to a Tribe in a
funding agreement?

    (a) Subject to the terms of a funding agreement, the Department must 
transfer to a Tribe all the funds provided for in the funding agreement.

[[Page 358]]

    (b) The Department must provide funds for periods covered by a joint 
resolution adopted by Congress making continuing appropriations and 
authorization extensions, to the extent permitted by such resolutions. 
The Department will defer payment of funds to the Tribe if the period of 
continuing appropriations is less than 35 days.
    (c) To the extent a Tribe elects to include the following funds in 
its funding agreement, the Department will include the amount equal to:
    (1) The amount awarded to the Tribe for any discretionary or 
competitive grant;
    (2) The amount transferred to the Tribe by a State;
    (3) The sum of the funds that the Tribe would otherwise receive in 
accordance with a funding formula or other allocation method set forth 
in title 23 of the U.S. Code or chapter 53 of title 49 of the U.S. Code; 
and
    (4) Such additional amounts as the Department determines equal the 
amounts that would have been withheld, if any, for the costs of the 
Bureau of Indian Affairs to administer the program or project on behalf 
of the Tribe.



Sec.  29.402  Is the Tribe responsible for the funds included in a
funding agreement?

    The Tribe is responsible for implementing the Tribe's PSFAs using 
the funds included in a funding agreement and for administering the 
funds in accordance with this part. In addition, the Tribe must carry 
out its PSFAs in accordance with the funding agreement, and all 
applicable statutes and regulations identified in the funding agreement.



Sec.  29.403  When must the Department transfer to a Tribe the funds
identified in a funding agreement?

    When a funding agreement requires an annual transfer of funds to be 
made by the Department at the beginning of a fiscal year, or requires 
semiannual or other periodic transfers of funds to be made to a Tribe, 
the Department will make the first transfer no later than 10 days after 
the apportionment of such funds by the Office of Management and Budget 
to the Department, unless the funding agreement provides otherwise. 
Consistent with the Prompt Payment Act, the Department is not 
responsible for any interest penalty if the Department makes the 
transfer within 30 days.



Sec.  29.404  When must the Department transfer funds that were not
paid as part of the initial lump sum payment (or initial periodic payment)?

    The Department must transfer any funds that were not paid in the 
initial lump sum payment (or initial periodic payment) within 10 days 
after the apportionment of such funds by the Office of Management and 
Budget to the Department, unless the funding agreement provides 
otherwise. Consistent with the Prompt Payment Act, the Department is not 
responsible for any interest penalty if the Department makes the 
transfer within 30 days.



Sec.  29.405  When must the Department transfer funds for a discretionary
or competitive grant?

    If the Department selects a Tribe for a discretionary or competitive 
grant, and the Tribe elects to include the grant funds in its funding 
agreement, the Department will transfer the funds to the Tribe in 
accordance with the terms of the Notice of Funding Opportunity or as the 
Department and the Tribe may otherwise agree. The Department will 
transfer these funds no later than 10 days after the Department and the 
Tribe execute a funding agreement or an amendment covering the grant, 
unless the funding agreement provides otherwise. Consistent with the 
Prompt Payment Act, the Department is not responsible for any interest 
penalty if the Department makes the transfer within 30 days.



Sec.  29.406  Does the award of funds for a discretionary or competitive
grant entitle a Tribe to receive the same amount in subsequent years?

    The award of funds for a discretionary or competitive grant does not 
entitle a Tribe to receive the same amount of funds in subsequent years.

[[Page 359]]



Sec.  29.407  Does the award of funds for discretionary or competitive
grants entitle the Tribe to receive contract support costs?

    Receipt of discretionary or competitive grant awards does not 
entitle the Tribe to receive contract support costs or any other amounts 
identified in 25 U.S.C. 5325. However, a Tribe may use grant awards to 
cover overhead and administrative expenses associated with operation of 
the grant, as provided in the grant award.



Sec.  29.408  How may a Tribe use interest earned on funds included in
a funding agreement?

    A Tribe may retain interest earned on funds included in a funding 
agreement to carry out transportation or governmental functions.



Sec.  29.409  May a Tribe carry over from one fiscal year to the next
any funds that remain at the end of the funding agreement?

    A Tribe may carry over from one fiscal year to the next any funds 
that remain at the end of the funding agreement, consistent with the 
following:
    (a) The period of availability for formula funds included in a 
funding agreement does not lapse. After transfer to the Tribe, such 
funds will remain available until expended. If a Tribe elects to carry 
over funds from one fiscal year to the next, such carryover funds will 
not diminish the amount of formula funds the Tribe is authorized to 
receive under its funding agreement in that or any subsequent fiscal 
year.
    (b) The period of availability for discretionary or competitive 
grants are specific to the funding source and will be set forth in the 
funding agreement.



Sec.  29.410  May a Tribe use remaining funds from a discretionary or
competitive grant included in a funding agreement?

    A Tribe may use remaining funds from a discretionary or competitive 
grant included in a funding agreement, but only with written approval 
from the Department. The Department must determine that the use of such 
funds is consistent with the statutory requirements of the grant 
program, including purpose and time, and is for the project for which 
the grant was provided.



Sec.  29.411  Are funds included in a compact and funding agreement
non-Federal funds for purposes of meeting matching or cost participation
requirements under any other Federal or non-Federal program?

    Notwithstanding any other provision of law, pursuant to 25 U.S.C. 
5325(j), funds included in a compact and funding agreement are 
considered non-Federal funds for purposes of meeting matching or cost 
participation requirements under any other Federal or non-Federal 
program.



Sec.  29.412  May the Department increase the funds included in the
funding agreement if necessary to carry out the Program?

    The Department may increase the funds included in the funding 
agreement if necessary to carry out the Program. However, the Department 
and the Tribe must agree to any transfer of funds to the Tribe unless 
otherwise provided for in the funding agreement.



Sec.  29.413  How will the Department assist a Tribe with its credit
requests?

    At the request of a Tribe that has applied for a loan or other 
credit assistance from a State infrastructure bank or other financial 
institution to complete an eligible transportation-related project with 
funds included in a funding agreement, the Department will provide 
documentation in its possession or control to assist the Tribe.



Sec.  29.414  What limitations apply to Department actions related to
transfer of funds associated with PSFAs?

    The Department will not:
    (a) Fail or refuse to transfer to a Tribe its full share of funds 
due under the Program, except as required by Federal law;
    (b) Withhold portions of such funds for transfer over a period of 
years;
    (c) Reduce the amount of funds identified for transfer in a funding 
agreement to make funding available for self-governance monitoring or 
administration by the Department;
    (d) Reduce the amount of funds included in a funding agreement in 
subsequent years, except pursuant to:
    (1) A reduction in appropriations from the previous fiscal year or a 
change in the funding formula;

[[Page 360]]

    (2) A congressional directive in legislation or accompanying report;
    (3) A Tribal authorization;
    (4) A change in the amount of pass-through funds;
    (5) Completion of a project, activity, or program for which 
discretionary or competitive grant funds were provided;
    (6) Expenditure of all discretionary or competitive grant funds 
authorized by the Department under separate statutory authorities for an 
eligible project, activity, or program; or
    (7) A final decision by the Department pursuant to subpart I to 
terminate a compact or funding agreement (or portions thereof) due to a 
finding of gross mismanagement or imminent jeopardy.
    (e) Reduce the amount of funds identified in a funding agreement to 
pay for Federal functions, including Federal pay costs, Federal employee 
retirement benefits, automated data processing, technical assistance, 
and monitoring of activities under the Program, except that such 
prohibition is inapplicable when Congress authorizes the Department to 
set aside a portion of the funds for Department project monitoring and 
oversight related functions; or
    (f) Reduce the amount of funds required under the Program to pay for 
costs of Federal personnel displaced by compacts and funding agreements.



Sec.  29.415  Does the Prompt Payment Act apply to funds included in a 
funding agreement?

    The Prompt Payment Act, 31 U.S.C. 3901 et seq., applies to the 
transfer of funds under the Program.



Sec.  29.416  What standard applies to a Tribe's management of funds
included in a funding agreement?

    (a) A Tribe must invest and manage funds included in a funding 
agreement as a prudent investor would, in light of the purpose, terms, 
distribution requirements, and applicable provisions, in the compact and 
funding agreement. This duty requires the exercise of reasonable care, 
skill, and caution, and is to be applied to investments not in 
isolation, but in the context of the investment portfolio and as a part 
of an overall investment strategy, which should incorporate risk and 
return objectives reasonably suited to the Tribe. In making and 
implementing investment decisions, the Tribe has a duty to diversify the 
investments unless, under the circumstances, it is prudent not to do so.
    (b) A Tribe must:
    (1) Conform to fundamental fiduciary duties of loyalty and 
impartiality;
    (2) Act with prudence in deciding whether and how to delegate 
authority and in the selection and supervision of agents; and
    (3) Incur only costs that are reasonable in amount and appropriate 
to the investment responsibilities of the Tribe.



Sec.  29.417  Must a Tribe continue performance of the Tribal 
Transportation Program or the Tribal Transit Program under a compact
and funding agreement if the Department does not transfer sufficient 
funds?

    A Tribe does not have to continue performance of the Tribal 
Transportation Program (23 U.S.C. 202(b)) or the Tribal Transit Program 
(49 U.S.C. 5311(c)(1)) that requires an expenditure of funds in excess 
of the amount of funds included in a funding agreement. If at any time 
the Tribe has reason to believe that the total amount included in a 
funding agreement is insufficient, the Tribe must provide reasonable 
notice of such insufficiency to the Self-Governance Official. If the 
Department does not increase the amount of funds included in the funding 
agreement for the Tribal Transportation Program or Tribal Transit 
Program, the Tribe may suspend performance of the program activity until 
such time as the Department transfers additional funds.



Sec.  29.418  May a funding agreement include transfers of State funds?

    (a) A State may elect to provide a portion of Federal-aid funds 
apportioned to the State under chapter 1 of title 23 of the U.S. Code to 
an eligible Tribe for a project eligible under 23 U.S.C. 202(a).
    (b) If a State provides such funds, the transfer may occur in 
accordance with 23 U.S.C. 202(a)(9), 23 U.S.C. 207(d)(2)(A)(ii), or the 
State may transfer the funds to the Department, and the Department will 
transfer the funds

[[Page 361]]

to the participating Tribe through the Tribe's funding agreement.
    (c) If a State provides such funds, the Tribe (and not the State) 
will be responsible for:
    (1) Constructing and maintaining any projects carried out using the 
funds;
    (2) Administering and supervising the projects and funds in 
accordance with 23 U.S.C. 207;
    (3) Complying with applicable post-construction requirements.
    (d) The receipt of any State funds transferred at the election of a 
State to the Tribe pursuant to 23 U.S.C. 202(a)(9), 23 U.S.C. 
207(d)(2)(A)(ii), or funds awarded to a State pursuant to 49 U.S.C. 5311 
that are transferred at the election of a State to the Federal Transit 
Administration for the benefit of a Tribe does not entitle the Tribe to 
receive contract support costs under 25 U.S.C. 5325(a). While a Tribe is 
not entitled to additional funds for contract supports costs, a Tribe 
may use a portion of such State funds for overhead and administrative 
expenses if such costs are reasonable, allowable, and allocable in 
accordance with 2 CFR part 200 and the statutory and regulatory 
requirements applicable to the funding source.



Sec.  29.419  Does the award of formula funds entitle a Tribe to receipt
of contract support costs?

    The award of formula funds does not entitle a Tribe to receive 
contract support costs under 25 U.S.C. 5325(a). A funding agreement will 
not provide additional funds for contract support costs to carry out 
PSFAs. While a Tribe is not entitled to additional funds for contract 
support costs, a Tribe may use a portion of its formula funds (Sec.  
29.400(a) and (b)) for overhead and administrative expenses if such 
costs are reasonable, allowable, and allocable in accordance with 2 CFR 
part 200 and the statutory and regulatory requirements applicable to the 
funding source.



Sec.  29.420  Is a Tribe entitled to enter into facility leases from 
the Department and to receive facility support costs?

    A Tribe is not entitled to enter into facility leases with the 
Department and receive facility support costs. A funding agreement will 
not provide additional funds for facility leases and facility support 
costs to carry out PSFAs. However, facility leases and facility support 
costs may be an eligible and allowable use of funds a Tribe receives 
under a funding agreement.



Sec.  29.421  May a Tribe redesign, consolidate, reallocate, or redirect
the funds included in a funding agreement?

    (a) A Tribe may redesign, consolidate, reallocate, or redirect funds 
included in a funding agreement in any manner it considers to be in the 
best interest of the Indian community being served, provided that:
    (1) The funds are expended on projects identified in a 
transportation improvement program approved by the Department, where 
statutorily required; and
    (2) The funds are used in accordance with the requirements in 
appropriations acts, title 23 of the U.S. Code, chapter 53 of title 49 
of the U.S. Code, and any other applicable law.
    (b) Consistent with 23 U.S.C. 207(e)(1)(B), a Tribe may not 
redesign, consolidate, reallocate, or redirect any discretionary or 
competitive grant funds or State transfers of funds that are included in 
the funding agreement. A Tribe may use remaining funds from a 
discretionary or competitive grant in accordance with Sec.  29.410.



                      Subpart F_Program Operations

                       Audits and Cost Principles



Sec.  29.500  Must a Tribe undertake an annual audit?

    A Tribe that meets the applicable thresholds under 2 CFR 200.501 
must undertake an annual audit pursuant to the regulations set forth in 
2 CFR part 200, Uniform Administrative Requirements, Cost Principles, 
and Audit Requirements for Federal Awards, except to the extent that 
part 200 exempts a Tribe from complying with the audit requirements.

[[Page 362]]



Sec.  29.501  Must a Tribe submit any required audits to the Federal
Audit Clearinghouse and the Department?

    A Tribe must submit any required audits to the Federal Audit 
Clearinghouse pursuant to the Office of Management and Budget procedures 
and provide prompt notice to the Department it has done so.



Sec.  29.502  Who is responsible for compiling, copying, and paying
for materials for any audit or examination?

    The agency or entity undertaking the examination or audit will be 
responsible for all costs associated with an audit or examination of 
Tribal records. A Tribe is responsible for making records available 
during regular business hours, and may prevent removal of the records 
from Tribal offices. If an agency or entity undertaking the examination 
or audit requests that the Tribe make copies of records for its use, the 
Tribe must do so, but may charge the examining agency reasonable per-
page fees for photocopying or scanning of documents and records.



Sec.  29.503  How may the Federal Government make a claim against a
Tribe relating to any disallowance of costs based on an audit conducted
under this part?

    (a) Disallowance of costs. Any claim by the Federal Government 
against a Tribe relating to funds included in a funding agreement based 
on any audit conducted pursuant to this part is subject to 25 U.S.C. 
5325(f).
    (1) Any right of action or other remedy (other than those relating 
to a criminal offense) relating to any disallowance of costs is barred 
unless the Department provides notice of such a disallowance within 365 
days from receiving any required annual audit report. The notice must 
set forth the Tribe's appeal and hearing rights in accordance with 
Sec. Sec.  29.912 through 29.923.
    (2) To calculate the 365-day period, an audit report is deemed 
received by the Department on the date of electronic submission to the 
Federal Audit Clearinghouse. The Department has 60 days after receiving 
the audit report to give notice to the Tribe of its determination to 
reject an audit report as insufficient due to non-compliance with the 
applicable provisions of 2 CFR part 200 or any applicable statute.
    (b) Criminal penalties. Any person, officer, director, agent, 
employee, or person otherwise connected with a recipient of a contract, 
subcontract, grant, or sub-grant under a compact or funding agreement 
who embezzles, willfully misapplies, steals, or obtains by fraud any of 
the money, funds, assets, or property provided to the recipient will be 
fined not more than $10,000 or imprisoned for not more than 2 years, or 
both. If the amount of funds in question does not exceed $100, then the 
fine will be no more than $1,000 and imprisonment not more than 1 year, 
or both.



Sec.  29.504  What cost principles must a Tribe apply in compacts and
funding agreements?

    (a) A Tribe must apply the applicable cost principles of the Office 
of Management and Budget's Uniform Administrative Requirements, Cost 
Principles, and Audit Requirements for Federal Awards, 2 CFR part 200, 
except as modified by:
    (1) 25 U.S.C. 5325(k), which sets forth certain categories of 
allowable uses of funds that a Tribe may include in a funding agreement 
provided that such use supports implementation of a PSFA;
    (2) Other provisions of Federal law; or
    (3) Any subsequent exemptions granted by the Office of Management 
and Budget.
    (b) The Department may not require a Tribe to apply other audit or 
accounting standards.

                 Standards for Tribal Management Systems



Sec.  29.505  What are the financial management systems that a Tribe
carrying out a compact and funding agreement must develop, implement,
and maintain to ensure the proper expenditure and accounting of
Federal funds?

    (a) Generally. To ensure the proper expenditure and accounting of 
Federal funds, a Tribe carrying out a compact and funding agreement must 
develop, implement, and maintain financial

[[Page 363]]

management systems that meet the financial standards and minimum 
requirements set forth in Sec. Sec.  29.506 and 29.507, unless the 
Department waives, in whole or in part, one or more of the standards.
    (b) Applicability to Tribal contractors. A Tribe may require that 
its contractors comply with some or all of the standards and 
requirements in Sec. Sec.  29.506 and 29.507 when the Tribe retains 
contractors to assist in carrying out the requirements of a funding 
agreement.
    (c) Evaluation. When required under 2 CFR part 200, an independent 
auditor retained by a Tribe must evaluate the financial management 
systems of the Tribe through an annual audit report in accordance with 
the Single Agency Audit Act, 31 U.S.C. 7501-7506.



Sec.  29.506  What standards apply to a Tribe's financial management
systems when carrying out a compact and funding agreement?

    The following standards apply to a Tribe's financial management 
systems when carrying out a compact and funding agreement:
    (a) The system must expend and account for funds included in a 
funding agreement in accordance with:
    (1) The compact and funding agreement;
    (2) All statutory requirements applicable to the funding source; and
    (3) Applicable provisions of 2 CFR part 200.
    (b) The fiscal control and accounting procedures of a Tribe's 
financial management system must be sufficient to:
    (1) Permit the preparation of reports required by applicable Federal 
law, the compact, funding agreement, and this part; and
    (2) Permit the tracing of program or project funds to a level of 
expenditure adequate to establish that the funds have not been used in 
violation of any restrictions or prohibitions contained in any statute 
or provision of 2 CFR part 200 that applies to the funds included in the 
compact and funding agreement.



Sec.  29.507  What minimum requirements must a Tribe's financial 
management system include to meet the standards set forth in Sec. 29.506?

    To meet the standards set forth in Sec.  29.506, a Tribe's financial 
management system must include the following minimum requirements:
    (a) Financial reports. The financial management system must provide 
for accurate, current, and complete disclosure of the financial results 
of activities carried out by a Tribe under a compact and funding 
agreement;
    (b) Accounting records. The financial management system must 
maintain records sufficiently detailed to identify the source and 
application of funds transferred to a Tribe in a funding agreement. The 
system must contain sufficient information to identify awards, 
obligations and unobligated balances, assets, liabilities, outlays, or 
expenditures and income;
    (c) Internal controls. The financial management system must maintain 
effective control and accountability for all funds included in a funding 
agreement and for all Federal real property, personal property, and 
other assets furnished for use by a Tribe under its compact and funding 
agreement;
    (d) Budget controls. The financial management system must permit the 
comparison of actual expenditures or outlays with the amounts budgeted 
by a Tribe for each funding agreement;
    (e) Allowable costs. The financial management system must be 
sufficient to determine that the expenditure of funds is reasonable, 
allowable, and allocable based upon the terms of the compact and funding 
agreement and applicable provisions of 2 CFR part 200;
    (f) Source documentation. The financial management system must 
contain accounting records that are supported by source documentation, 
such as canceled checks, paid bills, payroll records, time and 
attendance records, contract award documents, purchase orders, and other 
primary records that support expenditures; and
    (g) Cash management. The financial management system must provide 
for accurate, current, and complete disclosure of cash revenues 
disbursements, cash-on-hand balances, and obligations by source and 
application for a Tribe so

[[Page 364]]

that complete and accurate cash transactions may be prepared by the 
Tribe.



Sec.  29.508  What procurement standards apply to contracts carried
out using funds included in a funding agreement?

    (a) Each contract carried out using funds included in a funding 
agreement must, at a minimum:
    (1) Be in writing;
    (2) Identify the interested parties, their respective roles and 
responsibilities, and the purposes of the contract;
    (3) State the work to be performed under the contract;
    (4) State the process for making any claim, the payments to be made, 
and the terms of the contract; and
    (5) State that it is subject to 25 U.S.C. 5307(b) consistent with 
Sec.  29.524.
    (b) A Tribe that chooses to use a procurement method that is not 
provided for in its established procurement management standards in the 
delivery of a Tribal transportation project must submit the request to 
deviate from these standards to the Department for review and approval 
in accordance with Sec.  29.515. The deviation request must specify the 
procurement method that the Tribe proposes to use and the project to 
which such method will be applied.



Sec.  29.509  What property management systems and standards must a
Tribe maintain?

    (a) Property management system. A Tribe must maintain a property 
management system to account for all property acquired with funds 
included in a funding agreement, acquired with Federal funds awarded by 
the Department or the Department of the Interior, or obtained as excess 
or surplus Federal property to be used for activities under the Program. 
The property management system must address the use, care, maintenance, 
and disposition of such property as follows:
    (1) Where title vests in the Tribe, in accordance with Tribal law 
and procedures; or
    (2) In the case of a consortium, according to the internal property 
procedures of the consortium.
    (b) Transit asset management. In addition to the property management 
system and standards in this section, property acquired with transit 
funds (chapter 53 of title 49 of the U.S. Code) is subject to the 
property management requirements set forth in 49 U.S.C. 5326 concerning 
the transit asset management plan, performance targets, and reports.
    (c) Tracking requirements under a property management system. The 
property management system of a Tribe relating to property used under 
the Program must track:
    (1) Personal property and rolling stock with an acquisition value in 
excess of $5,000 per item;
    (2) Sensitive personal property, which is all personal property that 
is subject to theft and pilferage, as defined by the Tribe; and
    (3) Real property.
    (d) Records. The property management system must maintain records 
that accurately describe the property, including any serial number, 
vehicle identification number, or other identification number. These 
records should contain current information such as the source, 
titleholder, acquisition date, acquisition cost, share of Federal 
participation in the cost, location, use and current condition of the 
property, and the date of disposal and sale price, if any.
    (e) Internal controls. The property management system must maintain 
effective internal controls that include, at a minimum, procedures for a 
Tribe to:
    (1) Conduct periodic, physical inventories at least once every 2 
years and reconcile such inventories with the Tribal internal property 
and accounting records;
    (2) Prevent loss or damage to property; and
    (3) Ensure that property is used by the Tribe to carry out 
activities under a funding agreement until the Tribe declares the 
property excess to the needs of the PSFAs carried out by the Tribe under 
the funding agreement, consistent with the property management system of 
the Tribe.
    (f) Maintenance requirements. Required maintenance includes the 
performance of actions necessary to keep the property in good working 
condition, the procedures recommended by equipment manufacturers, and 
steps

[[Page 365]]

necessary to protect the interests of the Department and the Tribe in 
any express warranties or guarantees covering the property.
    (g) Disposition of personal property acquired under a funding 
agreement. Prior to disposition of any personal property acquired under 
a funding agreement, including rolling stock, a Tribe must report to the 
Self-Governance Official in writing on the property's status (e.g., worn 
out, lost, stolen, damaged beyond repair, or no longer needed to carry 
out activities under a funding agreement). The Department will provide 
disposition instructions in accordance with 2 CFR 200.313. A Tribe may 
retain, sell, or otherwise dispose of personal property with a current 
per unit fair market value of $5,000 or less with no further obligation 
to the Department.
    (h) Disposition of real property acquired under a funding agreement. 
Prior to disposition of any real property acquired under a funding 
agreement, a Tribe must report to the Self-Governance Official, who will 
ensure the Department provides disposition instructions in accordance 
with 2 CFR 200.311.

                                 Records



Sec.  29.510  Must a Tribe maintain a recordkeeping system?

    A Tribe must maintain records and provide Federal agency access to 
those records as provided in 25 U.S.C. 5386(d) and the statutory 
requirements of the funds included in a funding agreement.



Sec.  29.511  Are Tribal records subject to the Freedom of Information
Act and Federal Privacy Act?

    (a) Except to the extent that a Tribe specifies otherwise in its 
compact or funding agreement, the records of the Tribe retained by the 
Tribe will not be considered Federal records for purposes of chapter 5 
of title 5 of the U.S. Code.
    (b) Tribal records submitted to the Department are considered 
Federal records for the purposes of the Freedom of Information Act 
(FOIA) and Federal Privacy Act. If a Tribe provides information to the 
Department that the Tribe considers to be trade secret, or confidential 
commercial or financial information, the Tribe must identify it as such. 
The Department will not disclose the information to the public, except 
to the extent required by law. In the event the Department receives a 
FOIA request for such information, the Department will follow the 
procedures described in its FOIA regulations at 49 CFR part 7.



Sec.  29.512  Must a Tribe make its records available to the Department?

    After 30 days advance written notice from the Department, a Tribe 
must provide the Department with reasonable access to such records to 
enable the Department to meet its minimum legal recordkeeping system and 
audit requirements.



Sec.  29.513  How long must a Tribe keep and make available records?

    A Tribe must keep books, documents, papers, and records of funding, 
grants, and State-provided funds for 3 years from the date of submission 
of the Single Audit Act audit report and provide the Department or the 
Comptroller General access to such records for audit and examination 
related to compacts, funding agreements, grants, contracts, 
subcontracts, sub-grants, or other arrangements under the Program.

                               Procurement



Sec.  29.514  When procuring property or services with funds included
in a funding agreement, can a Tribe follow its own procurement standards?

    When procuring property or services with funds included in a funding 
agreement, a Tribe must have standards that conform to the procurement 
standards in this subpart. If a Tribe relies upon procurement standards 
different than those described in Sec.  29.515, it must identify the 
standards it will use in in the initial negotiation of a funding 
agreement or as a waiver request to an existing funding agreement. The 
Tribe must submit the request to the Department in accordance with Sec.  
29.534.

[[Page 366]]



Sec.  29.515  What are the minimum procurement standards that a Tribe
must follow when procuring property or services with funds included in
a funding agreement?

    A Tribe must follow the minimum procurement standards set forth in 
this section when procuring property or services with funds included in 
a funding agreement.
    (a) Minimum procurement standards. (1) A Tribe must ensure that its 
vendors and contractors perform in accordance with the terms, 
conditions, and specifications of their contracts or purchase agreements 
or orders.
    (2) A Tribe must maintain written standards of conduct governing the 
performance of its employees who award and administer contracts paid for 
using funds included in a funding agreement.
    (i) An employee, officer, elected official, or agent of a Tribe must 
not participate in the selection, award, or administration of a 
procurement supported by Federal funds if a conflict of interest, real 
or apparent, as defined in the conflict of interest policies of the 
Tribe, would be involved.
    (ii) Employees, officers, elected officials, or agents of a Tribe, 
or of a subcontractor of the Tribe, must not solicit or accept 
gratuities, favors, or anything of monetary value from contractors, 
potential contractors, or parties to sub-agreements, except that the 
Tribe may exempt a financial interest that is not substantial or a gift 
that is an unsolicited item of nominal value.
    (iii) The standards must also provide for penalties, sanctions, or 
other disciplinary actions for violations of the procurement standards.
    (3) A Tribe must review proposed procurements to avoid buying 
unnecessary or duplicative items and ensure the reasonableness of the 
price. The Tribe should consider consolidating or separating out 
procurement to obtain more economical purchases. Tribes are encouraged 
to realize economies of scale in the procurement of goods, services, and 
supplies under this part, including the negotiation of cooperative 
agreements with other public authorities. Where appropriate, the Tribe 
must compare leasing and purchasing alternatives to determine which is 
more economical.
    (4) A Tribe must conduct all major procurement transactions that 
exceed the simplified acquisition threshold set forth in 2 CFR 200.88 by 
providing full and open competition to the extent necessary to assure 
efficient expenditure of contract funds and to the extent feasible in 
the local area.
    (i) Consistent with 2 CFR 200.88, a Tribe may develop its own 
definition for a simplified acquisition threshold.
    (ii) To the greatest extent feasible, a Tribe must apply to any 
procurement award the Indian preference requirements for wages and 
grants contained in 25 U.S.C. 5307(b).
    (5) A Tribe must make procurement awards only to responsible 
entities with the ability to perform successfully under the terms and 
conditions of the proposed procurement. In making this judgment, the 
Tribe will consider such matters as the contractor's integrity, its 
compliance with public policy, its record of past performance, and its 
financial and technical resources.
    (6) A Tribe must maintain records on the significant history of all 
major procurement transactions. These records must include, but are not 
limited to, the rationale for the method of procurement, the selection 
of contract type, the contract selection or rejection, and the basis for 
the contract price.
    (7) A Tribe is solely responsible, using good administrative 
practice and sound business judgment, for processing and settling all 
contractual and administrative issues arising out of a procurement. 
These issues include, but are not limited to, source evaluation, 
protests, disputes, and claims.
    (i) The settlement of any protest, dispute, or claim will not 
relieve the Tribe of any obligations under a funding agreement.
    (ii) Violations of law must be referred to the Tribal or Federal 
authority having proper jurisdiction.
    (b) Conflicts of interest. A Tribe participating in the program must 
ensure that internal measures and controls are in place to address 
conflicts of interest in the administration of compacts and funding 
agreements.

[[Page 367]]



Sec.  29.516  Do Federal laws and regulations apply to a Tribe's
contractors or subcontractors?

    A Tribe's contractors or subcontractors are responsible for 
complying with Federal laws and regulations. Contracts between a Tribe 
and its contractors should inform contractors that the contract is 
carried out using funds included in a funding agreement, and that the 
contractors and its subcontractors are responsible for identifying and 
ensuring compliance with applicable Federal laws and regulations. The 
Department and the Tribe may, through negotiation, identify all or a 
portion of such requirements in the funding agreement and, if so 
identified, these requirements should be identified in the contracts the 
Tribe awards using funds included in a funding agreement.



Sec.  29.517  Can a Tribe use Federal supply sources in the performance
of a compact and funding agreement?

    A Tribe and its employees may use Federal supply sources (including 
lodging, airline, interagency motor pool vehicles, and other means of 
transportation) in the performance of a compact and funding agreement to 
the same extent as if the Tribe were a Federal agency. The Department 
will assist the Tribes, to the extent feasible, to resolve any barriers 
to full implementation.

                                Reporting



Sec.  29.518  What reporting must a Tribe provide?

    (a) A Tribe must provide reports mandated by statute associated with 
the funds included in the funding agreement. In accordance with Sec.  
29.307, the funding agreement will list these reporting requirements. 
The Tribe will cooperate with the Department to assist the Department in 
complying with its statutory reporting requirements. No additional 
reporting will be required of the Tribe.
    (b) Notwithstanding paragraph (a) of this section, if the Tribe 
includes funds for a discretionary or competitive grant in a funding 
agreement, the Department and the Tribe will negotiate the appropriate 
reporting requirements to include in the funding agreement.

                                Property



Sec.  29.519  How may a Tribe use existing Department facilities, 
equipment, or property?

    At the request of a Tribe, the Department will permit the Tribe to 
use and maintain existing facilities, equipment therein or appertaining 
thereto, and other personal property, if applicable, owned by the 
Government within the Department's jurisdiction, subject to terms and 
conditions agreed to by the Department and the Tribe. The requested 
facilities, equipment, or property must be used to carry out the Tribe's 
PSFAs under the compact and funding agreement. Such facilities, 
equipment, or other personal property will be eligible for replacement, 
maintenance, and improvement using funds included in a funding 
agreement, or the Tribe may expend its own funds. The Department does 
not have any additional funding sources for replacement, maintenance, or 
improvement of such facilities, equipment, other personal property. The 
Department will exercise discretion in a way that gives the maximum 
effect to the request of the Tribe to use such facilities, equipment, or 
property.



Sec.  29.520  How may a Tribe acquire surplus or excess Federal property
for use under the Program?

    A Tribe may acquire any surplus or excess property for use in the 
performance of the compact and funding agreement consistent with the 
procedures established by the General Services Administration. The Tribe 
must notify the Self-Governance Official of the surplus or excess 
property it proposes to acquire and the purpose for which it will be 
used in the performance of the compact or funding agreement. If the 
Department participates in the acquisition by the Tribe of any excess or 
surplus Federal property, the Department will expeditiously process the 
request and assist the Tribe in its acquisition to the extent feasible 
and exercise discretion in a way that gives maximum effect to the 
Tribe's request for donation of the excess or surplus Federal property. 
When the Department's participation is required, the

[[Page 368]]

Department should expeditiously request acquisition of the property from 
the General Services Administration or the holding agency, as 
appropriate, by submitting the necessary documentation prior to the 
expiration of any ``freeze'' placed on the property by the Tribe or the 
Department on the Tribe's behalf. The Tribe must take title to any 
property acquired pursuant to this section. Such surplus or excess 
property will be eligible for replacement, maintenance, and improvement 
using funds included in a funding agreement, or the Tribe may expend its 
own funds. The Department does not have any additional funding sources 
for replacement, maintenance, or improvement of such surplus or excess 
property.



Sec.  29.521  How must a Tribe use surplus or excess Federal property
acquired under the Program?

    A Tribe must use any property acquired under this section in a 
manner consistent with the justification submitted at acquisition. The 
Tribe should notify the Self-Governance Official whenever use of the 
property changes significantly and upon disposal or sale.



Sec.  29.522  If a compact or funding agreement (or portion thereof)
is retroceded, reassumed, terminated, or expires, may the Department
reacquire title to 
          property purchased with funds under any compact and funding 
          agreement or excess or surplus Federal property that was 
          donated to the Tribe under the Program?

    If a compact or funding agreement (or portion thereof) is 
retroceded, reassumed, terminated, or expires, the Tribe retains title 
to the property purchased with funds under any compact and funding 
agreement or excess or surplus Federal property donated under the 
Program if it is valued at $5,000 or less. If the value of the property 
is over $5,000 at the time of retrocession, withdrawal, or reassumption, 
title to such property may revert to the Department at the Department's 
discretion.

                          Technical Assistance



Sec.  29.523  What technical assistance is available to a Tribe from
the Department?

    Upon the written request of a Tribe, and to the extent feasible, the 
Department will provide technical assistance, including periodic program 
reviews, to assist a Tribe improve its performance in carrying out the 
Program.

                            Prevailing Wages



Sec.  29.524  Do the wage and labor standards in the Davis-Bacon Act
apply to employees of a Tribe?

    Wage and labor standards of the Davis-Bacon Act do not apply to 
employees of a Tribe. However, Davis-Bacon wage rates apply to all 
Tribal contractors and subcontractors.

                            Tribal Preference



Sec.  29.525  Does Indian preference apply to PSFAs under the Program?

    To the greatest extent feasible, any contract, subcontract, grant, 
or sub-grant under a compact and funding agreement must give preference 
for employment and training, and the award of subcontracts and sub-
grants, to Indians, Indian organizations, and Indian-owned economic 
enterprises, as defined in 25 U.S.C. 1452.



Sec.  29.526  When do Tribal employment law and contract preference
laws govern?

    To the extent provided in applicable Federal law, Tribal law governs 
Indian preference policies in the performance of a compact and funding 
agreement. When a compact or funding agreement is intended to benefit 
one Tribe, the Tribal employment or contract preference laws adopted by 
such Tribe will govern with respect to the administration of the compact 
and funding agreement.

[[Page 369]]

             Environmental and Cultural Resource Compliance



Sec.  29.527  What compliance with environmental and cultural resource
statutes is required?

    (a) The Department must meet the requirements of applicable Federal 
environmental and cultural resource laws, such as the National 
Environmental Policy Act (NEPA) and the National Historic Preservation 
Act, for a proposed project under the Program.
    (b) The Secretary has delegated environmental and cultural resource 
compliance responsibilities to the Operating Administrations, as 
appropriate. As such, an Operating Administration will serve as the lead 
agency responsible for final review and approval of environmental 
documents, and any associated environmental determinations and findings 
for a proposed project under the Program. The Secretary, as delegated to 
the Operating Administrations, is also responsible for making 
determinations and issuing approvals in accordance with 23 U.S.C. 138 
and 49 U.S.C. 303 (Section 4(f)), as applicable. Tribes may consult with 
the Self-Governance Official to determine which Operating Administration 
should serve as the lead agency.
    (c) If the Department is conducting the environmental review process 
for a proposed project under the Program, the Tribe must assist the 
Department to satisfy the requirements of applicable Federal 
environmental and cultural resource laws.
    (d) A Tribe may manage or conduct the environmental review process 
for a proposed project under the Program and may prepare drafts of the 
appropriate environmental review documents for submission to the 
Department.
    (1) A Tribe may follow its own environmental review procedures if 
the procedures and documentation also satisfy the Federal environmental 
review requirements applicable to the project. A Tribe should work with 
the Operating Administration serving as lead agency to ensure the Tribal 
process will satisfy all applicable Federal environmental review 
requirements.
    (2) The Operating Administration serving as lead agency must 
determine that the Tribe's process and documentation satisfy the 
applicable Federal environmental review requirements.
    (e) As resources permit and at the request of a Tribe, the 
Department will provide advice and technical assistance to the Tribe to 
assist in the management of the Federal environmental review process and 
preparation of environmental documents.
    (f) Unless prohibited by law, a Tribe may use funds included in a 
funding agreement to pay for environmental review activities.

                         Federal Tort Claims Act



Sec.  29.528  Is the Federal Tort Claims Act applicable to a Tribe when
carrying out a compact and funding agreement?

    (a) Section 314 of Public Law 101-512 and 25 U.S.C. 5396(a) 
incorporated by 23 U.S.C. 207(l)(8) make the Federal Tort Claims Act 
(FTCA), 28 U.S.C. 1346(b), 2401, 2671-2680, applicable to a Tribe 
carrying out a compact and funding agreement.
    (b) Contractors, subcontractors, or sub-recipients of a Tribe are 
not subject to the terms and conditions of the FTCA. The Tribe may use 
the regulations set forth in 25 CFR part 900, subpart M, as guidance on 
the Tribe's rights and responsibilities under the FTCA. Accordingly, the 
Tribe must include, in any contract entered into with funds provided 
under a compact and funding agreement, a requirement that contractors, 
sub-contractors, or sub-recipients maintain applicable insurance 
coverage, such as workers compensation, auto, and general liability 
insurance, consistent with statutory minimums and local industry 
standards.



Sec.  29.529  What steps should a Tribe take after becoming aware of
a Federal Tort Claim?

    (a) Immediately after receiving a claim or a summons and complaint 
filed under the FTCA, the Tribe must notify the Self-Governance Official 
at [email protected] or use any other method that provides receipt.
    (b) The Tribe, through a designated tort claims liaison assigned by 
the Tribe, must assist the Department in

[[Page 370]]

preparing a comprehensive and factually based report, which will inform 
the Department's report to the U.S. Department of Justice.
    (c) The Tribe's designated tort claims liaison must immediately 
provide the following significant details of the event and include, as 
appropriate and to the extent within their knowledge, possession, or 
control:
    (1) The date, time, and exact place of the accident or incident;
    (2) A concise and complete statement of the circumstances of the 
accident or incident;
    (3) The names and addresses of Tribal or Federal employees involved 
as participants or witnesses;
    (4) The names and addresses of all other eyewitnesses;
    (5) An accurate description of all Federal, Tribal, and privately 
owned property involved, and the nature and amount of damage, if any;
    (6) A statement as to whether any person involved was cited for 
violating a Federal, State, or Tribal law, ordinance, or regulation;
    (7) The Tribe's determination as to whether any of its employees 
(including Federal employees assigned to the Tribe) involved in the 
incident giving rise to the tort claim were acting within the scope of 
their employment in carrying out the funding agreement at the time the 
incident occurred;
    (8) Copies of all relevant documentation, including available police 
reports, statements of witnesses, newspaper accounts, weather reports, 
plats, and photographs of the site or damaged property, that may be 
necessary or useful for the Department to determine the claim; and
    (9) Insurance coverage information, copies of medical bills, and 
relevant employment records.
    (d) The Tribe must cooperate with and provide all necessary 
assistance to the U.S. Department of Justice and the Department's 
attorneys assigned to defend the tort claim including case preparation, 
discovery, and trial.
    (e) If requested by the Department, the Tribe must make an 
assignment and subrogation of all the Tribe's rights and claims (except 
those against the Federal Government) arising out of a tort claim 
against the Tribe.
    (f) If requested by the Department, the Tribe must authorize 
representatives of the Department to settle or defend any claim and to 
represent the Tribe in or take charge of any action. If the Federal 
Government undertakes the settlement or defense of any claim or action, 
the Tribe must provide all reasonable additional assistance in reaching 
a settlement or asserting a defense.



Sec.  29.530  Is it necessary for a compact or funding agreement to
include any terms about FTCA coverage?

    Terms about FTCA coverage are optional in a compact or funding 
agreement, and the FTCA applies even if terms regarding FTCA are not 
included in a compact or funding agreement.



Sec.  29.531  Does FTCA cover employees of the Tribe who are paid by
the Tribe from funds other than those provided through the compact and
funding agreement?

    Subject to FTCA limitations, the FTCA covers employees of the Tribe 
who are not paid from compact and funding agreement funds as long as the 
services out of which the claim arose were performed in carrying out a 
compact and funding agreement.



Sec.  29.532  May persons who are not Indians assert claims under FTCA?

    Any aggrieved person may assert claims for alleged torts arising 
from activities performed in carrying out compacts and funding 
agreements.



Sec.  29.533  Does the year PSFAs are funded affect FTCA coverage?

    The year the funding was provided has no effect on the application 
of the FTCA.

                      Waiver of Program Regulations



Sec.  29.534  What is the process for regulation waivers under this part?

    (a) A Tribe may request a waiver of a regulation in this part with 
respect to a compact or funding agreement. The Tribe must submit the 
request in writing to the Self-Governance Official to [email protected] or 
use any other method that provides receipt, at the following address: 
Self-Governance Official, U.S. Department of Transportation, Office

[[Page 371]]

of the Secretary [INSERT MAIL CODE], 1200 New Jersey Avenue SE, 
Washington, DC 20590. The request must be marked with the words 
``REQUEST TO WAIVE REGULATIONS'' on the first page of the request and on 
the envelope enclosing the request (or in the subject line if by 
electronic mail). The request must identify the regulation subject to 
the waiver request, the language the Tribe seeks to waive, and the basis 
for the request.
    (b) Within 10 days of receipt of the waiver request, the Self-
Governance Official will send the Tribe an acknowledgement of the waiver 
request, together with a date-stamped cover sheet that indicates the 
date on which the Department received the waiver request.
    (c) No later than 90 days after the date of receipt of a written 
request under paragraph (a) of this section, the Department must approve 
or deny the request in writing. If the application for a waiver is 
denied, the Department must provide the Tribe with the reasons for the 
denial as part of the written response.
    (d) The Department will consider the following factors in making its 
decision on a waiver request:
    (1) Whether the waiver is contrary to Federal law;
    (2) The extent to which the waiver provides flexibility to 
facilitate the implementation of the Program at the Tribal level 
consistent with the principles of self-governance;
    (3) The extent to which the Tribe will benefit from the waiver; and
    (4) Whether the waiver is consistent with Federal transportation 
policy.
    (e) If the Department does not approve or deny a request submitted 
under paragraph (a) of this section on or before the last day of the 90-
day period, the request will be deemed approved by operation of law.
    (f) A decision by the Department on a waiver request is a final 
agency action subject to judicial review under the Administrative 
Procedure Act.



                          Subpart G_Withdrawal



Sec.  29.600  May a Tribe withdraw from a consortium?

    A Tribe may fully or partially withdraw from a consortium in 
accordance with any applicable terms and conditions of a consortium 
agreement with the Tribe. The withdrawing Tribe must provide written 
notification to the consortium and the Department of its decision to 
withdraw.



Sec.  29.601  When does a withdrawal from a consortium become effective?

    A withdrawal from a consortium becomes effective within the time 
frame specified in the resolution that authorizes the Tribe to withdraw 
from the consortium. In the absence of a specific time frame set forth 
in the resolution, such withdrawal becomes effective on:
    (a) The earlier of 1 year after the date of submission of such 
request, or the date on which the funding agreement expires; or
    (b) Such date as may be mutually agreed upon by the Department, the 
withdrawing Tribe, and the consortium that has executed the compact and 
funding agreement.



Sec.  29.602  How are funds redistributed when a Tribe fully or partially
withdraws from a compact and funding agreement administered by a consortium
serving more than one Tribe and elects to enter into a compact and 
funding agreement with the Department?

    A withdrawing Tribe that is eligible for the Program under 23 U.S.C. 
207(b) and Sec.  29.100 may negotiate and enter into a compact and 
funding agreement for its share of funds supporting those PSFAs that the 
Tribe will carry out. The share of funds is calculated on the same basis 
as the funds were initially allocated in the funding agreement of the 
consortium, unless otherwise agreed to by the consortium and the Tribe.

[[Page 372]]



Sec.  29.603  How are funds distributed when a Tribe fully or partially
withdraws from a compact and funding agreement administered by a consortium
serving more than one Tribe, and the withdrawing Tribe elects not to or is 
ineligible to enter into a compact and funding agreement?

    Unless otherwise agreed to by the consortium and the withdrawing 
Tribe, the consortium must return to the Department all funds not 
obligated and expended by the consortium associated with the withdrawing 
Tribe when the withdrawing Tribe elects not to or is ineligible to enter 
into a compact and funding agreement.



                         Subpart H_Retrocession



Sec.  29.700  May a Tribe retrocede a PSFA and the associated funds?

    A Tribe may voluntarily retrocede (fully or partially) its PSFA and 
the associated funds under a compact and funding agreement. A Tribe may 
retrocede for any reason.



Sec.  29.701  How does a Tribe notify the Department of its intention
to retrocede?

    (a) Notice to the Department. A Tribe must submit a written notice 
of its intent to retrocede to the Self-Governance Official to 
[email protected] or by any other method that provides receipt. The notice 
must specifically identify those PSFAs the Tribe intends to retrocede.
    (b) Notice to the Department of the Interior. The Department will 
send the Tribe's notice of its intention to retrocede to the Department 
of the Interior and request that the Department of the Interior 
determine whether the PSFA is associated with transportation services 
provided by the Department of the Interior.



Sec.  29.702  What happens if the Department of the Interior determines
that it provides the transportation services the Tribe intends to retrocede?

    If the Department of the Interior determines that it provides the 
transportation services the Tribe intends to retrocede, the Department 
will notify the Tribe. The Tribe must return all remaining funds, less 
closeout costs, associated with those transportation services to the 
Department for transfer to the Department of the Interior.



Sec.  29.703  What happens if the Department of the Interior determines
that it does not provide the transportation services the Tribe intends
to retrocede?

    If the Department of the Interior determines that it does not 
provide the transportation services the Tribe intends to retrocede, the 
Tribe may withdraw its notice to retrocede or return all remaining 
funds, less closeout costs, associated with the retroceded PSFA, and the 
Department will distribute those funds in accordance with applicable 
law.



Sec.  29.704  When is the retrocession effective?

    The retrocession is effective within the time frame specified in the 
funding agreement. In the absence of a specified date, the retrocession 
becomes effective:
    (a) On the earlier of 1 year after the date of the Tribe's 
submission of the request, or the date on which the funding agreement 
expires; or
    (b) Such date mutually agreed upon by the Departments and the 
retroceding Tribe when the Department of the Interior has agreed to 
assume a retroceded PSFA.



Sec.  29.705  What effect will a retrocession have on a Tribe's right
to compact under the Program?

    Provided that a Tribe is eligible under Sec.  29.100, retrocession 
will not adversely affect any future request by the Tribe to include 
funds from the same program in a compact or funding agreement.



Sec.  29.706  Will retrocession adversely affect future funding available
for the retroceded program?

    Retrocession will not adversely affect future funding for the 
retroceded program. Future funding will be available to the Tribe at the 
same level of funding as if there had been no retrocession.

[[Page 373]]



                 Subpart I_Termination and Reassumption



Sec.  29.800  When can the Department reassume a compact or funding
agreement?

    The Department may terminate and reassume a compact or funding 
agreement (or portion thereof) when the Department makes a specific 
finding, in writing, to a Tribe, that the Department has found that 
there is:
    (a) Imminent jeopardy to a trust asset, natural resources, or public 
health and safety that is caused by an act or omission of the Tribe and 
that arises out of a failure by the Tribe to carry out the compact or 
funding agreement; or
    (b) Gross mismanagement with respect to funds included in a funding 
agreement, as determined by the Department in consultation with the 
Office of the Inspector General, as appropriate. Gross mismanagement 
means a significant, clear, and convincing violation of compact, funding 
agreement, or regulatory or statutory requirements applicable to Federal 
funds included in a compact and funding agreement that results in a 
significant reduction of funds available for the PSFA carried out by the 
Tribe.



Sec.  29.801  Can the Department reassume a portion of a compact or
funding agreement and the associated funds?

    The Department may reassume a portion of a compact or funding 
agreement and the associated funds if the Department has sufficient 
grounds to do so. The Department must identify the narrowest portion of 
the compact or funding agreement for reassumption.



Sec.  29.802  What process must the Department follow before termination
of a compact or funding agreement (or portion thereof)?

    Except as provided in Sec.  29.805, prior to a termination becoming 
effective, the Department must:
    (a) Notify the Tribe in writing by any method that provides receipt 
of the findings required under Sec.  29.800;
    (b) Request specific corrective action within a reasonable period, 
no less than 45 days, to correct the conditions that may result in the 
Department's termination of a compact or funding agreement (or portion 
thereof);
    (c) To the extent feasible and if requested, provide technical 
assistance to assist the Tribe in overcoming the conditions that led to 
the findings described under paragraph (a) of this section. Technical 
assistance may take the form of feedback, review, and other assistance 
requested, as appropriate; and
    (d) Provide an opportunity for a hearing on the record in accordance 
with Subpart J of this part.



Sec.  29.803  What happens if the Department determines that the Tribe
has not corrected the conditions that the Department identified in the 
notice?

    (a) If the Department determines that the Tribe has not corrected 
the conditions that the Department identified in the notice, the 
Department must provide a second written notice by any method that 
provides receipt to the Tribe notifying it that the Department will 
terminate the compact or funding agreement, in whole or in part.
    (b) The second notice must include:
    (1) The effective date of the termination;
    (2) The details and facts supporting the termination; and
    (3) Instructions that explain the Tribe's right to a hearing 
pursuant to Sec.  29.925.



Sec.  29.804  When may the Department reassume?

    Except as provided in Sec.  29.805, the Department may not reassume 
until 30 days after receipt of the notice, the final resolution of the 
hearing, or the resolution of any appeals, whichever is latest, to 
provide the Tribe with an opportunity to take corrective action in 
response to any adverse final ruling.



Sec.  29.805  When can the Department immediately terminate a compact
or funding agreement (or portion thereof)?

    (a) The Department may immediately terminate a compact or funding 
agreement (or a portion thereof) if:

[[Page 374]]

    (1) The Department makes a finding of imminent substantial and 
irreparable jeopardy to a trust asset, natural resource, or public 
health and safety; and
    (2) The jeopardy arises out of a failure to carry out the compact or 
funding agreement.
    (b) The Department must provide notice of immediate termination by 
any method that provides receipt. The notice must set forth the findings 
that support the Department's determination, advise the Tribe whether it 
will be reimbursed for any closeout costs incurred after the 
termination, request the return of any property, and advise the Tribe of 
its right to a hearing pursuant to Sec.  29.925. Concurrently, the 
Department must notify the Office of Hearings that the Department 
intends to immediately terminate a compact or funding agreement. 
Pursuant to 23 U.S.C. 207(f)(2)(E) and Sec.  29.928, the Department has 
the burden of proof in any hearing or appeal of an immediate 
termination.



Sec.  29.806  Upon termination, what happens to the funds associated
with the terminated portions of the compact or funding agreement?

    Upon termination, the Department will reassume the remaining funds 
associated with the terminated portions of the compact or funding 
agreement. The Department may:
    (a) Transfer funds associated with transportation services provided 
by the Department of the Interior to the Department of the Interior; or
    (b) Distribute any funds not transmitted to the Department of the 
Interior in accordance with applicable law.



                Subpart J_Dispute Resolution and Appeals



Sec.  29.900  What is the purpose of this subpart?

    This subpart sets forth procedures that a Tribe may use to resolve 
disputes with the Department arising before or after the execution of a 
compact or funding agreement. It also sets forth the process for filing 
and processing administrative appeals under this part.



Sec.  29.901  Can the Department and a Tribe resolve disputes using 
alternative dispute resolution processes?

    At any time, the Department or a Tribe may request an informal 
process or an alternate dispute resolution procedure, such as mediation, 
conciliation, or arbitration, to resolve disputes. The goal of any such 
process (which may involve a third party) is to provide an inexpensive 
and expeditious mechanism to resolve disputes by mutual agreement 
instead of an administrative or judicial proceeding. The Department and 
the Tribe should resolve disputes at the lowest possible organizational 
level whenever possible.



Sec.  29.902  Does the Equal Access to Justice Act apply to the Program?

    The Equal Access to Justice Act (EAJA), 5 U.S.C. 504 and 28 U.S.C. 
2414, and the relevant implementing regulations (48 CFR 6101.30 and 
6101.31; 49 CFR part 6) will apply if the Tribe's compact or funding 
agreement make these provisions applicable.



Sec.  29.903  What determinations may not be appealed under this subpart?

    A Tribe may not appeal the following determinations under this 
subpart:
    (a) Waiver determination. A waiver determination made pursuant to 
Sec.  29.534 is a final agency action subject to judicial review under 
the Administrative Procedure Act.
    (b) Disputes or appeals arising under other Federal laws. Decisions 
made under other Federal statutes, such as the Freedom of Information 
Act and the Privacy Act. Such decisions may be appealable under those 
statutes and their implementing regulations.
    (c) Selection and award decisions for discretionary or competitive 
grants. The Department's selection and level of funding decisions for 
discretionary or competitive grants are not subject to appeal.

                           Pre-Award Decisions



Sec.  29.904  What are pre-award decisions that a Tribe may appeal?

    A Tribe may appeal pre-award decisions, which include:

[[Page 375]]

    (a) A decision whether to include a Department program in a funding 
agreement;
    (b) A decision whether an activity is an inherent Federal function;
    (c) A decision on a final offer before the Department and the Tribe 
enter into a compact or funding agreement;
    (d) A decision on a final offer before the Department and the Tribe 
execute an amendment modifying the terms of an existing compact or 
funding agreement; and
    (e) An eligibility determination.



Sec.  29.905  To whom does a Tribe appeal a pre-award decision?

    A Tribe appeals a pre-award decision in accordance with the process 
in Sec.  29.907 to a hearing official who was not involved in the 
initial decision and is appointed by the General Counsel of the 
Department.



Sec.  29.906  Must a Tribe exhaust its administrative remedies before
initiating a civil action against the Department in the U.S. District
Courts for a pre-award decision?

    A Tribe must exhaust its administrative remedies before initiating a 
civil action against the Department in the U.S. District Courts, except 
a Tribe may appeal the rejection of a final offer directly to the U.S. 
District Courts in lieu of an administrative appeal.



Sec.  29.907  When and how must a Tribe appeal a pre-award decision?

    (a) Unless a Tribe appeals, a pre-award decision becomes final 30 
days after receipt by the Tribe. To appeal the pre-award decision, a 
Tribe must submit a written request to the Office of the General Counsel 
and the Self-Governance Official within 30 days of receiving the pre-
award decision. The request must include a statement describing the 
reasons for appeal and any supporting documentation.
    (b) The Tribe may request to resolve the dispute using an 
alternative dispute resolution process before the hearing official 
issues a decision.



Sec.  29.908  May a Tribe request an extension of time to file an
administrative appeal?

    If a Tribe needs additional time, it may request an extension of 
time to file an appeal of a pre-award decision. Within 30 days of 
receiving a decision, a Tribe must request the extension from the Office 
of the General Counsel, which has the discretion to grant the extension, 
and notify the Self-Governance Official of the request. The request must 
be in writing and give a reason for not filing its administrative appeal 
within the 30-day period. The Department may accept an appeal after the 
30-day period for good cause.



Sec.  29.909  When and how must the hearing official respond to the
Tribe's appeal?

    (a) The hearing official must issue a decision in writing within 60 
days of the receipt of the appeal. If the Tribe requests an informal 
hearing, the hearing official must issue a decision within 60 days of 
the hearing.
    (b) All decisions issued by the hearing official must include a 
statement describing the rights of a Tribe to appeal the decision to the 
U.S. District Courts. The Department must provide the decision to the 
Tribe by any method that provides a receipt.



Sec.  29.910  What is the Department's burden of proof for appeals of
pre-award decisions?

    The Department must demonstrate by clear and convincing evidence the 
validity of a pre-award decision, and that the decision is consistent 
with 23 U.S.C. 207.



Sec.  29.911  What is the effect of a pending appeal on negotiations?

    A pending appeal of a pre-award decision will not prevent the 
Department from negotiating and executing the non-disputed, severable 
provisions of a compact or funding agreement or prevent the Department 
from awarding funds to the Tribe that may be included in a funding 
agreement.

[[Page 376]]

                           Post-Award Disputes



Sec.  29.912  What is a post-award dispute?

    A post-award dispute is a claim that arises under the Contract 
Disputes Act of 1978 (CDA), 41 U.S.C. 7101-7109. Such disputes arise 
once a compact or funding agreement is executed. Post-award disputes 
include:
    (a) Disputed interpretation of a provision of an executed compact or 
funding agreement;
    (b) Disallowance of costs under a funding agreement;
    (c) Suspension of payments under a funding agreement;
    (d) Allocation, distribution, or reduction of funds when a dispute 
arises between a consortium and a withdrawing Tribe;
    (e) Failure to comply with the terms of a funding agreement; and
    (f) Any other claim arising out of a compact or funding agreement.



Sec.  29.913  What is a claim under the Contract Disputes Act?

    A Contract Disputes Act claim is a written demand filed by a Tribe 
that seeks one or more of the following:
    (a) Payment of a specific sum of money under the funding agreement;
    (b) Adjustment or interpretation of terms in a funding agreement;
    (c) Payment that is disputed as to liability or amount;
    (d) Payment that the Department has not acted upon in a reasonable 
time following a demand for payment; or
    (e) Any other claim relating to the terms of the compact or funding 
agreement.



Sec.  29.914  How does a Tribe file a Contract Disputes Act claim?

    A Tribe must submit its claim in writing to the Self-Governance 
Official, who serves as the Department's awarding official for the 
purposes of Contract Disputes Act claims. The Self-Governance Official 
will document the receipt of the claim.



Sec.  29.915  Must a Tribe certify a Contract Disputes Act claim?

    A Tribe must certify a claim for more than $100,000 in accordance 
with the Contract Disputes Act. The Tribe must certify that:
    (a) The claim is made in good faith;
    (b) Documents or data supporting the claim are accurate and complete 
to the best of the Tribe's knowledge and belief;
    (c) The amount claimed accurately reflects the amount the Tribe 
believes is owed; and
    (d) The individual making the certification is authorized to make 
the claim on behalf of the Tribe and bind the Tribe with respect to the 
claim.



Sec.  29.916  Who bears the burden of proof in a Contract Disputes Act
claim?

    The Tribe bears the burden of proof to demonstrate, by a 
preponderance of the evidence, the validity of a Contract Disputes Act 
claim.



Sec.  29.917  What is the Department's role in processing a Contract
Disputes Act claim?

    (a) The Department must document the date that the Self-Governance 
Official received the claim.
    (b) The Self-Governance Official must provide the Tribe with an 
opportunity to resolve the claim informally with assistance from 
Department officials who have not substantially participated in the 
disputed matter. Such informal mechanisms may include participating in 
dispute resolution pursuant to Sec.  29.901.
    (c) If the Department and the Tribe do not agree on a settlement, 
the Self-Governance Official must issue a written decision on the claim 
by any method that provides a receipt.



Sec.  29.918  What information must the Self-Governance Official's
decision contain?

    (a) The Self-Governance Official's decision must:
    (1) Describe the claim or dispute;
    (2) Reference the relevant terms of the compact or funding 
agreement;
    (3) Set forth the factual areas of agreement and disagreement; and
    (4) Set forth the Self-Governance Official's decision, and provide 
the facts and reasons that support the decision.
    (b) The Self-Governance Official must provide the decision to the 
Tribe and describe the Tribe's appeal rights in language similar to the 
following:

[[Page 377]]

    This is a final decision. You may appeal this decision to the 
Civilian Board of Contract Appeals (CBCA), 1800 F Street NW, Washington, 
DC 20245. If you decide to appeal, you must provide written notice 
within 90 days of receipt of this decision to the CBCA and provide a 
copy to the Self-Governance Official. The notice must indicate that an 
appeal is intended, and refer to the decision and contract number. 
Instead of appealing to the CBCA, you may bring an action in the U.S. 
Court of Federal Claims or U.S. District Courts within 12 months of the 
date you receive this notice. If you do not appeal a decision within one 
of these time periods, it is not subject to further review.



Sec.  29.919  When must the Self-Governance Official issue a written
decision on the claim?

    (a) If the claim is for less than $100,000, the Tribe may request 
that the Self-Governance Official issue a decision within 60 days of the 
date of receipt of the claim. If the Tribe does not request that the 
Self-Governance Official issue a decision within 60 days of the date of 
receipt of the claim, the Self-Governance Official must issue a decision 
within a reasonable time, which will depend on the size and complexity 
of the claim and the adequacy of the information provided in support of 
the claim. The Tribe must request a decision by the Self-Governance 
Official before seeking an appeal in accordance with paragraph (c) of 
this section.
    (b) If the claim is for more than $100,000, the Self-Governance 
Official must issue a decision within 60 days of the date of receipt of 
the claim or notify the Tribe of the time within which the Self-
Governance Official will issue a decision. Such time frame must be 
reasonable, which will depend on the size and complexity of the claim 
and the adequacy of the information provided in support of the claim.
    (c) If the Self-Governance Official does not issue a decision within 
these time frames, a Tribe may treat the delay as a denial of its claim 
and appeal the decision in accordance with Sec.  29.921.



Sec.  29.920  Is a decision of the Self-Governance Official final?

    (a) A decision of the Self-Governance Official is final and 
conclusive, and not subject to review, unless the Tribe timely commences 
an appeal or suit pursuant to the Contract Disputes Act.
    (b) Once the Self-Governance Official issues a decision, the 
decision may not be changed except by agreement of the Department and 
the Tribe or under the following limited circumstances:
    (1) Evidence is discovered that could not have been discovered 
through due diligence before the Self-Governance Official issued the 
decision;
    (2) The Self-Governance Official learns that there has been fraud, 
misrepresentation, or other misconduct by a party;
    (3) The decision is beyond the scope of the Self-Governance 
Official's authority;
    (4) The claim has been satisfied, released, or discharged; or
    (5) Any other reason justifying relief from the decision.
    (c) If the Self-Governance Official withdraws a decision and issues 
a new decision, the Tribe may appeal the new decision in accordance with 
Sec.  29.921. If the Self-Governance Official does not issue a new 
decision, the Tribe may proceed under Sec.  29.919(c).
    (d) If a Tribe files an appeal or suit, the Self-Governance Official 
may modify or withdraw the final decision before a decision is issued in 
the pending appeal.



Sec.  29.921  Where may the Tribe appeal the Self-Governance Official's 
decision on a Contract Disputes Act claim?

    The Tribe may appeal the Self-Governance Official's decision on a 
Contract Disputes Act claim in one of the following forums:
    (a) The Civilian Board of Contract Appeals. The appeal must be in 
accordance with the Board's implementing regulations in 48 CFR part 
6101;
    (b) The U.S. Court of Federal Claims; or
    (c) The U.S. District Courts.

[[Page 378]]



Sec.  29.922  May a party appeal a Civilian Board of Contract Appeals
decision?

    A party may appeal a decision of the Civilian Board of Contract 
Appeals within 120 days to the U.S. Court of Appeals for the Federal 
Circuit.



Sec.  29.923  What is the effect of a pending appeal?

    (a) The Tribe must continue performance in accordance with the 
compact and funding agreement during the appeal of any claims to the 
same extent the Tribe would have performed had there been no dispute.
    (b) A pending dispute will not affect or prevent the negotiation or 
award of any subsequent compact or funding agreement between the 
Department and the Tribe.

                           Termination Appeals



Sec.  29.924  May a Tribe appeal the Department's decision to terminate 
a compact or funding agreement?

    A Tribe may appeal the Department's decision to terminate a compact 
or funding agreement to the Department's Office of Hearings.



Sec.  29.925  Is a Tribe entitled to a hearing on the record?

    (a) The Department must provide a Tribe with a hearing on the record 
for a non-immediate termination prior to or in lieu of the corrective 
action period set forth in the termination notice as described in Sec.  
29.802.
    (b) The Department must provide a Tribe with a hearing on the record 
for an immediate termination. The Department and the Tribe will work 
together to determine a mutually acceptable time and place for the 
hearing. The hearing on the record must commence no later than 10 days 
after the date of such termination or a later date upon mutual 
agreement. If feasible, the hearing may occur virtually or 
telephonically. If requested by the Tribe, the Department may arrange 
for an in-person hearing.
    (c) A Tribe may decline a hearing in writing.



Sec.  29.926  What rights do the Department and a Tribe have in an
appeal of a termination decision?

    (a) During the appeal of a termination decision, the Department and 
a Tribe have the right to:
    (1) A designated representative;
    (2) Present the testimony of witnesses, orally or in writing, who 
have knowledge of the relevant issues;
    (3) Cross-examine witnesses;
    (4) Introduce oral or documentary evidence, or both;
    (5) Receive, upon request and payment of reasonable costs, a copy of 
the transcript of the hearing, and copies of all documentary evidence 
that is introduced at the hearing;
    (6) Take depositions, request the production of documents, serve 
interrogatories on other parties, and request admissions; and
    (7) Any other procedural rights established under the Administrative 
Procedure Act.
    (b) An administrative law judge assigned by the chief administrative 
law judge of the Department's Office of Hearings must conduct hearings 
on the record for a termination decision unless the Tribe waives the 
hearing.



Sec.  29.927  What notice and service must the Department and the
Tribe provide?

    (a) The Department and the Tribe must file each document with U.S. 
Department of Transportation, Docket Operations, M-30, West Building 
Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 
20590.
    (b) The Department and the Tribe must serve copies of each document 
with:
    (1) The Self-Governance Official; and
    (2) The authorized Tribal representative.



Sec.  29.928  What is the Department's burden of proof for a termination 
decision?

    The Department must demonstrate by clear and convincing evidence the 
validity of the grounds for the termination.

[[Page 379]]



Sec.  29.929  How will the Department communicate its decision following
a hearing on a termination decision?

    After the hearing or any post-hearing briefing schedule established 
by the Department's Office of Hearings, the administrative law judge 
must send the Department and the Tribe the decision by any method that 
provides a receipt. The decision must contain the administrative law 
judge's findings of fact and conclusions of law on all the issues.



Sec.  29.930  May the Department or the Tribe appeal the decision of
an administrative law judge?

    (a) The decision of an administrative law judge is a recommended 
decision that the Department or the Tribe may appeal to the Secretary.
    (b) The decision of an administrative law judge becomes the final 
decision of the Secretary 60 days after it is served on the Department 
and the Tribe unless a petition for review is filed in accordance with 
Sec.  29.931. The decision of the Secretary is a final agency action 
that the Tribe may appeal to the U.S. District Courts.



Sec.  29.931  How can the Department or the Tribe obtain review of the
recommended decision of an administrative law judge?

    (a) Time for filing. Within 30 days after service of any recommended 
decision of an administrative law judge, the Department or the Tribe may 
file a petition for review of the recommended decision with the 
Secretary. A copy must be served on the opposing party.
    (b) Service. Each document filed with or by the Secretary must be 
accompanied by a certificate of service specifying the manner in which 
and the date on which service was made with the Secretary and the 
opposing party.
    (c) Form and content of objections. The petition for review must set 
out separately and in detail each objection to the recommended decision, 
and the basis and reasons supporting such objection. The petition for 
review must state whether such objections are related to alleged errors 
of law or fact. The petition for review must also identify the relief 
requested.
    (d) Introduction of new information on review. If the Department or 
the Tribe fail to object to any errors in the recommended decision, the 
party waives the right to allege such error in subsequent proceedings. 
The petition for review may not set forth for the first time on brief to 
the Secretary any matters of law or fact that were not argued before the 
administrative law judge.
    (e) Reply briefs. An opposing party has 30 days from the date of 
service of the petition for review to file its reply brief.
    (f) Failure to file timely and adequate objections. Late filed 
petitions for review are not permitted, and incomplete objections will 
not be reviewed.



Sec.  29.932  May a Tribe appeal the decision of the Secretary?

    The decision of the Secretary on the merits of a petition for review 
constitutes final agency action. A Tribe may appeal the decision to the 
U.S. District Courts.



Sec.  29.933  What is the effect of an appeal on negotiations?

    A pending appeal of a termination decision will not affect or 
prevent the award of another funding agreement or TTP Agreement.

However, if the Department terminates all or a portion of a compact or 
funding agreement due to a finding of gross mismanagement or imminent 
jeopardy that is sustained on appeal, and the Tribe has not corrected 
the adverse findings, the Department has discretion to reject a proposal 
to award the Tribe a new funding agreement or provide new funds in an 
existing funding agreement.



PART 30_DENIAL OF PUBLIC WORKS CONTRACTS TO SUPPLIERS OF GOODS AND 
SERVICES OF COUNTRIES THAT DENY PROCUREMENT MARKET ACCESS TO U.S.
CONTRACTORS--Table of Contents



Sec.
30.1 Purpose.
30.3 Applicability.
30.5 Effective dates.
30.7 Definitions.
30.9 Citizenship: Direct or indirect control.
30.11 Use of solicitation provisions and contract clauses.

[[Page 380]]

30.13 Restrictions on Federal public works projects: Certification.
30.15 Restrictions on Federal public works projects.
30.17 Waivers.
30.19 Buy American Act.

    Authority: 49 U.S.C. 322(a); Containing Resolution on the Fiscal 
Year 1988 Budget 109(a), Pub. L. 100-202; Airport and Airways Safety and 
Capacity Expansion Act of 1987, 115, Pub. L. 100-223.

    Source: 53 FR 19916, June 1, 1988, unless otherwise noted.



Sec.  30.1  Purpose.

    The rules in this part implement section 109(a) of the Continuing 
Resolution on the Fiscal Year 1988 Budget, Public Law No. 100-202 
(signed December 22, 1987) [the Continuing Resolution], and section 115 
of the Airport and Airways Safety and Capacity Expansion Act of 1987, 
Public Law No. 100-223 (signed December 30, 1987) [the Airport Safety 
Act]. These rules are intended to give uniform implementation to these 
statutes throughout DOT procurement and grant programs.



Sec.  30.3  Applicability.

    (a) The restrictions imposed by section 109(a) of the Continuing 
Resolution extend to all DOT agencies as well as all recipients of DOT 
funds. The restrictions apply to all projects for which funds are 
obligated or contracts or subcontracts are awarded during fiscal year 
1988, including projects and contracts under all DOT financial 
assistance programs. The prohibition applies to public buildings and 
public works projects everywhere in the United States or any territory 
or possession of the United States. U.S. overseas bases, installations, 
and embassies are not subject to this part.
    (b) The restrictions imposed by section 115 of the Airport Safety 
Act extend to all projects for which funds are made available by that 
Act, whether or not the contracts are awarded during fiscal year 1988. 
The restrictions apply to all contracts entered into under grants 
authorized by the Airport Safety Act.
    (c) This part applies to projects covered by section 109(a) of the 
Continuing Resolution, section 115 of the Airport Safety Act, or both. 
Whether one or the other statute or both apply, the effect on the 
project shall be the same, subject to paragraph (e) of this section.
    (d) In addition to construction, alteration, and repair contracts, 
the restrictions of this part cover all architect, engineering, and 
other services related to the preparation and performance of 
construction, alteration, and repair of public projects and public 
works.
    (e) The restrictions of this part also apply to all products used in 
the construction, alteration, or repair of public projects and public 
works; Provided, however, That
    (1) The restrictions of this part do not apply to construction 
equipment or vehicles that do not become part of a delivered structure, 
product, or project and
    (2) Notwithstanding paragraph (c) of this section, the restrictions 
of section 109(a) of the Continuing Resolution do not apply to vehicles 
to be used by the project, including, but not limited to, buses, trucks, 
automobiles, rail rolling stock, and aircraft.



Sec.  30.5  Effective dates.

    The provisions of section 109(a) of the Continuing Resolution apply 
to contracts (or new subcontracts under existing contracts, whether or 
not subject to the restriction) entered into after December 22, 1987, 
its date of enactment, and before October 1, 1988. The provisions of 
section 115 of the Airport Safety Act apply to contracts funded by the 
Act and entered into after December 30, 1987, its date of enactment; the 
restrictions remain effective so long as money provided by the Airport 
Safety Act is used. Accordingly, any contracts or subcontracts subject 
to the restrictions of this part entered into with contractors or 
subcontractors owned or controlled by citizens of subject countries, as 
defined by Sec. Sec.  30.7 and 30.9 of this part, since December 22, 
1987 shall be canceled at no cost to the Government, subject to the 
waiver provisions of Sec.  30.17 of this part. All public works or 
public buildings contracts entered into after December 22, 1987, shall 
include, or be modified to include, a provision prohibiting 
subcontracting with citizens of subject countries, as defined by 
Sec. Sec.  30.7 and 30.9 of this part.

[[Page 381]]



Sec.  30.7  Definitions.

    (a) Funds appropriated for FY 1988 by this resolution or any other 
law, as used in this part with reference to section 109(a) of the 
Continuing Resolution, means all appropriated and trust funds available 
to DOT, its modal administration, or their grantees for expenditure or 
obligation in fiscal year 1988, regardless of the fiscal year in which 
the funds were appropriated.
    (b) Funds made available by this Act, as used in this part with 
reference to section 115(a) of the Airport Safety Act, means all funds, 
including trust funds, made available to DOT, its modal administrations, 
or their grantees by that Act, whether or not the contracts to be funded 
are awarded during fiscal year 1988.
    (c) Contractor and subcontractor means any person, other than a 
supplier of products, performing any architectural, engineering, or 
other service directly related to the preparation for or performance of 
the construction, alteration, or repair of any public building or public 
work in the United States or any territory or possession of the United 
States.
    (d) Contractor or subcontractor of a foreign country means any 
contractor or subcontractor that is a citizen or national of a foreign 
country, or is controlled directly or indirectly by one or more citizens 
or nationals of a foreign country.
    (e) Service of a foreign country means any service provided by a 
person that is a citizen or national of a foreign country, or is 
controlled by one or more citizens or nationals of a foreign country.
    (f) Product of a foreign country means construction materials, i.e., 
articles, materials, and supplies brought to the construction site for 
incorporation into the public works project. A product is considered to 
have been produced in a foreign country if more than fifty percent of 
the total cost of the product is allocable to production or manufacture 
in the foreign country.
    (g) Foreign country means a country included in the list of 
countries that discriminate against U.S. firms published by the U.S.T.R.



Sec.  30.9  Citizenship: Direct or indirect control.

    A contractor, subcontractor, or person providing a service shall be 
considered to be a citizen or national of a foreign country, or 
controlled directly or indirectly by citizens or nationals of a foreign 
country, within the meaning of this part.
    (a) If 50 percent or more of the contractor or subcontractor is 
owned by one or more citizens or nationals of the foreign country;
    (b) If the title to 50 percent or more of the stock of the 
contractor or subcontractor is held subject to trust or fiduciary 
obligation in favor of one or more citizens or nationals of the foreign 
country;
    (c) If 50 percent or more of the voting power in the contractor or 
subcontractor is vested in or exercisable on behalf of one or more 
citizens or nationals of the foreign country;
    (d) In the case of a partnership, if any general partner is a 
citizen or national of the foreign country;
    (e) In the case of a corporation, if the number of its directors 
necessary to constitute a quorum are citizens of the foreign country or 
the corporation is organized under the laws of the foreign country or 
any subdivision, territory, or possession thereof; or
    (f) In the case of a contractor or subcontractor that is a joint 
venture, if any participant meets any of the criteria in paragraphs (a) 
through (e) of this section.



Sec.  30.11  Use of solicitation provisions and contract clauses.

    (a) Unless the President or the Secretary waives the restrictions 
imposed by section 109(a) of the Continuing Resolution in accordance 
with Sec.  30.17 of this part, the contracting officer shall insert a 
clause similar to the clause at Sec.  30.15, Restrictions on Federal 
Public Works Projects, in contractions and solicitations, if--
    (1) The contract is awarded on or after December 22, 1987, and 
before October 1, 1988; and
    (2) The contract obligates funds appropriated for use in FY 1988 by 
the Continuing Resolution or any other law; and

[[Page 382]]

    (3) The contract is for the acquisition of construction, alteration 
and repair, architectural, engineering, or other services directly 
related to the preparation for, or performance of, construction, 
alteration, and repair for Federal public works projects inside the 
United States, U.S. territories, or U.S. possessions.
    (b) Unless the Secretary waives the restrictions imposed by section 
115 of the Airport Safety Act in accordance with Sec.  30.17 of this 
part, the contracting officer shall insert a clause similar to the 
clause at Sec.  30.15, Restrictions on Federal Public Works Projects, in 
contracts and solicitations relating to any project for which funds, 
including grant funds, are made available by that Act, whether or not 
the contract is awarded during fiscal year 1988.
    (c) Any contract already awarded that should have contained the 
clause prescribed in paragraph (a) or (b) of this section, but did not, 
shall be modified to include the clause. In the event that the 
contracting officer is unable to modify such contract, the contract 
shall be canceled at no cost to the Government, unless a waiver is 
granted in accordance with Sec.  30.17 of this part.
    (d) Contracting officers shall insert a provision similar to the 
solicitation provision at Sec.  30.13 of this part, Restrictions on 
Public Works Projects--Certification, in solicitations containing the 
clause at Sec.  30.15 of this part, Restrictions on Federal Public Works 
Projects.
    (e) Any solicitation issued before December 22, 1987, that will 
result in the award of a contract covered by paragraph (a) of this 
section after December 22, 1987, and before October 1, 1988, and that 
should have contained a provision similar to that Sec.  30.13 of this 
part, but did not, shall be amended to include the provision if the 
contract has not yet been awarded.



Sec.  30.13  Restrictions on Federal public works projects: Certification.

    As prescribed in Sec.  30.11(c) of this part, the contracting 
officer shall insert the following provision in solicitations containing 
the clause at Sec.  30.15, Restrictions on Federal Public Works 
Projects:

      Restrictions on Federal Public Works Projects--Certification

    (a) Definitions. The definitions pertaining to this provision are 
those that are set forth in 49 CFR 30.7-30.9.
    (b) Certification. By signing this solicitation, the Offeror 
certifies that with respect to this solicitation, and any resultant 
contract, the Offeror--
    (1) Is [ ] is not [ ] a contractor of a foreign country included on 
the list of countries that discriminated against U.S. firms published by 
the Office of the United States Trade Representative (U.S.T.R.);
    (2) Has [ ] has not [ ] entered into any contract or subcontract 
with a subcontractor of a foreign country included on the list of 
countries that discriminate against U.S. firms published by the 
U.S.T.R.; and
    (3) Has [ ] has not [ ] entered into any subcontract for any product 
to be used on the Federal public works project that is produced in a 
foreign country included on the list of countries that discriminate 
against U.S. firms published by the U.S.T.R.
    (c) Applicability of 18 U.S.C. 1001. This certification in this 
solicitation provision concerns a matter within the jurisdiction of an 
agency of the United States and the making of a false, fictitious, or 
fraudulent certification may render the maker subject to prosecution 
under Title 18, United States Code, Section 1001.
    (d) Notice. The Offeror shall provide immediate written notice to 
the Contracting Officer if, at any time prior to contract award, the 
Offeror learns that its certification was erroneous when submitted or 
has become erroneous by reason of changed circumstances.
    (e) Restrictions on contract award. No contract will be awarded to 
an offeror (1) who is owned or controlled by one or more citizens or 
nationals of a foreign country included on the list of countries that 
discriminate against U.S. firms published by the U.S.T.R. or (2) whose 
subcontractors are owned or controlled by one or more citizens or 
nationals of a foreign country on such U.S.T.R. list or (3) who 
incorporates in the public works project any product of a foreign 
country on such U.S.T.R. list; unless a waiver to these restrictions is 
granted by the President of the United States or the Secretary of 
Transportation. (Notice of the granting of a waiver will be published in 
the Federal Register.)
    (f) System. Nothing contained in the foregoing shall be construed to 
require establishment of a system of records in order to render, in good 
faith, the certification required by paragraph (b) of this provision. 
The knowledge and information of an Offeror is not required to exceed 
that which is normally possessed by a prudent person in the ordinary 
course of business dealings.

[[Page 383]]

    (g) Subcontracts. The Offeror agrees that, if awarded a contract 
resulting from this solicitation, it will incorporate this solicitation 
provision, including this paragraph (g), in each solicitation issued 
under such contract.

                           (End of provision)



Sec.  30.15  Restrictions on Federal public works projects.

    The contracting officer shall insert the following clause in 
solicitations and contracts as prescribed at Sec.  30.11(a) through (b) 
of this part:

              Restrictions on Federal Public Works Projects

    (a) Definitions. The definitions pertaining to this clause are those 
that are set forth in 49 CFR 30.7-30.9
    (b) General. This clause implements the procurement provisions 
contained in the Continuing Resolution on the Fiscal Year 1988 Budget, 
Public Law No. 100-202, and the Airport and Airway Safety and Capacity 
Expansion Act of 1987, Public Law No. 100-223.
    (c) Restrictions. The Contractor shall not knowingly enter into any 
subcontract under this contract: (1) With a subcontractor of a foreign 
country included on the list of countries that discriminate against U.S. 
firms published by the United States Trade Representative (U.S.T.R.); or 
(2) for the supply of any product for use on the Federal Public works 
project under this contract that is produced or manufactured in a 
foreign country included on the list of countries that discriminate 
against U.S. firms published by the U.S.T.R.
    (d) Certification. The Contractor may rely upon the certification of 
a prospective subcontractor that it is not a subcontractor of a foreign 
country included on the list of countries that discriminates against 
U.S. firms published by the U.S.T.R. and that products supplied by such 
subcontractor for use on the Federal public works project under this 
contract are not products of a foreign country included on the list of 
countries that discriminate against U.S. firms published by the 
U.S.T.R., unless the contractor has knowledge that the certification is 
erroneous.
    (e) Erroneous certification. The certification in paragraph (b) of 
the provision entitled ``Restriction on Federal Public Works Projects--
Certification,'' is a material representation of fact upon which 
reliance was placed when making the award. If it is later determined 
that the Contractor knowingly rendered an erroneous certification, in 
addition to other remedies available to the Government, the Contracting 
Officer may cancel this contract for default at no cost to the 
Government.
    (f) Cancellation. Unless the restrictions of this clause are waived 
as provided in paragraph (e) of the provision entitled ``Restriction on 
Federal Public Works Projects--Certification,'' if the Contractor 
knowingly enters into a subcontract with a subcontractor that is a 
subcontractor of a foreign country included on the list of countries 
that discriminate against U.S. firms published by the U.S.T.R. or that 
supplies any product for use on the Federal public works project under 
this contract of a foreign country included on the list of countries 
that discriminate against U.S. firms published by the U.S.T.R., the 
Contracting Officer may cancel this contract for default, at no cost to 
the Government.
    (g) Subcontracts. The Contractor shall incorporate this clause, 
without modification, including this paragraph (g) in all solicitations 
and subcontracts under this contract:

 Certification Regarding Restrictions on Federal Public Works Projects--
                             Subcontractors

    (1) The Offeror/Contractor, by submission of an offer and/or 
execution of a contract certifies that the Offeror/Contractor is (i) not 
an Offeror/Contractor owned or controlled by one or more citizens or 
nationals of a foreign country included on the list of countries that 
discriminate against U.S. firms published by the United States Trade 
Representative (U.S.T.R.) or (2) not supplying any product for use on 
the Federal public works project that is produced or manufactured in a 
foreign country included on the list of foreign countries that 
discriminate against U.S. firms published by the U.S.T.R.

   THIS CERTIFICATION CONCERNS A MATTER WITHIN THE JURISDICTION OF AN 
  AGENCY OF THE UNITED STATES AND THE MAKING OF A FALSE FICTITIOUS, OR 
  FRAUDULENT CERTIFICATION MAY RENDER THE MAKER SUBJECT TO PROSECUTION 
            UNDER TITLE 18, UNITED STATES CODE, SECTION 1001

    (2) The Offeror shall provide immediate written notice to the 
Contractor if, at any time, the Offeror learns that its certification 
was erroneous by reason of changed circumstances.
    (3) The Contractor shall not knowingly enter into any subcontract 
under this contract: (i) with a subcontractor of a foreign country 
included on the list of countries that discriminate against U.S. firms 
published by the U.S.T.R.; or (ii) for the supply of any product for use 
on the Federal public works project under this contract that is

[[Page 384]]

produced or manufactured in a foreign country included on the list of 
countries that discriminate against U.S. firms published by the U.S.T.R. 
The contractor may rely upon the certification in paragraph (g)(1) of 
this clause unless it has knowledge that the certification is erroneous.
    (4) Unless the restrictions of this clause have been waived under 
the contract for the Federal public works project, if a contractor 
knowingly enters into a subcontract with a subcontractor that is a 
subcontractor of a foreign country included on the list of countries 
that discriminate against U.S. firms published by the U.S.T.R. or that 
supplies any product for use on the Federal public works project under 
this contract that is produced or manufactured in a foreign country 
included on the list of countries that discriminate against U.S. firms 
published by the U.S.T.R., the Government Contracting Officer may 
direct, through higher-tier contractors, cancellation of this contract 
at no cost to the Government.
    (5) Definitions. The definitions pertaining to this clause are those 
that are set forth in 49 CFR 30.7-30.9.
    (6) The certification in paragraph (g)(1) of this clause is a 
material representation of fact upon which reliance was placed when 
making the award. If it is later determined that the Contractor 
knowingly rendered an erroneous certification, in addition to other 
remedies available to the Government, the Government Contracting Officer 
may direct, through higher-tier Contractors, cancellation of this 
subcontract at no cost to the Government.
    (7) The Contractor agrees to insert this clause, without 
modification, including this paragraph, in all solicitations and 
subcontracts under this clause.

                             (End of clause)



Sec.  30.17  Waivers.

    (a) The Secretary may waive the restrictions imposed by section 115 
of the Airport Safety Act on the use of a product or service in a 
project if the Secretary determines that:
    (1) Application of the restriction to such product, service, or 
project would not be in the public interest;
    (2) Products or services of the same class or kind are not produced 
or offered in the United States, or in any foreign country that is not 
listed by the U.S.T.R. in sufficient and reasonable available quantities 
and of a satisfactory quality; or
    (3) Exclusion of such product or service from the project would 
increase the cost of the overall project contract by more than 20 
percent.
    (b) The President or the Secretary may waive the restrictions 
imposed by section 109(a) of the Continuing Resolution with respect to 
an individual contract if the President or the Secretary determines that 
such action is necessary in the public interest, on a contract-by-
contract basis. The Secretary may apply the factors listed in paragraphs 
(a)(2) and (a)(3) of this section in determining whether a waiver is in 
the public interest.
    (c) The authority of the President or the Secretary to issue waivers 
may not be delegated. The Department shall publish notice of any waiver 
granted pursuant to this part by the President or the Secretary in the 
Federal Register within ten days. The notice shall describe in detail 
the contract involved, the specific reasons for granting the waiver, and 
how the waiver meets the criteria of this section.



Sec.  30.19  Buy American Act.

    The restrictions of this part are in addition to any other 
restrictions contained in Federal law, including the Buy American Act, 
41 U.S.C. 10a-10d, and Buy American provisions in legislation governing 
DOT provisions. Normal evaluation methods for implementing the 
provisions of the Buy American Act in contracts for the construction, 
alteration, or repair of public buildings or public works will be 
applied after determining the offeror's eligible for award on the basis 
of application of the provisions in this part.



PART 31_PROGRAM FRAUD CIVIL REMEDIES--Table of Contents



Sec.
31.1 Basis and purpose.
31.2 Definitions.
31.3 Basis for civil penalties and assessments.
31.4 Investigation.
31.5 Review by the reviewing official.
31.6 Prerequisites for issuing a complaint.
31.7 Complaint.
31.8 Service of complaint.
31.9 Answer.
31.10 Default upon failure to answer.
31.11 Referral of complaint and answer to the ALJ.
31.12 Notice of hearing.
31.13 Parties to the hearing.

[[Page 385]]

31.14 Separation of functions.
31.15 Ex parte contacts.
31.16 Disqualification of reviewing official or ALJ.
31.17 Rights of parties.
31.18 Authority of the ALJ.
31.19 Prehearing conferences.
31.20 Disclosure of documents.
31.21 Discovery.
31.22 Exchange of witness lists, statements, and exhibits.
31.23 Subpoenas for attendance at hearing.
31.24 Protective order.
31.25 Fees.
31.26 Filing, form, and service of papers.
31.27 Computation of time.
31.28 Motions.
31.29 Sanctions.
31.30 The hearing and burden of proof.
31.31 Determining the amount of penalties and assessments.
31.32 Location of hearing.
31.33 Witnesses.
31.34 Evidence.
31.35 The record.
31.36 Post-hearing briefs.
31.37 Initial decision.
31.38 Reconsideration of initial decision.
31.39 Appeal to authority head.
31.40 Stays ordered by the Department of Justice.
31.41 Stay pending appeal.
31.42 Judicial review.
31.43 Collection of civil penalties and assessments.
31.44 Right to administrative offset.
31.45 Deposit in Treasury of United States.
31.46 Compromise or settlement.
31.47 Limitations.

    Authority: 31 U.S.C. 3801-3812.

    Source: 53 FR 881, Jan. 14, 1988, unless otherwise noted.



Sec.  31.1  Basis and purpose.

    (a) Basis. This part implements the Program Fraud Civil Remedies Act 
of 1986, Public Law No. 99-509, sections 6101-6104, 100 Stat. 1874 
(October 21, 1986), to be codified at 31 U.S.C. 3801-3812. 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 the authority 
or to certain others, and (2) specifies the hearing and appeal rights of 
persons subject to allegations of liability for such penalties and 
assessments.



Sec.  31.2  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 Transportation.
    Authority head means the Assistant Secretary or Deputy Assistant 
Secretary for Budget and Programs, Department of Transportation.
    Benefit means, in the context of ``statement,'' anything of value, 
including but not limited to any advantage, preference, privilege, 
license, permit, favorable decision, ruling, status, or loan guarantee.
    Claim means any request, demand, or submission--
    (a) Made to 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 defendant under Sec.  31.7.
    Defendant means any person alleged in a complaint under Sec.  31.7 
to be liable

[[Page 386]]

for a civil penalty or assessment under Sec.  31.3.
    Government means the United States Government.
    Individual means a natural person.
    Initial decision means the written decision of the ALJ required by 
Sec. Sec.  31.10 or 31.37 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 Transportation or an officer or employee of the Office of Inspector 
General designated by the Inspector General and serving in a position 
for which the rate of basic pay is not less than the minimum rate of 
basic pay for grade GS-16 under the General Schedule.
    Knows or has reason to know, means that a person, with respect to a 
claim or statement--
    (a) Has actual knowledge that the claim or statement is false, 
fictitious, or fraudulent;
    (b) Acts in deliberate ignorance of the truth or falsity of the 
claim or statement; or
    (c) Acts in reckless disregard of the truth or falsity of the claim 
or statement.
    Makes, wherever it appears, shall include the terms presents, 
submits, and causes to be made, presented, or submitted. As the context 
requires, making or made, shall likewise include the corresponding forms 
of such terms.
    Person means any individual, partnership, corporation, association, 
or private organization, and includes the plural of that term.
    Representative means an attorney who is a member in good standing of 
the bar of any State, Territory, or possession of the United States or 
of the District of Columbia or the Commonwealth of Puerto Rico. This 
definition is not intended to foreclose pro se appearances. An 
individual may appear for himself or herself, and a corporation or other 
entity may appear by an owner, officer, or employee of the corporation 
or entity.
    Reviewing official means the Deputy General Counsel of the 
Department of Transportation, or other officer or employee of the 
Department who is designated by the Deputy General Counsel and eligible 
under 31 U.S.C. 3801(a)(8).
    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 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.



Sec.  31.3  Basis for civil penalties and assessments.

    (a) Claims. (1) Except as provided in paragraph (c) of this section, 
any person who makes a claim that the person knows or has reason to 
know--
    (i) Is false, fictitious, or fraudulent;
    (ii) Includes or is supported by any written statement which asserts 
a material fact which is false, fictitious, or fraudulent;
    (iii) Includes or is supported by any written statement that--
    (A) Omits a material fact;
    (B) Is false, fictitious, or fraudulent as a result of such 
omission; and
    (C) Is a statement in which the person making such statement has a 
duty to include such material fact; or
    (iv) Is for payment for the provision of property or services which 
the person has not provided as claimed, shall be subject, in addition to 
any other remedy that may be prescribed by law, to a civil penalty of 
not more than $5,500 for each such claim. \1\
---------------------------------------------------------------------------

    \1\ As adjusted in accordance with the Federal Civil Penalties 
Inflation Adjustment Act of 1990 (Pub. L. 101-140), as amended by the 
Debt Collection Improvement Act of 1996 (Pub. L. 104-143, section 
31001).

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

[[Page 387]]

    (2) Each voucher, invoice, claim form, or other individual request 
or demand for property, services, or money constitutes a separate claim.
    (3) A claim shall be considered made to the authority, recipient, or 
party when such claim is actually made to an agent, fiscal intermediary, 
or other entity, including any State or political subdivision thereof, 
acting for or on behalf of the authority, recipient, or party.
    (4) Each claim for property, services, or money is subject to a 
civil penalty regardless of whether such property, services, or money is 
actually delivered or paid.
    (5) If the Government has made any payment (including transferred 
property or provided services) on a claim, a person subject to a civil 
penalty under paragraph (a)(1) of this section shall also be subject to 
an assessment of not more than twice the amount of such claim or that 
portion thereof that is determined to be in violation of paragraph 
(a)(1) of this section. Such assessment shall be in lieu of damages 
sustained by the Government because of such claim.
    (b) Statements. (1) Except as provided in paragraph (c) of this 
section, any person who makes a written statement that--
    (i) The person knows or has reason to know--
    (A) Asserts a material fact which is false, fictitious, or 
fraudulent; or
    (B) Is false, fictitious, or fraudulent because it omits a material 
fact that the person making the statement has a duty to include in such 
statement; and
    (ii) Contains, or is accompanied by, an express certification or 
affirmation of the truthfulness and accuracy of the contents of the 
statement, shall be subject, in addition to any other remedy that may be 
prescribed by law, to a civil penalty of not more than $5,500. \2\
---------------------------------------------------------------------------

    \2\ As adjusted in accordance with the Federal Civil Penalties 
Inflation Adjustment Act of 1990 (Pub. L. 101-140), as amended by the 
Debt Collection Improvement Act of 1996 (Pub. L. 104-143, section 
31001).
---------------------------------------------------------------------------

    (2) Each written representation, certification, or affirmation 
constitutes a separate statement.
    (3) A statement shall be considered made to the authority when such 
statement is actually made to an agent, fiscal intermediary, or other 
entity, including any State or political subdivision thereof, acting for 
or on behalf of the authority.
    (c) No proof of specific intent to defraud is required to establish 
liability under this section.
    (d) In any case in which it is determined that more than one person 
is liable for making a claim or statement under this section, each such 
person may be held liable for a civil penalty under this section.
    (e) In any case in which it is determined that more than one person 
is liable for making a claim under this section on which the Government 
has made payment (including transferred property or provided services), 
an assessment may be imposed against any such person or jointly and 
severally against any combination of such persons.

[53 FR 881, Jan. 14, 1988, as amended at 62 FR 6720, Feb. 13, 1997]



Sec.  31.4  Investigation.

    (a) If an investigating official concludes that a subpoena pursuant 
to the authority conferred by 31 U.S.C. 3804(a) is warranted--
    (1) The subpoena so issued shall notify the person to whom it is 
addressed of the authority under which the subpoena is issued and shall 
identify the records or documents sought;
    (2) The investigating official may designate a person to act on his 
or her behalf to receive the documents sought; and
    (3) The person receiving such subpoena shall be required to tender 
to the investigating official or the person designated to receive the 
documents a certification that the documents sought have been produced, 
or that such documents are not available and the reasons therefor, or 
that such documents, suitably identified, have been withheld based upon 
the assertion of an identified privilege.
    (b) If the investigating official concludes that an action under the 
Program Fraud Civil Remedies Act may be warranted, the investigating 
official shall submit a report containing the findings and conclusions 
of such investigation to the reviewing official.

[[Page 388]]

    (c) Nothing in this section shall preclude or limit an investigating 
official's discretion to refer allegations directly to the Department of 
Justice for suit under the False Claims Act or other civil relief, or to 
defer or postpone a report or referral to the reviewing official to 
avoid interference with a criminal investigation or prosecution.
    (d) Nothing in this section modifies any responsibility of an 
investigating official to report violations of criminal law to the 
Attorney General.



Sec.  31.5  Review by the reviewing official.

    (a) If, based on the report of the investigating official under 
Sec.  31.4(b), the reviewing official determines that there is adequate 
evidence to believe that a person is liable under Sec.  31.3 of this 
part, the reviewing official shall transmit to the Attorney General a 
written notice of the reviewing official's intention to issue a 
complaint under Sec.  31.7.
    (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.  
31.3 of this part;
    (5) A statement of any exculpatory or mitigating circumstances that 
may relate to the claims or statements known by the reviewing official 
or the investigating official; and
    (6) A statement that there is a reasonable prospect of collecting an 
appropriate amount of penalties and assessments.



Sec.  31.6  Prerequisites for issuing a complaint.

    (a) The reviewing official may issue a complaint under Sec.  31.7 
only if--
    (1) The Department of Justice approves the issuance of a complaint 
in a written statement described in 31 U.S.C. 3803(b)(1), and
    (2) In the case of allegations of liability under Sec.  31.3(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.  31.3(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's claims that are unrelated or were not submitted simultaneously, 
regardless of the amount of money, or the value of property or services, 
demanded or requested.



Sec.  31.7  Complaint.

    (a) On or after the date the Department of Justice approves the 
issuance of a complaint in accordance with 31 U.S.C. 3803(b)(1), the 
reviewing official may serve a complaint on the defendant, as provided 
in Sec.  31.8.
    (b) The complaint shall state--
    (1) The allegations of liability against the defendant, including 
the statutory basis for liability, an identification of the claims or 
statements that are the basis for the alleged liability, and the reasons 
why liability allegedly arises from such claims or statements;
    (2) The maximum amount of penalties and assessments for which the 
defendant may be held liable;
    (3) Instructions for filing an answer to request a hearing, 
including a specific statement of the defendant's right to request a 
hearing by filing an answer and to be represented by a representative; 
and
    (4) That failure to file an answer within 30 days of service of the 
complaint will result in the imposition of the maximum amount of 
penalties and assessments without right to appeal, as provided in Sec.  
31.10.

[[Page 389]]

    (c) At the same time the reviewing official serves the complaint, he 
or she shall serve the defendant with a copy of these regulations.



Sec.  31.8  Service of complaint.

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



Sec.  31.9  Answer.

    (a) The defendant may request a hearing by serving an answer on the 
reviewing official within 30 days of service of the complaint. Service 
of an answer shall be made by delivering a copy to the reviewing 
official or by placing a copy in the United States mail, postage prepaid 
and addressed to the reviewing official. Service of an answer is 
complete upon such delivery or mailing. An answer shall be deemed to be 
a request for hearing.
    (b) In the answer, the defendant--
    (1) Shall admit or deny each of the allegations of liability made in 
the complaint;
    (2) Shall state any defense on which the defendant intends to rely;
    (3) May state any reasons why the defendant contends that the 
penalties and assessments should be less than the statutory maximum; and
    (4) Shall state the name, address, and telephone number of the 
person authorized by the defendant to act as defendant's representative, 
if any.
    (c) If the defendant is unable to file an answer meeting the 
requirements of paragraph (b) of this section within the time provided, 
the defendant may, before the expiration of 30 days from service of the 
complaint, serve on the reviewing official a general answer denying 
liability and requesting a hearing, and a request for an extension of 
time within which to serve an answer meeting the requirements of 
paragraph (b) of this section. The reviewing official shall file 
promptly the complaint, the general answer denying liability, and the 
request for an extension of time as provided in Sec.  31.11. For good 
cause shown, the ALJ may grant the defendant up to 30 additional days 
from the original due date within which to serve an answer meeting the 
requirements of paragraph (b) of this section.



Sec.  31.10  Default upon failure to answer.

    (a) If the defendant does not answer within the time prescribed in 
Sec.  31.9(a), the reviewing official may refer the complaint to an ALJ 
by filing the complaint and a statement that defendant has failed to 
answer on time.
    (b) Upon the referral of the complaint, the ALJ shall promptly serve 
on defendant in the manner prescribed in Sec.  31.8, a notice that an 
initial decision will be issued under this section.
    (c) In addition, the ALJ shall assume the facts alleged in the 
complaint to be true, and, if such facts establish liability under Sec.  
31.3, 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 
answer on time, the defendant waives any right to further review of the 
penalties and assessments imposed under paragraph (c) of this section, 
and the initial decision shall become final and binding upon the parties 
30 days after it is issued.
    (e) If, before such an initial decision becomes final, the defendant 
files a motion seeking to reopen on the grounds that extraordinary 
circumstances prevented the defendant from answering, the initial 
decision shall be stayed pending the ALJ's decision on the motion.
    (f) If, on such motion, the defendant can demonstrate extraordinary 
circumstances excusing the failure to answer on time, the ALJ shall 
withdraw the initial decision in paragraph (c) of this section, if such 
a decision has been issued, and shall grant the defendant an opportunity 
to answer the complaint.

[[Page 390]]

    (g) A decision of the ALJ denying a defendant's motion under 
paragraph (e) of this section is not subject to reconsideration under 
Sec.  31.38.
    (h) The defendant may appeal to the authority head the decision 
denying a motion to reopen by filing a notice of appeal in accordance 
with Sec.  31.26 within 15 days after the ALJ denies the motion. The 
timely filing of a notice of appeal shall stay the initial decision 
until the authority head decides the issue.
    (i) If the defendant files a timely notice of appeal, the Docket 
Clerk shall forward two copies of the notice of appeal to the authority 
head, and shall forward or make available the record of the proceeding 
to the authority head.
    (j) The authority head shall decide expeditiously whether 
extraordinary circumstances excuse the defendant's failure to answer on 
time based solely on the record before the ALJ.
    (k) If the authority head decides that extraordinary circumstances 
excused the defendant's failure to answer on time, the authority head 
shall remand the case to the ALJ with instructions to grant the 
defendant an opportunity to answer.
    (l) If the authority head decides that the defendant's failure to 
answer on time 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.  31.11  Referral of complaint and answer to the ALJ.

    Upon receipt of an answer, the reviewing official shall refer the 
matter to an ALJ by filing the complaint and answer in accordance with 
Sec.  31.26.



Sec.  31.12  Notice of hearing.

    (a) When the ALJ receives the complaint and answer, the ALJ shall 
promptly serve a notice of hearing upon the defendant in the manner 
prescribed by Sec.  31.8. At the time, the ALJ shall send a copy of such 
notice to the representative for the Government and shall file a copy 
with the Docket Clerk.
    (b) Such notice shall include--
    (1) The tentative time and place, and the nature of the hearing;
    (2) The legal authority and jurisdiction under which the hearing is 
to be held;
    (3) The matters of fact and law to be asserted;
    (4) A description of the procedures for the conduct of the hearing;
    (5) The name, address, and telephone number of the representative of 
the Government and of the defendant, if any; and
    (6) Such other matters as the ALJ deems appropriate.



Sec.  31.13  Parties to the hearing.

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



Sec.  31.14  Separation of functions.

    (a) The investigating official, the reviewing official, and any 
employee or agent of the authority who takes part in investigating, 
preparing, or presenting a particular case may not, in such case or a 
factually related case--
    (1) Participate in the hearing as the ALJ;
    (2) Participate or advise in the initial decision or the review of 
the initial decision by the authority head, except as a witness or a 
representative in public proceedings; or
    (3) Make the collection of penalties and assessments under 31 U.S.C. 
3806.
    (b) The ALJ shall not be responsible to, or subject to the 
supervision or direction of, the investigating official or the reviewing 
official.
    (c) Except as provided in paragraph (a) of this section, the 
representative for the Government may be employed anywhere in the 
authority, including in the offices of either the investigating official 
or the reviewing official.



Sec.  31.15  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

[[Page 391]]

and opportunity for all parties to participate. This provision does not 
prohibit a person or party from inquiring about the status of a case or 
asking routine questions concerning administrative functions or 
procedures.



Sec.  31.16  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 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)(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.  31.17  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.  31.18  Authority of the ALJ.

    (a) The ALJ shall conduct a fair and impartial hearing, avoid delay, 
maintain order, and assure that a record of the proceeding is made.
    (b) The ALJ has the authority to--
    (1) Set and change the date, time, and place of the hearing upon 
reasonable notice to the parties;
    (2) Continue or recess the hearing in whole or in part for a 
reasonable period of time;
    (3) Hold conferences to identify or simplify the issues, or to 
consider other matters that may aid in the expeditious disposition of 
the proceeding;
    (4) Administer oaths and affirmations;
    (5) Issue subpoenas requiring the attendance of witnesses and the 
production of documents at depositions or at hearings;
    (6) Rule on motions and other procedural matters;
    (7) Regulate the scope and timing of discovery;
    (8) Regulate the course of the hearing and the conduct of 
representatives and parties;
    (9) Examine witnesses;
    (10) Receive, rule on, exclude, or limit evidence;
    (11) Upon motion of a party, take official notice of facts;
    (12) Upon motion of a party, decide cases, in whole or in part, by 
summary judgment where there is no disputed issue of material fact;
    (13) Conduct any conference, argument, or hearing on motions in 
person or by telephone; and
    (14) Exercise such other authority as is necessary to carry out the 
responsibilities of the ALJ under this part.
    (c) The ALJ does not have the authority to find Federal statutes or 
regulations invalid.



Sec.  31.19  Prehearing conferences.

    (a) The ALJ may schedule prehearing conferences as appropriate.

[[Page 392]]

    (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.  31.20  Disclosure of documents.

    (a) Upon written request to the reviewing official, the defendant 
may review any relevant and material documents, transcripts, records, 
and other materials that relate to the allegations set out in the 
complaint and upon which the findings and conclusions of the 
investigating official under Sec.  31.4(b) are based, unless such 
documents are subject to a privilege under Federal law. Upon payment of 
fees for duplication, the defendant may obtain copies of such documents.
    (b) Upon written request to the reviewing official, the defendant 
also may obtain a copy of all exculpatory information in the possession 
of the reviewing official or investigating official relating to the 
allegations in the complaint, even if it is contained in a document that 
would otherwise be privileged. If the document would otherwise be 
privileged, only that portion containing exculpatory information must be 
disclosed.
    (c) The notice sent to the Attorney General from the reviewing 
official as described in Sec.  31.5 is not discoverable under any 
circumstances.
    (d) The defendant may file a motion to compel disclosure of the 
documents subject to the provisions of this section. Such a motion may 
only be filed following the serving of an answer pursuant to Sec.  31.9.



Sec.  31.21  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.  31.22 and 31.23, 
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. Such a motion shall be accompanied by a copy of the request for 
production of documents, request for admissions, or interrogatories, or 
in the case of depositions, a summary of the scope of the proposed 
deposition.
    (2) Within ten days of service, a party may file an opposition to 
the motion and/or a motion for protective order as provided in Sec.  
31.24.
    (3) The ALJ may grant a motion for discovery only if he or she finds 
that the discovery sought--
    (i) Is necessary for the expeditious, fair, and reasonable 
consideration of the issues;
    (ii) Is not unduly costly or burdensome;

[[Page 393]]

    (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.  31.24.
    (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.  31.8.
    (3) The deponent may file a motion to quash the subpoena or a motion 
for a protective order within ten days of service. If the ALJ has not 
acted on such a motion by the return date, such date shall be suspended 
pending the ALJ's final action on the motion.
    (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.  31.22  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.  31.33(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 
of 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.  31.23  Subpoenas for attendance at hearing.

    (a) A party wishing to procure the appearance and testimony of any 
individual at the hearing may request that the ALJ issue a subpoena.
    (b) A subpoena requiring the attendance and testimony of an 
individual may also require the individual to produce documents at the 
hearing.
    (c) A party seeking a subpoena shall file a written request therefor 
not less than 15 days before the date fixed for the hearing unless 
otherwise allowed by the ALJ for good cause shown. Such request shall be 
accompanied by a proposed subpoena, which shall specify and 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.  31.8. A subpoena on a party or upon an individual 
under the control of party may be served by first class mail.
    (f) A party or the individual to whom the subpoena is directed may 
file 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. If the ALJ has not acted on such a 
motion by the return date, such date shall be suspended pending the 
ALJ's final action on the motion.



Sec.  31.24  Protective order.

    (a) A party or a prospective witness or deponent may file a motion 
for a protective order with respect to discovery sought by an opposing 
party or with respect to the hearing, seeking to

[[Page 394]]

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



Sec.  31.25  Fees.

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



Sec.  31.26  Filing, form, and service of papers.

    (a) Filing and form. (1) A party filing any document under this part 
shall submit (i) the original and two copies to the Docket Operation 
Services, Department of Transportation, 1200 New Jersey Avenue, SE., 
Washington, DC 20590; and (ii) two copies simultaneously to the ALJ or, 
if on appeal, to the authority head. The requirements of this paragraph 
apply to all filings under this part, regardless of whether there is a 
cross-reference to Sec.  31.26.
    (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 Docket Clerk, 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 nunber of, the party or the person on whose 
behalf the paper was filed, or his or her representative.
    (4) Papers are considered filed when they are mailed. Date of 
mailing may be established by a certificate from the party or its 
representative or by proof that the document was sent by certified or 
registered mail.
    (b) Service. A party filing a document shall, at the time of filing, 
serve a copy of such document on every other party. Service upon any 
party of any document other than those required to be served as 
prescribed in Sec.  31.8 shall be made by delivering a copy, or by 
placing a copy of the document in the United States mail, postage 
prepaid and addressed, to the party's last known address. When a party 
is represented by a representative, service shall be made upon such 
representative in lieu of the actual party.
    (c) Proof of service. A certificate of the individual serving the 
document by personal delivery or by mail, setting forth the manner of 
service, shall be proof of service.

[53 FR 881, Jan. 14, 1988, as amended at 73 FR 33329, June 12, 2008]



Sec.  31.27  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.

[[Page 395]]

    (b) When the period of time allowed is less than seven days, 
intermediate Saturdays, Sundays, and legal holidays observed by the 
Federal government shall be excluded from the computation.
    (c) Where a document has been served or issued by placing it in the 
United States mail, an additional five days will be added to the time 
permitted for any responses.



Sec.  31.28  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 and served on all other 
parties.
    (b) Except for motions made during a prehearing conference or at the 
hearing, all motions shall be in writing. The ALJ may require that oral 
motions be reduced to writing.
    (c) Within 15 days after a written motion is served, or such other 
time as may be fixed by the ALJ, any party may file a response to such 
motion.
    (d) The ALJ may not grant a written motion before the time for 
filing response 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.
    (f) Except as provided by Sec. Sec.  31.21(e)(3) and 31.23(f), which 
concern subpoenas, the filing or pendency of a motion shall not 
automatically alter or extend a deadline or return date.



Sec.  31.29  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) Sanctions include but are not limited to those specifically set 
forth in paragraph (c), (d), and (e) of this section. Any such sanction 
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 imposition 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.  31.30  The hearing and burden of proof.

    (a) The ALJ shall conduct a hearing on the record in order to 
determine whether the defendant is liable for a civil penalty or 
assessment under Sec.  31.3 and, if so, the appropriate amount of any 
such civil penalty or assessment considering any aggravating or 
mitigating factors.
    (b) The authority shall prove defendent's liability and any 
aggravating factors by a preponderance of the evidence.
    (c) The defendant shall prove any affirmative defenses and any 
mitigating factors by a preponderance of the evidence.
    (d) The hearing shall be open to the public unless otherwise ordered 
by the ALJ for good cause shown.

[[Page 396]]



Sec.  31.31  Determining the amount of penalties and assessments.

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



Sec.  31.32  Location of hearing.

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



Sec.  31.33  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.

[[Page 397]]

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

    (a) The ALJ shall determine the admissibility of evidence.
    (b) Except as provided in this part, the ALJ shall not be bound by 
the Federal Rules of Evidence. However, the ALJ may apply the Federal 
Rules of Evidence where appropriate, e.g., to exclude unreliable 
evidence.
    (c) The ALJ shall exclude irrelevant and immaterial evidence.
    (d) Although relevant, evidence may be excluded if its probative 
value is substantially outweighed by the danger of unfair prejudice, 
confusion of the issues, or by considerations of undue delay or needless 
presentation of cumulative evidence.
    (e) Although relevant, evidence may be excluded if it is privileged 
under Federal law.
    (f) Evidence concerning offers of compromise or settlement shall be 
inadmissible to the extent provided in Rule 408 of the Federal Rules of 
Evidence.
    (g) The ALJ shall permit the parties to introduce rebuttal witnesses 
and evidence.
    (h) All documents and other evidence offered or taken for the record 
shall be open to examination by all parties, unless otherwise ordered by 
the ALJ pursuant to Sec.  31.24.



Sec.  31.35  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 at the offices of the Docket Clerk 
(see Sec.  31.26(a)(1) for address) and copied (upon payment of a 
reasonable fee) by anyone, unless otherwise ordered by the ALJ pursuant 
to Sec.  31.24.



Sec.  31.36  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

[[Page 398]]

such briefs. 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.  31.37  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.  31.3;
    (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.  31.31.
    (c) The ALJ shall promptly serve the intitial decision on all 
parties within 90 days after the time for submission of post-hearing 
briefs and reply briefs (if permitted) has expired. The ALJ shall at the 
same time serve all parties with a statement describing the right of any 
defendant determined to be liable for a civil penalty or assessment to 
file a motion for reconsideration with the ALJ or a notice of appeal 
with the 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 intitial 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.  31.38  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.  31.39.
    (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.  31.39.



Sec.  31.39  Appeal to authority head.

    (a) Any defendant who has served 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 in accordance with this section and Sec.  31.26.
    (b)(1) A notice of appeal may be filed at any time within 30 days 
after the ALJ issues an initial decision. However, if another party 
files a motion for reconsideration under Sec.  31.38, consideration of 
the appeal shall be stayed automatically pending resolution of the 
motion for reconsideration.
    (2) If a motion for reconsideration is timely filed, a notice of 
appeal may be filed within 30 days after the ALJ denies the motion or 
issues a revised initial decision, whichever applies.
    (3) The authority head may extend the initial 30-day period for an 
additional 30 days if the defendant files with the authority head a 
request for

[[Page 399]]

an extension within the initial 30-day period and shows good cause.
    (c) If the defendant files a timely notice of appeal and the time 
for filing motions for reconsideration under Sec.  31.38 has expired, 
the Docket Clerk shall forward two copies of the notice of appeal to the 
authority head, and shall forward or make available the record of the 
proceeding to the authority head.
    (d) A notice of appeal shall be accompanied by a written brief 
specifying exceptions to the initial decision and reasons supporting the 
exceptions.
    (e) The representative for the Government may file a brief in 
opposition to exceptions within 30 days of receiving the notice of 
appeal and accompanying brief.
    (f) There is no right to appear personally before the authority 
head.
    (g) There is no right to appeal any interlocutory ruling by the ALJ.
    (h) In reviewing the initial decision, the authority head shall not 
consider any objection that was not raised before the ALJ unless a 
demonstration is made of extraordinary circumstances causing the failure 
to raise the objection.
    (i) If any party demonstrates to the satisfaction of the authority 
head that additional evidence not presented at such hearing is material 
and that there were reasonable grounds for the failure to present such 
evidence at such hearing, the authority head shall remand the matter to 
the ALJ for consideration of such additional evidence.
    (j) The authority head may affirm, reduce, reverse, compromise, 
remand, or settle any penalty or assessment determined by the ALJ in any 
initial decision.
    (k) The authority head shall promptly serve each party to the appeal 
with a copy of the decision of the authority head and with a statement 
describing the right of any person determined to be liable for a penalty 
or assessment to seek judicial review.
    (l) Unless a petition for review is filed as provided in 31 U.S.C. 
3805 after a defendant has exhausted all administrative remedies under 
this part and within 60 days after the date on which the authority head 
serves the defendant with a copy of the authority head's decision, a 
determination that a defendant is liable under Sec.  31.3 is final and 
is not subject to judicial review.



Sec.  31.40  Stays ordered by the Department of Justice.

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



Sec.  31.41  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.  31.42  Judicial review.

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



Sec.  31.43  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.  31.44  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.  31.42 or Sec.  31.43, 
or any amount agreed upon in a compromise or settlement under Sec.  
31.46, may be collected by administrative offset under 31 U.S.C.

[[Page 400]]

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



Sec.  31.45  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.  31.46  Compromise or settlement.

    (a) Parties may make offers of compromise or settlement at any time.
    (b) The reviewing official has the exclusive authority to compromise 
or settle a case under this part at any time after the date on which the 
reviewing official is permitted to issue a complaint and before the date 
on which the ALJ issues an initial decision.
    (c) The authority head has exclusive authority to compromise or 
settle a case under this part at any time after the date on which the 
ALJ issues an initial decision, except during the pendency of any review 
under Sec.  31.42 or during the pendency of any action to collect 
penalties and assessments under Sec.  31.43.
    (d) The Attorney General has exclusive authority to compromise or 
settle a case under this part during the pendency of any review under 
Sec.  31.42 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.  31.47  Limitations.

    (a) The notice of hearing with respect to a claim or statement must 
be served in the manner specified in Sec.  31.8 within 6 years after the 
date on which such claim or statement is made.
    (b) If the defendant fails to serve a timely answer, service of a 
notice under Sec.  31.10(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 32_GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE 
(FINANCIAL ASSISTANCE)--Table of Contents



                     Subpart A_Purpose and Coverage

Sec.
32.100 What does this part do?
32.105 Does this part apply to me?
32.110 Are any of my Federal assistance awards exempt from this part?
32.115 Does this part affect the Federal contracts that I receive?

      Subpart B_Requirements for Recipients Other Than Individuals

32.200 What must I do to comply with this part?
32.205 What must I include in my drug-free workplace statement?
32.210 To whom must I distribute my drug-free workplace statement?
32.215 What must I include in my drug-free awareness program?
32.220 By when must I publish my drug-free workplace statement and 
          establish my drug-free awareness program?
32.225 What actions must I take concerning employees who are convicted 
          of drug violations in the workplace?
32.230 How and when must I identify workplaces?

        Subpart C_Requirements for Recipients Who Are Individuals

32.300 What must I do to comply with this part if I am an individual 
          recipient?
32.301 [Reserved]

          Subpart D_Responsibilities of DOT Awarding Officials

32.400 What are my responsibilities as a DOT awarding official?

           Subpart E_Violations of This Part and Consequences

32.500 How are violations of this part determined for recipients other 
          than individuals?
32.505 How are violations of this part determined for recipients who are 
          individuals?
32.510 What actions will the Federal Government take against a recipient 
          determined to have violated this part?
32.515 Are there any exceptions to those actions?

[[Page 401]]

                          Subpart F_Definitions

32.605 Award.
32.610 Controlled substance.
32.615 Conviction.
32.620 Cooperative agreement.
32.625 Criminal drug statute.
32.630 Debarment.
32.635 Drug-free workplace.
32.640 Employee.
32.645 Federal agency or agency.
32.650 Grant.
32.655 Individual.
32.660 Recipient.
32.665 State.
32.670 Suspension.

    Authority: 41 U.S.C. 701 et seq.

    Source: 68 FR 66645, Nov. 26, 2003, unless otherwise noted.



                     Subpart A_Purpose and Coverage



Sec.  32.100  What does this part do?

    This part carries out the portion of the Drug-Free Workplace Act of 
1988 (41 U.S.C. 701 et seq., as amended) that applies to grants. It also 
applies the provisions of the Act to cooperative agreements and other 
financial assistance awards, as a matter of Federal Government policy.



Sec.  32.105  Does this part apply to me?

    (a) Portions of this part apply to you if you are either--
    (1) A recipient of an assistance award from the Department of 
Transportation; or
    (2) A(n) DOT awarding official. (See definitions of award and 
recipient in Sec. Sec.  32.605 and 32.660, respectively.)
    (b) The following table shows the subparts that apply to you:

------------------------------------------------------------------------
             If you are . . .                    see subparts . . .
------------------------------------------------------------------------
(1) A recipient who is not an individual..  A, B and E.
(2) A recipient who is an individual......  A, C and E.
(3) A(n) DOT awarding official............  A, D and E.
------------------------------------------------------------------------



Sec.  32.110  Are any of my Federal assistance awards exempt from
this part?

    This part does not apply to any award that the Secretary of 
Transportation determines that the application of this part would be 
inconsistent with the international obligations of the United States or 
the laws or regulations of a foreign government.



Sec.  32.115  Does this part affect the Federal contracts that I receive?

    It will affect future contract awards indirectly if you are debarred 
or suspended for a violation of the requirements of this part, as 
described in Sec.  32.510(c). However, this part does not apply directly 
to procurement contracts. The portion of the Drug-Free Workplace Act of 
1988 that applies to Federal procurement contracts is carried out 
through the Federal Acquisition Regulation in chapter 1 of Title 48 of 
the Code of Federal Regulations (the drug-free workplace coverage 
currently is in 48 CFR part 23, subpart 23.5).



      Subpart B_Requirements for Recipients Other Than Individuals



Sec.  32.200  What must I do to comply with this part?

    There are two general requirements if you are a recipient other than 
an individual.
    (a) First, you must make a good faith effort, on a continuing basis, 
to maintain a drug-free workplace. You must agree to do so as a 
condition for receiving any award covered by this part. The specific 
measures that you must take in this regard are described in more detail 
in subsequent sections of this subpart. Briefly, those measures are to--
    (1) Publish a drug-free workplace statement and establish a drug-
free awareness program for your employees (see Sec. Sec.  32.205 through 
32.220); and
    (2) Take actions concerning employees who are convicted of violating 
drug statutes in the workplace (see Sec.  32.225).
    (b) Second, you must identify all known workplaces under your 
Federal awards (see Sec.  32.230).



Sec.  32.205  What must I include in my drug-free workplace statement?

    You must publish a statement that--
    (a) Tells your employees that the unlawful manufacture, 
distribution, dispensing, possession, or use of a controlled substance 
is prohibited in your workplace;
    (b) Specifies the actions that you will take against employees for 
violating that prohibition; and

[[Page 402]]

    (c) Lets each employee know that, as a condition of employment under 
any award, he or she:
    (1) Will abide by the terms of the statement; and
    (2) Must notify you in writing if he or she is convicted for a 
violation of a criminal drug statute occurring in the workplace and must 
do so no more than five calendar days after the conviction.



Sec.  32.210  To whom must I distribute my drug-free workplace statement?

    You must require that a copy of the statement described in Sec.  
32.205 be given to each employee who will be engaged in the performance 
of any Federal award.



Sec.  32.215  What must I include in my drug-free awareness program?

    You must establish an ongoing drug-free awareness program to inform 
employees about--
    (a) The dangers of drug abuse in the workplace;
    (b) Your policy of maintaining a drug-free workplace;
    (c) Any available drug counseling, rehabilitation, and employee 
assistance programs; and
    (d) The penalties that you may impose upon them for drug abuse 
violations occurring in the workplace.



Sec.  32.220  By when must I publish my drug-free workplace statement
and establish my drug-free awareness program?

    If you are a new recipient that does not already have a policy 
statement as described in Sec.  32.205 and an ongoing awareness program 
as described in Sec.  32.215, you must publish the statement and 
establish the program by the time given in the following table:

------------------------------------------------------------------------
                 If . . .                          then you . . .
------------------------------------------------------------------------
(a) The performance period of the award is  must have the policy
 less than 30 days.                          statement and program in
                                             place as soon as possible,
                                             but before the date on
                                             which performance is
                                             expected to be completed.
(b) The performance period of the award is  must have the policy
 30 days or more.                            statement and program in
                                             place within 30 days after
                                             award.
(c) You believe there are extraordinary     may ask the DOT awarding
 circumstances that will require more than   official to give you more
 30 days for you to publish the policy       time to do so. The amount
 statement and establish the awareness       of additional time, if any,
 program.                                    to be given is at the
                                             discretion of the awarding
                                             official.
------------------------------------------------------------------------



Sec.  32.225  What actions must I take concerning employees who are
convicted of drug violations in the workplace?

    There are two actions you must take if an employee is convicted of a 
drug violation in the workplace:
    (a) First, you must notify Federal agencies if an employee who is 
engaged in the performance of an award informs you about a conviction, 
as required by Sec.  32.205(c)(2), or you otherwise learn of the 
conviction. Your notification to the Federal agencies must--
    (1) Be in writing;
    (2) Include the employee's position title;
    (3) Include the identification number(s) of each affected award;
    (4) Be sent within ten calendar days after you learn of the 
conviction; and
    (5) Be sent to every Federal agency on whose award the convicted 
employee was working. It must be sent to every awarding official or his 
or her official designee, unless the Federal agency has specified a 
central point for the receipt of the notices.
    (b) Second, within 30 calendar days of learning about an employee's 
conviction, you must either--
    (1) Take appropriate personnel action against the employee, up to 
and including termination, consistent with the requirements of the 
Rehabilitation Act of 1973 (29 U.S.C. 794), as amended; or
    (2) Require the employee to participate satisfactorily in a drug 
abuse assistance or rehabilitation program approved for these purposes 
by a Federal, State or local health, law enforcement, or other 
appropriate agency.



Sec.  32.230  How and when must I identify workplaces?

    (a) You must identify all known workplaces under each DOT award. A 
failure to do so is a violation of your drug-free workplace 
requirements. You may identify the workplaces--

[[Page 403]]

    (1) To the DOT official that is making the award, either at the time 
of application or upon award; or
    (2) In documents that you keep on file in your offices during the 
performance of the award, in which case you must make the information 
available for inspection upon request by DOT officials or their 
designated representatives.
    (b) Your workplace identification for an award must include the 
actual address of buildings (or parts of buildings) or other sites where 
work under the award takes place. Categorical descriptions may be used 
(e.g., all vehicles of a mass transit authority or State highway 
department while in operation, State employees in each local 
unemployment office, performers in concert halls or radio studios).
    (c) If you identified workplaces to the DOT awarding official at the 
time of application or award, as described in paragraph (a)(1) of this 
section, and any workplace that you identified changes during the 
performance of the award, you must inform the DOT awarding official.



        Subpart C_Requirements for Recipients Who Are Individuals



Sec.  32.300  What must I do to comply with this part if I am an
individual recipient?

    As a condition of receiving a(n) DOT award, if you are an individual 
recipient, you must agree that--
    (a) You will not engage in the unlawful manufacture, distribution, 
dispensing, possession, or use of a controlled substance in conducting 
any activity related to the award; and
    (b) If you are convicted of a criminal drug offense resulting from a 
violation occurring during the conduct of any award activity, you will 
report the conviction:
    (1) In writing.
    (2) Within 10 calendar days of the conviction.
    (3) To the DOT awarding official or other designee for each award 
that you currently have, unless Sec.  32.301 or the award document 
designates a central point for the receipt of the notices. When notice 
is made to a central point, it must include the identification number(s) 
of each affected award.



Sec.  32.301  [Reserved]



          Subpart D_Responsibilities of DOT Awarding Officials



Sec.  32.400  What are my responsibilities as a(n) DOT awarding official?

    As a(n) DOT awarding official, you must obtain each recipient's 
agreement, as a condition of the award, to comply with the requirements 
in--
    (a) Subpart B of this part, if the recipient is not an individual; 
or
    (b) Subpart C of this part, if the recipient is an individual.



           Subpart E_Violations of this Part and Consequences



Sec.  32.500  How are violations of this part determined for recipients 
other than individuals?

    A recipient other than an individual is in violation of the 
requirements of this part if the Secretary of Transportation determines, 
in writing, that--
    (a) The recipient has violated the requirements of subpart B of this 
part; or
    (b) The number of convictions of the recipient's employees for 
violating criminal drug statutes in the workplace is large enough to 
indicate that the recipient has failed to make a good faith effort to 
provide a drug-free workplace.



Sec.  32.505  How are violations of this part determined for recipients
who are individuals?

    An individual recipient is in violation of the requirements of this 
part if the Secretary of Transportation determines, in writing, that--
    (a) The recipient has violated the requirements of subpart C of this 
part; or
    (b) The recipient is convicted of a criminal drug offense resulting 
from a violation occurring during the conduct of any award activity.



Sec.  32.510  What actions will the Federal Government take against a
recipient determined to have violated this part?

    If a recipient is determined to have violated this part, as 
described in

[[Page 404]]

Sec.  32.500 or Sec.  32.505, the Department of Transportation may take 
one or more of the following actions--
    (a) Suspension of payments under the award;
    (b) Suspension or termination of the award; and
    (c) Suspension or debarment of the recipient under 49 CFR part 29, 
for a period not to exceed five years.



Sec.  32.515  Are there any exceptions to those actions?

    The Secretary of Transportation may waive with respect to a 
particular award, in writing, a suspension of payments under an award, 
suspension or termination of an award, or suspension or debarment of a 
recipient if the Secretary of Transportation determines that such a 
waiver would be in the public interest. This exception authority cannot 
be delegated to any other official.



                          Subpart F_Definitions



Sec.  32.605  Award.

    Award means an award of financial assistance by the Department of 
Transportation or other Federal agency directly to a recipient.
    (a) The term award includes:
    (1) A Federal grant or cooperative agreement, in the form of money 
or property in lieu of money.
    (2) A block grant or a grant in an entitlement program, whether or 
not the grant is exempted from coverage under the Governmentwide rule 49 
CFR part 18 that implements OMB Circular A-102 (for availability, see 5 
CFR 1310.3) and specifies uniform administrative requirements.
    (b) The term award does not include:
    (1) Technical assistance that provides services instead of money.
    (2) Loans.
    (3) Loan guarantees.
    (4) Interest subsidies.
    (5) Insurance.
    (6) Direct appropriations.
    (7) Veterans' benefits to individuals (i.e., any benefit to 
veterans, their families, or survivors by virtue of the service of a 
veteran in the Armed Forces of the United States).



Sec.  32.610  Controlled substance.

    Controlled substance means a controlled substance in schedules I 
through V of the Controlled Substances Act (21 U.S.C. 812), and as 
further defined by regulation at 21 CFR 1308.11 through 1308.15.



Sec.  32.615  Conviction.

    Conviction means a finding of guilt (including a plea of nolo 
contendere) or imposition of sentence, or both, by any judicial body 
charged with the responsibility to determine violations of the Federal 
or State criminal drug statutes.



Sec.  32.620  Cooperative agreement.

    Cooperative agreement means an award of financial assistance that, 
consistent with 31 U.S.C. 6305, is used to enter into the same kind of 
relationship as a grant (see definition of grant in Sec.  32.650), 
except that substantial involvement is expected between the Federal 
agency and the recipient when carrying out the activity contemplated by 
the award. The term does not include cooperative research and 
development agreements as defined in 15 U.S.C. 3710a.



Sec.  32.625  Criminal drug statute.

    Criminal drug statute means a Federal or non-Federal criminal 
statute involving the manufacture, distribution, dispensing, use, or 
possession of any controlled substance.



Sec.  32.630  Debarment.

    Debarment means an action taken by a Federal agency to prohibit a 
recipient from participating in Federal Government procurement contracts 
and covered nonprocurement transactions. A recipient so prohibited is 
debarred, in accordance with the Federal Acquisition Regulation for 
procurement contracts (48 CFR part 9, subpart 9.4) and the common rule, 
Government-wide Debarment and Suspension (Nonprocurement), that 
implements Executive Order 12549 and Executive Order 12689.

[[Page 405]]



Sec.  32.635  Drug-free workplace.

    Drug-free workplace means a site for the performance of work done in 
connection with a specific award at which employees of the recipient are 
prohibited from engaging in the unlawful manufacture, distribution, 
dispensing, possession, or use of a controlled substance.



Sec.  32.640  Employee.

    (a) Employee means the employee of a recipient directly engaged in 
the performance of work under the award, including--
    (1) All direct charge employees;
    (2) All indirect charge employees, unless their impact or 
involvement in the performance of work under the award is insignificant 
to the performance of the award; and
    (3) Temporary personnel and consultants who are directly engaged in 
the performance of work under the award and who are on the recipient's 
payroll.
    (b) This definition does not include workers not on the payroll of 
the recipient (e.g., volunteers, even if used to meet a matching 
requirement; consultants or independent contractors not on the payroll; 
or employees of subrecipients or subcontractors in covered workplaces).



Sec.  32.645  Federal agency or agency.

    Federal agency or agency means any United States executive 
department, military department, government corporation, government 
controlled corporation, any other establishment in the executive branch 
(including the Executive Office of the President), or any independent 
regulatory agency.



Sec.  32.650  Grant.

    Grant means an award of financial assistance that, consistent with 
31 U.S.C. 6304, is used to enter into a relationship--
    (a) The principal purpose of which is to transfer a thing of value 
to the recipient to carry out a public purpose of support or stimulation 
authorized by a law of the United States, rather than to acquire 
property or services for the Federal Government's direct benefit or use; 
and
    (b) In which substantial involvement is not expected between the 
Federal agency and the recipient when carrying out the activity 
contemplated by the award.



Sec.  32.655  Individual.

    Individual means a natural person.



Sec.  32.660  Recipient.

    Recipient means any individual, corporation, partnership, 
association, unit of government (except a Federal agency) or legal 
entity, however organized, that receives an award directly from a 
Federal agency.



Sec.  32.665  State.

    State means any of the States of the United States, the District of 
Columbia, the Commonwealth of Puerto Rico, or any territory or 
possession of the United States.



Sec.  32.670  Suspension.

    Suspension means an action taken by a Federal agency that 
immediately prohibits a recipient from participating in Federal 
Government procurement contracts and covered nonprocurement transactions 
for a temporary period, pending completion of an investigation and any 
judicial or administrative proceedings that may ensue. A recipient so 
prohibited is suspended, in accordance with the Federal Acquisition 
Regulation for procurement contracts (48 CFR part 9, subpart 9.4) and 
the common rule, Government-wide Debarment and Suspension 
(Nonprocurement), that implements Executive Order 12549 and Executive 
Order 12689. Suspension of a recipient is a distinct and separate action 
from suspension of an award or suspension of payments under an award.



PART 33_TRANSPORTATION PRIORITIES AND ALLOCATION SYSTEM-
-Table of Contents



                            Subpart A_General

Sec.
33.1 Purpose of this part.
33.2 Priorities and allocations authority.
33.3 Program eligibility.

                          Subpart B_Definitions

33.20 Definitions.

[[Page 406]]

                   Subpart C_Placement of Rated Orders

33.30 Delegation of authority.
33.31 Priority ratings.
33.32 Elements of a rated order.
33.33 Acceptance and rejection of rated orders.
33.34 Preferential scheduling.
33.35 Extension of priority ratings.
33.36 Changes or cancellations of priority ratings and rated orders.
33.37 Use of rated orders.
33.38 Limitations on placing rated orders.

                 Subpart D_Special Priorities Assistance

33.40 General provisions.
33.41 Requests for priority rating authority.
33.42 Examples of assistance.
33.43 Criteria for assistance.
33.44 Instances where assistance may not be provided.
33.45 Assistance programs with other nations. [Reserved]

                      Subpart E_Allocation Actions

33.50 Policy.
33.51 General procedures.
33.52 Controlling the general distribution of a material in the civilian 
          market.
33.53 Types of allocation orders.
33.54 Elements of an allocation order.
33.55 Mandatory acceptance of an allocation order.
33.56 Changes or cancellations of an allocation order.

                       Subpart F_Official Actions

33.60 General provisions.
33.61 Rating Authorizations.
33.62 Directives.
33.63 Memoranda of Understanding.

                          Subpart G_Compliance

33.70 General provisions.
33.71 Audits and investigations.
33.72 Compulsory process.
33.73 Notification of failure to comply.
33.74 Violations, penalties, and remedies.
33.75 Compliance conflicts.

             Subpart H_Adjustments, Exceptions, and Appeals

33.80 Adjustments or exceptions.
33.81 Appeals.

                   Subpart I_Miscellaneous Provisions

33.90 Protection against claims.
33.91 Records and reports.
33.92 Applicability of this part and official actions.
33.93 Communications.

Appendix I to Part 33--Sample Form OST F 1254
Schedule 1 to Part 33--Approved Programs

    Authority: Defense Production Act of 1950, as amended, 50 U.S.C. 82; 
50 U.S.C. App. Sec. Sec.  2061-2171; 50 U.S.C. App Sec.  468; Executive 
Order 12742, (56 FR 1079, January 8, 1991); Executive Order 13603, (77 
FR 16651, March 16, 2012).

    Source: 77 FR 59801, Oct. 1, 2012, unless otherwise noted.



                            Subpart A_General



Sec.  33.1  Purpose of this part.

    This part provides guidance and procedures for use of the Defense 
Production Act priorities and allocations authority with respect to all 
forms of civil transportation. The guidance and procedures in this part 
are generally consistent with the guidance and procedures provided in 
other regulations issued under EO 13603 authority.



Sec.  33.2  Priorities and allocations authority.

    (a) Section 201 of Executive Order 13603 (77 FR 16651, March 16, 
2012) delegates the President's authority under section 101 of the 
Defense Production Act to require acceptance and priority performance of 
contracts and orders (other than contracts of employment) to promote the 
national defense over performance of any other contracts or orders, and 
to allocate materials, services, and facilities as deemed necessary or 
appropriate to promote the national defense to:
    (1) The Secretary of Agriculture with respect to food resources, 
food resource facilities, livestock resources, veterinary resources, 
plant health resources, and the domestic distribution of farm equipment 
and commercial fertilizer;
    (2) The Secretary of Energy with respect to all forms of energy;
    (3) The Secretary of Health and Human Services with respect to 
health resources;
    (4) The Secretary of Transportation with respect to all forms of 
civil transportation;
    (5) The Secretary of Defense with respect to water resources; and

[[Page 407]]

    (6) The Secretary of Commerce for all other materials, services, and 
facilities, including construction materials.
    (b) Section 202 of Executive Order 13603 states that the priorities 
and allocations authority delegated in section 201 of the order may be 
used only to support programs that have been determined in writing as 
necessary or appropriate to promote the national defense:
    (1) By the Secretary of Defense with respect to military production 
and construction, military assistance to foreign nations, military use 
of civil transportation, stockpiles, managed by the Department of 
Defense, space, and directly related activities;
    (2) By the Secretary of Energy with respect to energy production and 
construction, distribution and use, and directly related activities; and
    (3) By the Secretary of Homeland Security with respect to all other 
national defense programs, including civil defense and continuity of 
Government.



Sec.  33.3  Program eligibility.

    Certain programs to promote the national defense are eligible for 
priorities and allocations support. These include programs for military 
and energy production or construction, military or critical 
infrastructure assistance to any foreign nation, homeland security, 
stockpiling, space, and any directly related activity. Other eligible 
programs include emergency preparedness activities conducted pursuant to 
title VI of the Robert T. Stafford Disaster Relief and Emergency 
Assistance Act (42 U.S.C. 5195 et seq.) and critical infrastructure 
protection and restoration.



                          Subpart B_Definitions



Sec.  33.20  Definitions.

    The following definitions pertain to all sections of this part:
    Allocation means the control of the distribution of materials, 
services, or facilities for a purpose deemed necessary or appropriate to 
promote the national defense.
    Allocation authority means the authority of the Department of 
Transportation, pursuant to section 101 of the Defense Production Act, 
to allocate materials, services, and facilities for use in approved 
programs.
    Allocation order means an official action to control the 
distribution of materials, services, or facilities for a purpose deemed 
necessary or appropriate to promote the national defense.
    Allotment means an official action that specifies the maximum 
quantity of a material, service, or facility authorized for a specific 
use to promote the national defense.
    Approved program means a program determined by the Secretary of 
Defense, the Secretary of Energy, or the Secretary of Homeland Security 
to be necessary or appropriate to promote the national defense, in 
accordance with section 202 of Executive Order 13603.
    Civil transportation includes movement of persons and property by 
all modes of transportation in interstate, intrastate, or foreign 
commerce within the United States, its territories and possessions, and 
the District of Columbia, and related public storage and warehousing, 
ports, services, equipment and facilities, such as transportation 
carrier shop and repair facilities. ``Civil transportation'' also shall 
include direction, control, and coordination of civil transportation 
capacity regardless of ownership. ``Civil transportation'' shall not 
include transportation owned or controlled by the Department of Defense, 
use of petroleum and gas pipelines, and coal slurry pipelines used only 
to supply energy production facilities directly.
    Construction means the erection, addition, extension, or alteration 
of any building, structure, or project, using materials or products 
which are to be an integral and permanent part of the building, 
structure, or project. Construction does not include maintenance and 
repair.
    Critical infrastructure means any systems and assets, whether 
physical or cyber-based, so vital to the United States that the 
degradation or destruction of such systems and assets would have a 
debilitating impact on national security, including, but not limited to, 
national economic security and national public health or safety.

[[Page 408]]

    Defense Production Act means the Defense Production Act of 1950, as 
amended (50 U.S.C. App. Sec.  2061 et seq.).
    Delegate Agency means a government agency authorized by delegation 
from the Department of Transportation to place priority ratings on 
contracts or orders needed to support approved programs.
    Directive means an official action that requires a person to take or 
refrain from taking certain actions in accordance with its provisions.
    Emergency preparedness means all those activities and measures 
designed or undertaken to prepare for or minimize the effects of a 
hazard upon the civilian population, to deal with the immediate 
emergency conditions which would be created by the hazard, and to 
effectuate emergency repairs to, or the emergency restoration of, vital 
utilities and facilities destroyed or damaged by the hazard. Such term 
includes the following:
    (1) Measures to be undertaken in preparation for anticipated hazards 
(including the establishment of appropriate organizations, operational 
plans, and supporting agreements, the recruitment and training of 
personnel, the conduct of research, the procurement and stockpiling of 
necessary materials and supplies, the provision of suitable warning 
systems, the construction or preparation of shelters, shelter areas, and 
control centers, and, when appropriate, the non-military evacuation of 
the civilian population).
    (2) Measures to be undertaken during a hazard (including the 
enforcement of passive defense regulations prescribed by duly 
established military or civil authorities, the evacuation of personnel 
to shelter areas, the control of traffic and panic, and the control and 
use of lighting and civil communications).
    (3) Measures to be undertaken following a hazard (including 
activities for fire fighting, rescue, emergency medical, health and 
sanitation services, monitoring for specific dangers of special weapons, 
unexploded bomb reconnaissance, essential debris clearance, emergency 
welfare measures, and immediately essential emergency repair or 
restoration of damaged vital facilities).
    Energy means all forms of energy including petroleum, gas (both 
natural and manufactured), electricity, solid fuels (including all forms 
of coal, coke, coal chemicals, coal liquification, and coal 
gasification), solar, wind, other types of renewable energy, atomic 
energy, and the production, conservation, use, control, and distribution 
(including pipelines) of all of these forms of energy.
    Facilities includes all types of buildings, structures, or other 
improvements to real property (but excluding farms, churches or other 
places of worship, and private dwelling houses), and services relating 
to the use of any such building, structure, or other improvement.
    Farm equipment means equipment, machinery, and repair parts 
manufactured for use on farms in connection with the production or 
preparation for market use of food resources.
    Fertilizer means any product or combination of products that contain 
one or more of the elements nitrogen, phosphorus, and potassium for use 
as a plant nutrient.
    Food resources means all commodities and products, (simple, mixed, 
or compound), or complements to such commodities or products, that are 
capable of being ingested by either human beings or animals, 
irrespective of other uses to which such commodities or products may be 
put, at all stages of processing from the raw commodity to the products 
thereof in vendible form for human or animal consumption. ``Food 
resources'' also means potable water packaged in commercially marketable 
containers, all starches, sugars, vegetable and animal or marine fats 
and oils, seed, cotton, hemp, and flax fiber, but does not mean any such 
material after it loses its identity as an agricultural commodity or 
agricultural product.
    Food resource facilities means plants, machinery, vehicles 
(including on farm), and other facilities required for the production, 
processing, distribution, and storage (including cold storage) of food 
resources, and for the domestic distribution of farm equipment and 
fertilizer (excluding transportation thereof).

[[Page 409]]

    Hazard means an emergency or disaster resulting from--
    (1) A natural disaster; or
    (2) An accidental or man-caused event.
    Health resources means drugs, biological products, medical devices, 
materials, facilities, health supplies, services and equipment required 
to diagnose, mitigate or prevent the impairment of, improve, treat, 
cure, or restore the physical or mental health conditions of the 
population.
    Homeland security includes efforts--
    (1) To prevent terrorist attacks within the United States;
    (2) To reduce the vulnerability of the United States to terrorism;
    (3) To minimize damage from a terrorist attack in the United States; 
and
    (4) To recover from a terrorist attack in the United States.
    Item means any raw, in process, or manufactured material, article, 
commodity, supply, equipment, component, accessory, part, assembly, or 
product of any kind, technical information, process, or service.
    Local government means a county, municipality, city, town, township, 
local public authority (including any public and Indian housing agency 
under the United States Housing Act of 1937) school district, special 
district, intrastate district, council of governments (whether or not 
incorporated as a nonprofit corporation under state law), any other 
regional or interstate government entity, or any agency or 
instrumentality of a local government.
    Maintenance and repair and operating supplies or MRO--
    (1) ``Maintenance'' is the upkeep necessary to continue any plant, 
facility, or equipment in working condition.
    (2) ``Repair'' is the restoration of any plant, facility, or 
equipment to working condition when it has been rendered unsafe or unfit 
for service by wear and tear, damage, or failure of parts.
    (3) ``Operating supplies'' are any resources carried as operating 
supplies according to a person's established accounting practice. 
Operating supplies may include hand tools and expendable tools, jigs, 
dies, fixtures used on production equipment, lubricants, cleaners, 
chemicals and other expendable items.
    (4) MRO does not include items produced or obtained for sale to 
other persons or for installation upon or attachment to the property of 
another person, or items required for the production of such items; 
items needed for the replacement of any plant, facility, or equipment; 
or items for the improvement of any plant, facility, or equipment by 
replacing items which are still in working condition with items of a new 
or different kind, quality, or design.
    Materials includes--
    (1) Any raw materials (including minerals, metals, and advanced 
processed materials), commodities, articles, components (including 
critical components), products, and items of supply; and
    (2) Any technical information or services ancillary to the use of 
any such materials, commodities, articles, components, products, or 
items.
    National defense means programs for military and energy production 
or construction, military or critical infrastructure assistance to any 
foreign nation, homeland security, stockpiling, space, and any directly 
related activity. Such term includes emergency preparedness activities 
conducted pursuant to title VI of the Robert T. Stafford Disaster Relief 
and Emergency Assistance Act and critical infrastructure protection and 
restoration.
    Official action means an action taken by the Department of 
Transportation or another resource agency under the authority of the 
Defense Production Act, Executive Order 13603, and this part. Such 
actions include, but are not limited to, the issuance of Rating 
Authorizations, Directives, Set-Asides, Allotments, Planning Orders, 
Memoranda of Understanding, Demands for Information, Inspection 
Authorizations, and Administrative Subpoenas.
    Person includes an individual, corporation, partnership, 
association, or any other organized group of persons, or legal successor 
or representative thereof, or any State or local government or agency 
thereof.
    Planning order means notification of tentative arrangements to meet 
national defense requirements issued in

[[Page 410]]

priority order or allocation order format, for planning purposes only.
    Rated order means a prime contract, a subcontract, or a purchase 
order in support of an approved program issued in accordance with the 
provisions of this part.
    Resource agency means any agency delegated priorities and 
allocations authority as specified in Sec.  33.2.
    Secretary means the Secretary of Transportation.
    Selective Service Act refers to Section 18 of the Selective Service 
Act of 1948 (50 U.S.C. App. Sec.  468).
    Services includes any effort that is needed for or incidental to--
    (1) The development, production, processing, distribution, delivery, 
or use of an industrial resource or a critical technology item;
    (2) The construction of facilities;
    (3) The movement of individuals and property by all modes of civil 
transportation; or
    (4) Other national defense programs and activities.
    Set-aside means an official action that requires a person to reserve 
materials, services, or facilities capacity in anticipation of the 
receipt of rated orders.
    Stafford Act means title VI (Emergency Preparedness) of the Robert 
T. Stafford Disaster Relief and Emergency Assistance Act, as amended (42 
U.S.C. 5195-5197g).
    State means any of the several States of the United States, the 
District of Columbia, the Commonwealth of Puerto Rico, any territory or 
possession of the United States, or any agency or instrumentality of a 
State exclusive of local governments. The term does not include any 
public and Indian housing agency under United States Housing Act of 
1937.
    Water resources means all usable water, from all sources, within the 
jurisdiction of the United States, that can be managed, controlled, and 
allocated to meet emergency requirements, except ``water resources'' 
does not include usable water that qualifies as ``food resources.''



                   Subpart C_Placement of Rated Orders



Sec.  33.30  Delegation of authority.

    The priorities and allocations authorities of the President under 
title I of the Defense Production Act with respect to all forms of civil 
transportation have been delegated to the Secretary of Transportation 
under section 201(a)(4) of Executive Order 13603 of March 16, 2012 (77 
FR 16651).



Sec.  33.31  Priority ratings.

    (a) Levels of priority. (1) There are two levels of priority 
established by the Transportation Priorities and Allocations System 
regulations, identified by the rating symbols ``DO'' and ``DX''.
    (2) All DO-rated orders have equal priority with each other and take 
precedence over unrated orders. All DX-rated orders have equal priority 
with each other and take precedence over DO-rated orders and unrated 
orders. (For resolution of conflicts among rated orders of equal 
priority, see Sec.  33.34(c).)
    (3) In addition, a Directive regarding priority treatment for a 
given item issued by the resource agency with priorities jurisdiction 
for that item takes precedence over any DX-rated order, DO-rated order, 
or unrated order, as stipulated in the Directive. (For a full discussion 
of Directives, see Sec.  33.62.)
    (b) Program identification symbols. Program identification symbols 
indicate which approved program is being supported by a rated order. DOT 
will use the letter ``T'' followed by a number for all transportation-
related approved programs. Programs may be approved under the procedures 
of Executive Order 13603 at any time. Program identification symbols, in 
themselves, do not connote any priority.
    (c) Priority ratings. A priority rating consists of the rating 
symbol--DO and DX--and the program identification symbol, such as DO-T1 
or DX-T1 for a priority rating under TPAS.



Sec.  33.32  Elements of a rated order.

    Each rated order must include:
    (a) The appropriate priority rating (e.g. DO-T1 or DX-T1);
    (b) A required delivery date or dates. The words ``immediately'' or 
``as soon

[[Page 411]]

as possible'' do not constitute a delivery date. A ``requirements 
contract,'' ``basic ordering agreement,'' ``prime vendor contract,'' or 
similar procurement document bearing a priority rating may contain no 
specific delivery date or dates and may provide for the furnishing of 
items or service from time-to-time or within a stated period against 
specific purchase orders, such as ``calls,'' ``requisitions,'' and 
``delivery orders.'' These purchase orders must specify a required 
delivery date or dates and are to be considered as rated as of the date 
of their receipt by the supplier and not as of the date of the original 
procurement document;
    (c) The written signature on a manually placed order, or the digital 
signature or name on an electronically placed order, of an individual 
authorized to sign rated orders for the person placing the order. The 
signature or use of the name certifies that the rated order is 
authorized under this part and that the requirements of this part are 
being followed; and
    (d)(1) A statement that reads in substance:
    This is a rated order certified for national defense use, and you 
are required to follow all the provisions of the Transportation 
Priorities and Allocations System regulation at 49 CFR Part 33.
    (2) If the rated order is placed in support of emergency 
preparedness requirements and expedited action is necessary and 
appropriate to meet these requirements, the following sentences should 
be added following the statement set forth in paragraph (d)(1) above:

    This rated order is placed for the purpose of emergency 
preparedness. It must be accepted or rejected within [INSERT NUMBER OF 
HOURS REQUIRED IN Sec.  33.33] hours from receipt of the order, in 
accordance with Sec.  33.33(e) of the Transportation Priorities and 
Allocations System regulation at 49 CFR Part 33.



Sec.  33.33  Acceptance and rejection of rated orders.

    (a) Mandatory acceptance. (1) Except as otherwise specified in this 
section, a person shall accept every rated order received and must fill 
such orders regardless of any other rated or unrated orders that have 
been accepted.
    (2) A person shall not discriminate against rated orders in any 
manner such as by charging higher prices or by imposing different terms 
and conditions than for comparable unrated orders.
    (b) Mandatory rejection. Unless otherwise directed by the Department 
of Transportation for a rated order involving all forms of civil 
transportation:
    (1) A person shall not accept a rated order for delivery on a 
specific date if unable to fill the order by that date. However, the 
person must inform the customer of the earliest date on which delivery 
can be made and offer to accept the order on the basis of that date. 
Scheduling conflicts with previously accepted lower rated or unrated 
orders are not sufficient reason for rejection under this section.
    (2) A person shall not accept a DO-rated order for delivery on a 
date which would interfere with delivery of any previously accepted DO- 
or DX-rated orders. However, the person must offer to accept the order 
based on the earliest delivery date otherwise possible.
    (3) A person shall not accept a DX-rated order for delivery on a 
date which would interfere with delivery of any previously accepted DX-
rated orders, but must offer to accept the order based on the earliest 
delivery date otherwise possible.
    (4) If a person is unable to fill all of the rated orders of equal 
priority status received on the same day, the person must accept, based 
upon the earliest delivery dates, only those orders which can be filled, 
and reject the other orders. For example, a person must accept order A 
requiring delivery on December 15 before accepting order B requiring 
delivery on December 31. However, the person must offer to accept the 
rejected orders based on the earliest delivery dates otherwise possible.
    (5) A person shall not accept a rated order if the person is 
prohibited by Federal law from meeting the terms of the order.
    (c) Optional rejection. Unless otherwise directed by the Department 
of

[[Page 412]]

Transportation for a rated order involving all forms of civil 
transportation, rated orders may be rejected in any of the following 
cases as long as a supplier does not discriminate among customers:
    (1) If the person placing the order is unwilling or unable to meet 
regularly established terms of sale or payment;
    (2) If the order is for an item not supplied or for a service not 
capable of being performed;
    (3) If the order is for an item or service produced, acquired, or 
provided only for the supplier's own use for which no orders have been 
filled for two years prior to the date of receipt of the rated order. 
If, however, a supplier has sold some of these items or provided similar 
services, the supplier is obligated to accept rated orders up to that 
quantity or portion of production or service, whichever is greater, sold 
or provided within the past two years;
    (4) If the person placing the rated order, other than the U.S. 
Government, makes the item or performs the service being ordered;
    (5) If acceptance of a rated order or performance against a rated 
order would violate any other regulation, official action, or order of 
the Department of Transportation, issued under the authority of the 
Defense Production Act or another relevant statute.
    (d) Customer notification requirements. (1) Except as provided in 
paragraph (e) of this section, a person must accept or reject a rated 
order in writing or electronically within fifteen (15) working days 
after receipt of a DO rated order and within ten (10) working days after 
receipt of a DX rated order. If the order is rejected, the person must 
give reasons in writing or electronically for the rejection.
    (2) If a person has accepted a rated order and subsequently finds 
that shipment or performance will be delayed, the person must notify the 
customer immediately, give the reasons for the delay, and advise of a 
new shipment or performance date. If notification is given verbally, 
written or electronic confirmation must be provided within five (5) 
working days.
    (e) Exception for emergency preparedness conditions. If a rated 
order is placed for the purpose of emergency preparedness and includes 
the additional statement set forth in Sec.  33.32(d)(2), a person must 
accept or reject the rated order and transmit the acceptance or 
rejection in writing or in an electronic format:
    (1) Within six (6) hours after receipt of the order if the order is 
issued in response to a hazard that has occurred; or
    (2) Within the greater of twelve (12) hours from receipt of the 
order or the time specified in the order, if the order is issued to 
prepare for an imminent hazard.



Sec.  33.34  Preferential scheduling.

    (a) A person must schedule operations, including the acquisition of 
all needed production items or services, in a timely manner to satisfy 
the delivery requirements of each rated order. Modifying production or 
delivery schedules is necessary only when required delivery dates for 
rated orders cannot otherwise be met.
    (b) DO-rated orders must be given production or performance 
preference over unrated orders, if necessary to meet required delivery 
dates, even if this requires the diversion of items being processed or 
ready for delivery or services being performed against unrated orders. 
Similarly, DX-rated orders must be given preference over DO-rated orders 
and unrated orders. (Examples: If a person receives a DO-rated order 
with a delivery date of June 3 and if meeting that date would mean 
delaying production or delivery of an item for an unrated order, the 
unrated order must be delayed. If a DX-rated order is received calling 
for delivery on July 15 and a person has a DO-rated order requiring 
delivery on June 2 and operations can be scheduled to meet both 
deliveries, there is no need to alter production schedules to give any 
additional preference to the DX-rated order.)
    (c) Conflicting rated orders. (1) If a person finds that delivery or 
performance against any accepted rated orders conflicts with the 
delivery or performance against other accepted rated orders of equal 
priority status, the person shall give precedence to the conflicting 
orders in the sequence in which they are to be delivered or performed 
(not to the

[[Page 413]]

receipt dates). If the conflicting orders are scheduled to be delivered 
or performed on the same day, the person shall give precedence to those 
orders that have the earliest receipt dates.
    (2) If a person is unable to resolve rated order delivery or 
performance conflicts under this section, the person should promptly 
seek special priorities assistance as provided in Sec. Sec.  33.40 
through 33.44. If the person's customer objects to the rescheduling of 
delivery or performance of a rated order, the customer should promptly 
seek special priorities assistance as provided in Sec. Sec.  33.40 
through 33.44. For any rated order against which delivery or performance 
will be delayed, the person must notify the customer as provided in 
Sec.  33.33.
    (d) If a person is unable to purchase needed production items in 
time to fill a rated order by its required delivery date, the person 
must fill the rated order by using inventoried production items. A 
person who uses inventoried items to fill a rated order may replace 
those items with the use of a rated order as provided in Sec.  33.37(b).



Sec.  33.35  Extension of priority ratings.

    (a) A person must use rated orders with suppliers to obtain items or 
services needed to fill a rated order. The person must use the priority 
rating indicated on the customer's rated order, except as otherwise 
provided in this part or as directed by the Department of 
Transportation. For example, if a person is in receipt of a DO-T1 
priority rating for a bus and has several buses in inventory that are in 
need of repair, that person must use a DO-T1 rated order to obtain the 
needed bus repairs.
    (b) The priority rating must be included on each successive order 
placed to obtain items or services needed to fill a customer's rated 
order. This continues from contractor to subcontractor to supplier 
throughout the entire procurement chain.



Sec.  33.36  Changes or cancellations of priority ratings and rated orders.

    (a) The priority rating on a rated order may be changed or canceled 
by:
    (1) An official action of the Department of Transportation; or
    (2) Written notification from the person who placed the rated order.
    (b) If an unrated order is amended so as to make it a rated order, 
or a DO rating is changed to a DX rating, the supplier must give the 
appropriate preferential treatment to the order as of the date the 
change is received by the supplier.
    (c) An amendment to a rated order that significantly alters a 
supplier's original production or delivery schedule shall constitute a 
new rated order as of the date of its receipt. The supplier must accept 
or reject the amended order according to the provisions of Sec.  33.33.
    (d) The following amendments do not constitute a new rated order: a 
change in shipping destination; a reduction in the total amount of the 
order; an increase in the total amount of the order which has negligible 
impact upon deliveries; a minor variation in size or design; or a change 
which is agreed upon between the supplier and the customer.
    (e) If a person no longer needs items or services to fill a rated 
order, any rated orders placed with suppliers for the items or services, 
or the priority rating on those orders, must be canceled.
    (f) When a priority rating is added to an unrated order, or is 
changed or canceled, all suppliers must be promptly notified in writing.



Sec.  33.37  Use of rated orders.

    (a) A person must use rated orders to obtain:
    (1) Items which will be physically incorporated into other items to 
fill rated orders, including that portion of such items normally 
consumed or converted into scrap or by-products in the course of 
processing;
    (2) Containers or other packaging materials required to make 
delivery of the finished items against rated orders;
    (3) Services, other than contracts of employment, needed to fill 
rated orders; and
    (4) MRO needed to produce the finished items to fill rated orders.
    (b) A person may use a rated order to replace inventoried items 
(including finished items) if such items were used to fill rated orders, 
as follows:

[[Page 414]]

    (1) The order must be placed within 90 days of the date of use of 
the inventory.
    (2) A DO rating and the program identification symbol indicated on 
the customer's rated order must be used on the order. A DX rating may 
not be used even if the inventory was used to fill a DX-rated order.
    (3) If the priority ratings on rated orders from one customer or 
several customers contain different program identification symbols, the 
rated orders may be combined. In this case, the program identification 
symbol ``T9'' must be used (i.e., DO-T9).
    (c) A person may combine DX- and DO-rated orders from one customer 
or several customers if the items or services covered by each level of 
priority are identified separately and clearly. If different program 
identification symbols are indicated on those rated orders of equal 
priority, the person must use the program identification symbol ``T9'' 
(i.e., DO-T9 or DX-T9).
    (d) Combining rated and unrated orders.
    (1) A person may combine rated and unrated order quantities on one 
purchase order provided that:
    (i) The rated quantities are separately and clearly identified; and
    (ii) The four elements of a rated order, as required by Sec.  33.32, 
are included on the order with the statement required in Sec.  33.32(d) 
modified to read in substance:
    This purchase order contains rated order quantities certified for 
national defense use, and you are required to follow all the provisions 
of the Transportation Priorities and Allocations System regulations at 
49 CFR Part 33 only as it pertains to the rated quantities.
    (2) A supplier must accept or reject the rated portion of the 
purchase order as provided in Sec.  33.33 and give preferential 
treatment only to the rated quantities as required by this part. This 
part may not be used to require preferential treatment for the unrated 
portion of the order.
    (3) Any supplier who believes that rated and unrated orders are 
being combined in a manner contrary to the intent of this part or in a 
fashion that causes undue or exceptional hardship may submit a request 
for adjustment or exception under Sec.  33.80.
    (e) A person may place a rated order for the minimum commercially 
procurable quantity even if the quantity needed to fill a rated order is 
less than that minimum. However, a person must combine rated orders as 
provided in paragraph (c) of this section, if possible, to obtain 
minimum procurable quantities.
    (f) A person is not required to place a priority rating on an order 
for less than $75,000, or one-half of the Simplified Acquisition 
Threshold (as established in the Federal Acquisition Regulations (FAR) 
(see FAR section 2.101) or in other authorized acquisition regulatory or 
management systems), whichever amount is greater, provided that delivery 
can be obtained in a timely fashion without the use of the priority 
rating.



Sec.  33.38  Limitations on placing rated orders.

    (a) General limitations. (1) A person may not place a DO- or DX-
rated order unless entitled to do so under this part.
    (2) Rated orders may not be used to obtain:
    (i) Delivery or performance on a date earlier than needed;
    (ii) A greater quantity of the item or services than needed, except 
to obtain a minimum procurable quantity. Separate rated orders may not 
be placed solely for the purpose of obtaining minimum procurable 
quantities on each order;
    (iii) Items or services in advance of the receipt of a rated order, 
except as specifically authorized by the Department of Transportation 
(see Sec.  33.41(c) for information on obtaining authorization for a 
priority rating in advance of a rated order);
    (iv) Items that are not needed to fill a rated order, except as 
specifically authorized by the Department of Transportation, or as 
otherwise permitted by this part;
    (v) Any of the following items unless specific priority rating 
authority has been obtained from the Department of Transportation, a 
Delegate Agency, or the Department of Commerce, as appropriate:

[[Page 415]]

    (A) Items for plant improvement, expansion, or construction, unless 
they will be physically incorporated into a construction project covered 
by a rated order; and
    (B) Production or construction equipment or items to be used for the 
manufacture of production equipment (For information on requesting 
priority rating authority, see Sec.  33.41); or
    (vi) Any items related to the development of chemical or biological 
warfare capabilities or the production of chemical or biological 
weapons, unless such development or production has been authorized by 
the President or the Secretary of Defense.
    (b) Jurisdictional limitations. (1) Unless authorized by the 
resource agency with jurisdiction, the provisions of this part are not 
applicable to the following resources:
    (i) Food resources, food resource facilities, livestock resources, 
veterinary resources, plant health resources, and the domestic 
distribution of farm equipment and commercial fertilizer (Resource 
agency with jurisdiction--Department of Agriculture);
    (ii) All forms of energy (Resource agency with jurisdiction--
Department of Energy);
    (iii) Health resources (Resource agency with jurisdiction--
Department of Health and Human Services);
    (iv) Water resources (Resource agency with jurisdiction--Department 
of Defense/U.S. Army Corps of Engineers); and
    (v) All materials, services, and facilities, including construction 
materials the authority for which has not been delegated to other 
agencies under Executive Order 13603. (Resource Agency with 
jurisdiction--Department of Commerce);
    (vi) Communications services (Resource agency with jurisdiction--
National Communications System under Executive Order 12472 of April 3, 
1984).
    (2) [Reserved]



                 Subpart D_Special Priorities Assistance



Sec.  33.40  General provisions.

    (a) TPAS is designed to be largely self-executing. However, from 
time-to-time production or delivery problems will arise. In this event, 
a person should immediately contact DOT's Defense Production Act 
Activities Coordinator, Office of Intelligence, Security, and Emergency 
Response, 1200 New Jersey Avenue SE., Washington, DC 20590, for guidance 
or assistance. If the problem(s) cannot otherwise be resolved, special 
priorities assistance should be sought from the Department of 
Transportation through the Director, Office of Intelligence, Security, 
and Emergency Response, 1200 New Jersey Avenue SE., Washington, DC 
20590. If the Department of Transportation is unable to resolve the 
problem or to authorize the use of a priority rating and believes 
additional assistance is warranted, the Department of Transportation may 
forward the request to another resource agency, as appropriate, for 
action. Special priorities assistance is a service provided to alleviate 
problems that do arise.
    (b) Special priorities assistance is available for any reason 
consistent with this part. Generally, special priorities assistance is 
provided to expedite deliveries, resolve delivery conflicts, place rated 
orders, locate suppliers, or to verify information supplied by customers 
and vendors. Special priorities assistance may also be used to request 
rating authority for items that are not normally eligible for priority 
treatment.
    (c) A request for special priorities assistance or priority rating 
authority must be submitted on Form OST F 1254 (OMB control number to be 
inserted in the subsequent final rule) to the Defense Production Act 
Activities Coordinator, Office of Intelligence, Security, and Emergency 
Response, 1200 New Jersey Avenue SE., Washington, DC 20590. Form OST F 
1254 may be obtained from the Department of Transportation or a Delegate 
Agency. A sample Form OST F 1254 is attached at Appendix I to this part.



Sec.  33.41  Requests for priority rating authority.

    (a) If a rated order is likely to be delayed because a person is 
unable to obtain items or services not normally rated under this part, 
the person may request the authority to use a priority

[[Page 416]]

rating in ordering the needed items or services.
    (b) Rating authority for production or construction equipment. (1) A 
request for priority rating authority for production or construction 
equipment must be submitted to the U.S. Department of Commerce on FORM 
BIS-999. (See 15 CFR 700.51).
    (2) When the use of a priority rating is authorized for the 
procurement of production or construction equipment, a rated order may 
be used either to purchase or to lease such equipment. However, in the 
latter case, the equipment may be leased only from a person engaged in 
the business of leasing such equipment or from a person willing to lease 
rather than sell.
    (c) Rating authority in advance of a rated prime contract. (1) In 
certain cases and upon specific request, the Department of 
Transportation, in order to promote the national defense, may authorize 
a person to place a priority rating on an order to a supplier in advance 
of the issuance of a rated prime contract. In these instances, the 
person requesting advance rating authority must obtain sponsorship of 
the request from the Department of Transportation or the appropriate 
Delegate Agency. The person shall also assume any business risk 
associated with the placing of rated orders if these orders have to be 
cancelled in the event the rated prime contract is not issued.
    (2) The person must state the following in the request:
    It is understood that the authorization of a priority rating in 
advance of our receiving a rated prime contract from the Department of 
Transportation and our use of that priority rating with our suppliers in 
no way commits the Department of Transportation or any other government 
agency to enter into a contract or order or to expend funds. Further, we 
understand that the Federal Government shall not be liable for any 
cancellation charges, termination costs, or other damages that may 
accrue if a rated prime contract is not eventually placed and, as a 
result, we must subsequently cancel orders placed with the use of the 
priority rating authorized as a result of this request.
    (3) In reviewing requests for rating authority in advance of a rated 
prime contract, the Department of Transportation will consider, among 
other things, the following criteria:
    (i) The probability that the prime contract will be awarded;
    (ii) The impact of the resulting rated orders on suppliers and on 
other authorized programs;
    (iii) Whether the contractor is the sole source;
    (iv) Whether the item being produced has a long lead time; and
    (v) The time period for which the rating is being requested.
    (4) The Department of Transportation may require periodic reports on 
the use of the rating authority granted under paragraph (c) of this 
section.
    (5) If a rated prime contract is not issued, the person shall 
promptly notify all suppliers who have received rated orders pursuant to 
the advanced rating authority that the priority rating on those orders 
is cancelled.



Sec.  33.42  Examples of assistance.

    (a) While special priorities assistance may be provided for any 
reason in support of this part, it is usually provided in situations 
where:
    (1) A person is experiencing difficulty in obtaining delivery 
against a rated order by the required delivery date; or
    (2) A person cannot locate a supplier for an item or service needed 
to fill a rated order.
    (b) Other examples of special priorities assistance include:
    (1) Ensuring that rated orders receive preferential treatment by 
suppliers;
    (2) Resolving production or delivery conflicts between various rated 
orders;
    (3) Assisting in placing rated orders with suppliers;
    (4) Verifying the urgency of rated orders; and
    (5) Determining the validity of rated orders.



Sec.  33.43  Criteria for assistance.

    Requests for special priorities assistance should be timely, e.g., 
the request has been submitted promptly and enough time exists for the 
Department of Transportation or the Delegate

[[Page 417]]

Agency to effect a meaningful resolution to the problem, and must 
establish that:
    (a) There is an urgent need for the item; and
    (b) The applicant has made a reasonable effort to resolve the 
problem.



Sec.  33.44  Instances where assistance may not be provided.

    Special priorities assistance is provided at the discretion of the 
Department of Transportation or the Delegate Agencies, when it is 
determined that such assistance is warranted to meet the objectives of 
this part. Examples where assistance may not be provided include 
situations when a person is attempting to:
    (a) Secure a price advantage;
    (b) Obtain delivery prior to the time required to fill a rated 
order;
    (c) Gain competitive advantage;
    (d) Disrupt an industry apportionment program in a manner designed 
to provide a person with an unwarranted share of scarce items; or
    (e) Overcome a supplier's regularly established terms of sale or 
conditions of doing business.



Sec.  33.45  Assistance programs with other nations. [Reserved]



                      Subpart E_Allocation Actions



Sec.  33.50  Policy.

    (a) It is the policy of the Federal Government that the allocations 
authority under title I of the Defense Production Act may:
    (1) Only be used when there is insufficient supply of a material, 
service, or facility to satisfy national defense supply requirements 
through the use of the priorities authority or when the use of the 
priorities authority would cause a severe and prolonged disruption in 
the supply of materials, services, or facilities available to support 
normal U.S. economic activities; and
    (2) Not be used to ration materials or services at the retail level.
    (b) Allocation orders, when used, will be distributed equitably 
among the suppliers of the materials, services, or facilities being 
allocated and not require any person to relinquish a disproportionate 
share of the civilian market.



Sec.  33.51  General procedures.

    When the Department of Transportation plans to execute its 
allocations authority to address a supply problem within its resource 
jurisdiction, the Department shall develop a plan that includes the 
following information:
    (a) A copy of the written determination made in accordance with 
section 202 of Executive Order 13603, that the program or programs that 
would be supported by the allocation action are necessary or appropriate 
to promote the national defense;
    (b) A detailed description of the situation to include any unusual 
events or circumstances that have created the requirement for an 
allocation action;
    (c) A statement of the specific objective(s) of the allocation 
action;
    (d) A list of the materials, services, or facilities to be 
allocated;
    (e) A list of the sources of the materials, services, or facilities 
that will be subject to the allocation action;
    (f) A detailed description of the provisions that will be included 
in the allocation orders, including the type(s) of allocation orders, 
the percentages or quantity of capacity or output to be allocated for 
each purpose, and the duration of the allocation action (e.g., 
anticipated start and end dates);
    (g) An evaluation of the impact of the proposed allocation action on 
the civilian market; and
    (h) Proposed actions, if any, to mitigate disruptions to civilian 
market operations.



Sec.  33.52  Controlling the general distribution of a material in
the civilian market.

    No allocation action by the Department of Transportation may be used 
to control the general distribution of a material in the civilian 
market, unless the Secretary of the Department of Transportation has:
    (a) Made a written finding that:
    (1) Such material is a scarce and critical material essential to the 
national defense, and

[[Page 418]]

    (2) The requirements of the national defense for such material 
cannot otherwise be met without creating a significant dislocation of 
the normal distribution of such material in the civilian market to such 
a degree as to create appreciable hardship;
    (b) Submitted the finding for the President's approval through the 
Assistant to the President and National Security Advisor and the 
Assistant to the President for Homeland Security and Counterterrorism; 
and
    (c) The President has approved the finding.



Sec.  33.53  Types of allocation orders.

    There are three types of allocation orders available for 
communicating allocation actions. These are:
    (a) Set-aside: An official action that requires a person to reserve 
materials, services, or facilities capacity in anticipation of the 
receipt of rated orders;
    (b) Directive: An official action that requires a person to take or 
refrain from taking certain actions in accordance with its provisions. 
For example, a directive can require a person to: stop or reduce 
production of an item; prohibit the use of selected materials, services, 
or facilities; or divert the use of materials, services, or facilities 
from one purpose to another; and
    (c) Allotment: An official action that specifies the maximum 
quantity of a material, service, or facility authorized for a specific 
use.



Sec.  33.54  Elements of an allocation order.

    Each allocation order must include:
    (a) A detailed description of the required allocation action(s);
    (b) Specific start and end calendar dates for each required 
allocation action;
    (c) The written signature on a manually placed order, or the digital 
signature or name on an electronically placed order, of the Secretary. 
The signature or use of the name certifies that the order is authorized 
under this part and that the requirements of this part are being 
followed;
    (d) A statement that reads in substance: ``This is an allocation 
order certified for national defense use. [Insert the legal name of the 
person receiving the order] is required to comply with this order, in 
accordance with the provisions of the Transportation Priorities and 
Allocations System regulation (49 CFR Part 33)''; and
    (e) A current copy of the Transportation Priorities and Allocations 
System regulation (49 CFR Part 33) as of the date of the allocation 
order.



Sec.  33.55  Mandatory acceptance of an allocation order.

    (a) Except as otherwise specified in this section, a person shall 
accept and comply with every allocation order received.
    (b) A person shall not discriminate against an allocation order in 
any manner such as by charging higher prices for materials, services, or 
facilities covered by the order or by imposing terms and conditions for 
contracts and orders involving allocated materials, services, or 
facilities that differ from the person's terms and conditions for 
contracts and orders for the materials, services, or facilities prior to 
receiving the allocation order.
    (c) If a person is unable to comply fully with the required 
action(s) specified in an allocation order, the person must notify the 
Department of Transportation immediately, explain the extent to which 
compliance is possible, and give the reasons why full compliance is not 
possible. If notification is given verbally, written or electronic 
confirmation must be provided within five (5) working days. Such 
notification does not release the person from complying with the order 
to the fullest extent possible, until the person is notified by the 
Department of Transportation that the order has been changed or 
cancelled.



Sec.  33.56  Changes or cancellations of an allocation order.

    An allocation order may be changed or canceled by an official action 
of the Department of Transportation.

[[Page 419]]



                       Subpart F_Official Actions



Sec.  33.60  General provisions.

    (a) The Department of Transportation may take specific official 
actions to implement the provisions of this part.
    (b) These official actions include, but are not limited to, Rating 
Authorizations, Directives, Planning Orders, and Memoranda of 
Understanding.



Sec.  33.61  Rating authorizations.

    (a) A Rating Authorization is an official action granting specific 
priority rating authority that:
    (1) Permits a person to place a priority rating on an order for an 
item or service not normally ratable under this part; or
    (2) Authorizes a person to modify a priority rating on a specific 
order or series of contracts or orders.
    (b) To request priority rating authority, see Sec.  33.41.



Sec.  33.62  Directives.

    (a) A Directive is an official action that requires a person to take 
or refrain from taking certain actions in accordance with its 
provisions.
    (b) A person must comply with each Directive issued. However, a 
person may not use or extend a Directive to obtain any items from a 
supplier, unless expressly authorized to do so in the Directive.
    (c) A Priorities Directive takes precedence over all DX-rated 
orders, DO-rated orders, and unrated orders previously or subsequently 
received, unless a contrary instruction appears in the Directive.
    (d) An Allocations Directive takes precedence over all Priorities 
Directives, DX-rated orders, DO-rated orders, and unrated orders 
previously or subsequently received, unless a contrary instruction 
appears in the Directive.



Sec.  33.63  Memoranda of Understanding.

    (a) A Memorandum of Understanding is an official action that may be 
issued in resolving special priorities assistance cases to reflect an 
agreement reached by all parties (the Department of Transportation, the 
Department of Commerce (if applicable), a Delegate Agency (if 
applicable), the supplier, and the customer).
    (b) A Memorandum of Understanding is not used to alter scheduling 
between rated orders, authorize the use of priority ratings, impose 
restrictions under this part, or take other official actions. Rather, 
Memoranda of Understanding are used to confirm production or shipping 
schedules that do not require modifications to other rated orders.



                          Subpart G_Compliance



Sec.  33.70  General provisions.

    (a) The Department of Transportation may take specific official 
actions for any reason necessary or appropriate to the enforcement or 
the administration of the Defense Production Act and other applicable 
statutes or this part. Such actions include Administrative Subpoenas, 
Demands for Information, and Inspection Authorizations.
    (b) Any person who places or receives a rated order or an allocation 
order must comply with the provisions of this part.
    (c) Willful violation of the provisions of title I or Section 705 of 
the Defense Production Act and other applicable statutes, this part, or 
an official action of the Department of Transportation, is a criminal 
act, punishable as provided in the Defense Production Act and other 
applicable statutes, and as set forth in section 33.74 of this part.



Sec.  33.71  Audits and investigations.

    (a) Audits and investigations are official actions involving the 
examination of books, records, documents, other writings and information 
to ensure that the provisions of the Defense Production Act and other 
applicable statutes, this part, and official actions have been properly 
followed. An audit or investigation may also include interviews and a 
systems evaluation to detect problems or failures in the implementation 
of this part.
    (b) When undertaking an audit, investigation, or other inquiry, the 
Department of Transportation shall:
    (1) Define the scope and purpose in the official action given to the 
person under investigation; and

[[Page 420]]

    (2) Have ascertained that the information sought or other adequate 
and authoritative data are not available from any Federal or other 
responsible agency.
    (c) In administering this part, the Department of Transportation may 
issue the following documents that constitute official actions:
    (1) Administrative Subpoenas. An Administrative Subpoena requires a 
person to appear as a witness before an official designated by the 
Department of Transportation to testify under oath on matters of which 
that person has knowledge relating to the enforcement or the 
administration of the Defense Production Act and other applicable 
statutes, this part, or official actions. An Administrative Subpoena may 
also require the production of books, papers, records, documents and 
physical objects or property.
    (2) Demands for Information. A Demand for Information requires a 
person to furnish to a duly authorized representative of the Department 
of Transportation any information necessary or appropriate to the 
enforcement or the administration of the Defense Production Act and 
other applicable statutes, this part, or official actions.
    (3) Inspection Authorizations. An Inspection Authorization requires 
a person to permit a duly authorized representative of the Department of 
Transportation to interview the person's employees or agents, to inspect 
books, records, documents, other writings, and information, including 
electronically-stored information, in the person's possession or control 
at the place where that person usually keeps them or otherwise, and to 
inspect a person's property when such interviews and inspections are 
necessary or appropriate to the enforcement or the administration of the 
Defense Production Act and related statutes, this part, or official 
actions.
    (d) The production of books, records, documents, other writings, and 
information will not be required at any place other than where they are 
usually kept if, prior to the return date specified in the 
Administrative Subpoena or Demand for Information, a duly authorized 
official of the Department of Transportation is furnished with copies of 
such material that are certified under oath to be true copies. As an 
alternative, a person may enter into a stipulation with a duly 
authorized official of the Department of Transportation as to the 
content of the material.
    (e) An Administrative Subpoena, Demand for Information, or 
Inspection Authorization, shall include the name, title, or official 
position of the person issuing the document and of the person to be 
served, the evidence sought to be adduced, and its general relevance to 
the scope and purpose of the audit, investigation, or other inquiry. If 
employees or agents are to be interviewed; if books, records, documents, 
other writings, or information are to be produced; or if property is to 
be inspected; the Administrative Subpoena, Demand for Information, or 
Inspection Authorization will describe them with particularity.
    (f) Service of documents shall be made in the following manner:
    (1) Service of a Demand for Information or Inspection Authorization 
shall be made personally, or by Certified Mail-Return Receipt Requested 
at the person's last known address. Service of an Administrative 
Subpoena shall be made personally. Personal service may also be made by 
leaving a copy of the document with someone at least 18 years old at the 
person's last known dwelling or place of business.
    (2) Service upon other than an individual may be made by serving a 
partner, corporate officer, or a managing or general agent authorized by 
appointment or by law to accept service of process. If an agent is 
served, a copy of the document shall be mailed to the person named in 
the document.
    (3) Any individual 18 years of age or over may serve an 
Administrative Subpoena, Demand for Information, or Inspection 
Authorization. When personal service is made, the individual making the 
service shall prepare an affidavit as to the manner in which service was 
made and the identity of the person served, and return the affidavit, 
and in the case of subpoenas, the original document, to the issuing 
officer. In case of failure to make service, the reasons for

[[Page 421]]

the failure shall be stated on the original document.
    (g) This section is neither intended to limit the authority of the 
Inspector General of the Department of Transportation to initiate and 
conduct audits and investigations nor confer additional authority beyond 
that provided by the Inspector General Act.



Sec.  33.72  Compulsory process.

    (a) If a person refuses to permit a duly authorized representative 
of the Department of Transportation to have access to any premises or 
source of information necessary to the administration or the enforcement 
of the Defense Production Act and other applicable statutes, or this 
part, the Department of Transportation representative may seek 
compulsory process. Compulsory process means the institution of 
appropriate legal action, including ex parte application for an 
inspection warrant or its equivalent, in any forum of appropriate 
jurisdiction.
    (b) Compulsory process may be sought in advance of an audit, 
investigation, or other inquiry, if, in the judgment of the Department 
of Transportation there is reason to believe that a person will refuse 
to permit an audit, investigation, or other inquiry, or that other 
circumstances exist which make such process desirable or necessary.



Sec.  33.73  Notification of failure to comply.

    (a) At the conclusion of an audit, investigation, or other inquiry, 
or at any other time, the Department of Transportation may inform the 
person in writing where compliance with the requirements of the Defense 
Production Act and other applicable statutes, this part, or an official 
action were not met.
    (b) In cases where the Department of Transportation determines that 
failure to comply with the provisions of the Defense Production Act and 
other applicable statutes, this part, or an official action was 
inadvertent, the person may be informed in writing of the particulars 
involved and the corrective action to be taken. Failure to take 
corrective action may then be construed as a willful violation of the 
Defense Production Act and other applicable statutes, this part, or an 
official action.



Sec.  33.74  Violations, penalties, and remedies.

    (a) Willful violation of the provisions of title 1 or section 705 or 
707 of the Defense Production Act, the priorities provisions of the 
Selective Service Act, this part, or an official action, is a crime and 
upon conviction, a person may be punished by fine or imprisonment, or 
both. The maximum penalty currently provided by the Defense Production 
Act is a $10,000 fine, or one year in prison, or both. The maximum 
penalty currently provided by the Selective Service Act is a $50,000 
fine, or three years in prison, or both.
    (b) The Government may also seek an injunction from a court of 
appropriate jurisdiction to prohibit the continuance of any violation 
of, or to enforce compliance with, the Defense Production Act, this 
part, or an official action.
    (c) In order to secure the effective enforcement of the Defense 
Production Act and other applicable statutes, this part, and official 
actions, the following are prohibited:
    (1) No person may solicit, influence or permit another person to 
perform any act prohibited by, or to omit any act required by, the 
Defense Production Act and other applicable statutes, this part, or an 
official action.
    (2) No person may conspire or act in concert with any other person 
to perform any act prohibited by, or to omit any act required by, the 
Defense Production Act and other applicable statutes, this part, or an 
official action.
    (3) No person shall deliver any item or perform any service if the 
person knows or has reason to believe that the item will be accepted, 
redelivered, held, or used in violation of the Defense Production Act 
and other applicable statutes, this part, or an official action. In such 
instances, the person must immediately notify the Department of 
Transportation that, in accordance with this provision, delivery of the 
item or performance of the service has not been made.

[[Page 422]]



Sec.  33.75  Compliance conflicts.

    If compliance with any provision of the Defense Production Act and 
other applicable statutes, this part, or an official action would 
prevent a person from filling a rated order or from complying with 
another provision of the Defense Production Act and other applicable 
statutes, this part, or an official action, the person must immediately 
notify the Department of Transportation for resolution of the conflict.



             Subpart H_Adjustments, Exceptions, and Appeals



Sec.  33.80  Adjustments or exceptions.

    (a) A person may submit a request to the Defense Production Act 
Activities Coordinator, Office of Intelligence Security, and Emergency 
Response, 1200 New Jersey Avenue SE., Washington, DC 20590, for an 
adjustment or exception on the ground that:
    (1) A provision of this part or an official action results in an 
undue or exceptional hardship on that person not suffered generally by 
others in similar situations and circumstances; or
    (2) The consequences of following a provision of this part or an 
official action are contrary to the intent of the Defense Production Act 
and other applicable statutes, or this part.
    (b) Each request for adjustment or exception must be in writing and 
contain a complete statement of all the facts and circumstances related 
to the provision of this part or official action from which adjustment 
or exception is sought and a full and precise statement of the reasons 
why relief should be provided.
    (c) The submission of a request for adjustment or exception shall 
not relieve any person from the obligation of complying with the 
provision of this part or official action in question while the request 
is being considered unless such interim relief is granted in writing by 
the Office of Intelligence, Security, and Emergency Response.
    (d) A decision of the Defense Production Act Activities Coordinator 
under this section may be appealed to the Assistant Secretary for 
Administration. (For information on the appeal procedure, see Sec.  
33.81.)



Sec.  33.81  Appeals.

    (a) Any person who has had a request for adjustment or exception 
denied by the Defense Production Act Activities Coordinator under Sec.  
33.80, may appeal to the Department of Transportation's Assistant 
Secretary for Administration, who shall review and reconsider the 
denial.
    (b)(1) Except as provided in paragraph (b)(2) of this section, an 
appeal must be received by the Assistant Secretary for Administration no 
later than 45 days after receipt of a written notice of denial from the 
Defense Production Act Activities Coordinator. After this 45-day period, 
an appeal may be accepted at the discretion of the Assistant Secretary 
for Administration for good cause shown.
    (2) For requests for adjustment or exception involving rated orders 
placed for the purpose of emergency preparedness, an appeal must be 
received by the Assistant Secretary for Administration, no later than 
five (5) days after receipt of a written notice of denial from the 
Defense Production Act Activities Coordinator. Contract performance 
under the order shall not be stayed pending resolution of the appeal.
    (c) Each appeal must be in writing and contain a complete statement 
of all the facts and circumstances related to the action appealed from, 
all necessary documents, and a full and precise statement of the reasons 
the decision should be modified or reversed.
    (d) In addition to the written materials submitted in support of an 
appeal, an appellant may request, in writing, an opportunity for an 
informal hearing. This request may be granted or denied at the 
discretion of the Assistant Secretary for Administration.
    (e) When a hearing is granted, the Assistant Secretary for 
Administration may designate an employee of the Office of the Senior 
Procurement Executive to conduct the hearing and to prepare a report. 
The hearing officer shall determine all procedural questions and impose 
such time or other limitations deemed reasonable. In the event that

[[Page 423]]

the hearing officer decides that a printed transcript is necessary, all 
expenses shall be borne by the appellant.
    (f) When determining an appeal, the Assistant Secretary for 
Administration may consider all information submitted during the appeal 
as well as any recommendations, reports, or other relevant information 
and documents available to the Department of Transportation, or consult 
with any other persons or groups.
    (g) The submission of an appeal under this section shall not relieve 
any person from the obligation of complying with the provision of this 
part or official action in question while the appeal is being considered 
unless such relief is granted in writing by the Assistant Secretary for 
Administration.
    (h) The decision of the Assistant Secretary for Administration shall 
be made within five (5) working days after receipt of the appeal, or 
within one (1) working day for appeals pertaining to emergency 
preparedness and shall be the final administrative action. It shall be 
issued to the appellant in writing with a statement of the reasons for 
the decision.



                   Subpart I_Miscellaneous Provisions



Sec.  33.90  Protection against claims.

    A person shall not be held liable for damages or penalties for any 
act or failure to act resulting directly or indirectly from compliance 
with any provision of this part, or an official action, notwithstanding 
that such provision or action shall subsequently be declared invalid by 
judicial or other competent authority.



Sec.  33.91  Records and reports.

    (a) Persons are required to make and preserve for at least three 
years, accurate and complete records of any transaction covered by this 
part or an official action.
    (b) Records must be maintained in sufficient detail to permit the 
determination, upon examination, of whether each transaction complies 
with the provisions of this part or any official action. However, this 
part does not specify any particular method or system to be used.
    (c) Records required to be maintained by this part must be made 
available for examination on demand by duly authorized representatives 
of the Department of Transportation as provided in Sec.  33.71.
    (d) In addition, persons must develop, maintain, and submit any 
other records and reports to the Department of Transportation that may 
be required for the administration of the Defense Production Act and 
other applicable statutes, and this part.
    (e) Section 705(d) of the Defense Production Act, as implemented by 
Executive Order 13603, provides that information obtained under this 
section which the Secretary deems confidential, or with reference to 
which a request for confidential treatment is made by the person 
furnishing such information, shall not be published or disclosed unless 
the Secretary determines that the withholding of this information is 
contrary to the interest of the national defense. Information required 
to be submitted to the Department of Transportation in connection with 
the enforcement or administration of the Defense Production Act, this 
part, or an official action, is deemed to be confidential under section 
705(d) of the Defense Production Act and shall be handled in accordance 
with applicable Federal law.



Sec.  33.92  Applicability of this part and official actions.

    (a) This part and all official actions, unless specifically stated 
otherwise, apply to transactions in any State, territory, or possession 
of the United States and the District of Columbia.
    (b) This part and all official actions apply not only to deliveries 
to other persons but also include deliveries to affiliates and 
subsidiaries of a person and deliveries from one branch, division, or 
section of a single entity to another branch, division, or section under 
common ownership or control.
    (c) This part and its schedules shall not be construed to affect any 
administrative actions taken by the Department of Transportation, or any 
outstanding contracts or orders placed pursuant to any of the parts, 
orders, schedules or delegations of authority previously issued by the 
Department of Transportation pursuant to authority

[[Page 424]]

granted by the President to the Department under in the Defense 
Production Act. Such actions, contracts, or orders shall continue in 
full force and effect under this part unless modified or terminated by 
proper authority.



Sec.  33.93  Communications.

    All communications concerning this part, including requests for 
copies of the part and explanatory information, requests for guidance or 
clarification, and requests for adjustment or exception shall be 
addressed to the Defense Production Act Activities Coordinator, Office 
of Intelligence, Security and Emergency Response, 1200 New Jersey Avenue 
SE., Washington, DC 20590.



           Sec. Appendix I to Part 33--Sample Form OST F 1254

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[GRAPHIC] [TIFF OMITTED] TR01OC12.000


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[GRAPHIC] [TIFF OMITTED] TR01OC12.001


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[GRAPHIC] [TIFF OMITTED] TR01OC12.002


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[GRAPHIC] [TIFF OMITTED] TR01OC12.003


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[GRAPHIC] [TIFF OMITTED] TR01OC12.004


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[GRAPHIC] [TIFF OMITTED] TR01OC12.005



              Sec. Schedule 1 to Part 33--Approved Programs

    The programs listed in this schedule have been approved for 
priorities and allocations support under this part by DoD, DOE, or DHS, 
in accordance with section 203 of Executive Order 13603. They have equal 
preferential status.
    Approved Program [Reserved]
    Program Identification Symbol [Reserved]

[[Page 431]]



PART 37_TRANSPORTATION SERVICES FOR INDIVIDUALS WITH DISABILITIES
(ADA)--Table of Contents



                            Subpart A_General

Sec.
37.1 Purpose.
37.3 Definitions.
37.5 Nondiscrimination.
37.7 Standards for accessible vehicles.
37.9 Standards for accessible transportation facilities.
37.11 Administrative enforcement.
37.13 Effective date for certain vehicle specifications.
37.15 Interpretations and guidance.
37.16 [Reserved]
37.17 Designation of responsible employee and adoption of complaint 
          procedures.
37.18-37.19 [Reserved]

                         Subpart B_Applicability

37.21 Applicability: General.
37.23 Service under contract.
37.25 University transportation systems.
37.27 Transportation for elementary and secondary education systems.
37.29 Private entities providing taxi service.
37.31 Vanpools.
37.33 Airport transportation systems.
37.35 Supplemental service for other transportation modes.
37.37 Other applications.
37.39 [Reserved]

                   Subpart C_Transportation Facilities

37.41 Construction of transportation facilities by public entities.
37.42 Service in an Integrated Setting to Passengers at Intercity, 
          Commuter, and High-Speed Rail Station Platforms Constructed or 
          Altered After February 1, 2012.
37.43 Alteration of transportation facilities by public entities.
37.45 Construction and alteration of transportation facilities by 
          private entities.
37.47 Key stations in light and rapid rail systems.
37.49 Designation of responsible person(s) for intercity and commuter 
          rail stations.
37.51 Key stations in commuter rail systems.
37.53 Exception for New York and Philadelphia.
37.55 Intercity rail station accessibility.
37.57 Required cooperation.
37.59 Differences in accessibility completion dates.
37.61 Public transportation programs and activities in existing 
          facilities.
37.63-37.69 [Reserved]

     Subpart D_Acquisition of Accessible Vehicles by Public Entities

37.71 Purchase or lease of new non-rail vehicles by public entities 
          operating fixed route systems.
37.73 Purchase or lease of used non-rail vehicles by public entities 
          operating fixed route systems.
37.75 Remanufacture of non-rail vehicles and purchase or lease of 
          remanufactured non-rail vehicles by public entities operating 
          fixed route systems.
37.77 Purchase or lease of new non-rail vehicles by public entities 
          operating a demand responsive system for the general public.
37.79 Purchase or lease of new rail vehicles by public entities 
          operating rapid or light rail systems.
37.81 Purchase or lease of used rail vehicles by public entities 
          operating rapid or light rail systems.
37.83 Remanufacture of rail vehicles and purchase or lease of 
          remanufactured rail vehicles by public entities operating 
          rapid or light rail systems.
37.85 Purchase or lease of new intercity and commuter rail cars.
37.87 Purchase or lease of used intercity and commuter rail cars.
37.89 Remanufacture of intercity and commuter rail cars and purchase or 
          lease of remanufactured intercity and commuter rail cars.
37.91 Wheelchair locations and food service on intercity rail trains.
37.93 One car per train rule.
37.95 Ferries and other passenger vessels operated by public entities. 
          [Reserved]
37.97-37.99 [Reserved]

    Subpart E_Acquisition of Accessible Vehicles by Private Entities

37.101 Purchase or lease of vehicles by private entities not primarily 
          engaged in the business of transporting people.
37.103 Purchase or lease of new non-rail vehicles by private entities 
          primarily engaged in the business of transporting people.
37.105 Equivalent service standard.
37.107 Acquisition of passenger rail cars by private entities primarily 
          engaged in the business of transporting people.
37.109 Ferries and other passenger vessels operated by private entities. 
          [Reserved]
37.111-37.119 [Reserved]

      Subpart F_Paratransit as a Complement to Fixed Route Service

37.121 Requirement for comparable complementary paratransit service.
37.123 ADA paratransit eligibility: Standards.

[[Page 432]]

37.125 ADA paratransit eligibility: Process.
37.127 Complementary paratransit service for visitors.
37.129 Types of service.
37.131 Service criteria for complementary paratransit.
37.133 Subscription service.
37.135 Submission of paratransit plan.
37.137 Paratransit plan development.
37.139 Plan contents.
37.141 Requirements for a joint paratransit plan.
37.143 Paratransit plan implementation.
37.145 State comment on plans.
37.147 Considerations during FTA review.
37.149 Disapproved plans.
37.151 Waiver for undue financial burden.
37.153 FTA waiver determination.
37.155 Factors in decision to grant an undue financial burden waiver.
37.157-37.159 [Reserved]

                     Subpart G_Provision of Service

37.161 Maintenance of accessible features: General.
37.163 Keeping vehicle lifts in operative condition: Public entities.
37.165 Lift and securement use.
37.167 Other service requirements.
37.169 Process to be used by public entities providing designated public 
          transportation service in considering requests for reasonable 
          modification.
37.171 Equivalency requirement for demand responsive service operated by 
          private entities not primarily engaged in the business of 
          transporting people.
37.173 Training requirements.

                  Subpart H_Over-the-Road Buses (OTRBs)

37.181 Applicability dates.
37.183 Purchase or lease of new OTRBs by operators of fixed-route 
          systems.
37.185 Fleet accessibility requirement for OTRB fixed-route systems of 
          large operators.
37.187 Interline service.
37.189 Service requirement for OTRB demand-responsive systems.
37.191 Special provision for small mixed-service operators.
37.193 Interim service requirements.
37.195 Purchase or lease of OTRBs by private entities not primarily in 
          the business of transporting people.
37.197 Remanufactured OTRBs.
37.199 [Reserved]
37.201 Intermediate and rest stops.
37.203 Lift maintenance.
37.205 Additional passengers who use wheelchairs.
37.207 Discriminatory practices.
37.209 Training and other requirements.
37.211 Effect of NHTSA and FHWA safety rules.
37.213 Information collection requirements.
37.215 Review of requirements.

Appendix A to Subpart H of Part 37--Service Request Form
Appendix A to Part 37--Modifications to Standards for Accessible 
          Transportation Facilities
Appendix B to Part 37--FTA Regional Offices
Appendix C to Part 37--Certifications
Appendix D to Part 37--Construction and Interpretation of Provisions of 
          49 CFR Part 37
Appendix E to Part 37--Reasonable modification requests

    Authority: 42 U.S.C. 12101-12213; 49 U.S.C. 322.

    Source: 56 FR 45621, Sept. 6, 1991, unless otherwise noted.



                            Subpart A_General



Sec.  37.1  Purpose.

    The purpose of this part is to implement the transportation and 
related provisions of titles II and III of the Americans with 
Disabilities Act of 1990.



Sec.  37.3  Definitions.

    As used in this part:
    Accessible means, with respect to vehicles and facilities, complying 
with the accessibility requirements of parts 37 and 38 of this title.
    The Act or ADA means the Americans with Disabilities Act of 1990 
(Pub. L. 101-336, 104 Stat. 327, 42 U.S.C. 12101-12213 and 47 U.S.C. 225 
and 611), as it may be amended from time to time.
    Administrator means Administrator of the Federal Transit 
Administration, or his or her designee.
    Alteration means a change to an existing facility, including, but 
not limited to, remodeling, renovation, rehabilitation, reconstruction, 
historic restoration, changes or rearrangement in structural parts or 
elements, and changes or rearrangement in the plan configuration of 
walls and full-height partitions. Normal maintenance, reroofing, 
painting or wallpapering, asbestos removal, or changes to mechanical or 
electrical systems are not alterations unless they affect the usability 
of the building or facility.
    Automated guideway transit system or AGT means a fixed-guideway 
transit system which operates with automated

[[Page 433]]

(driverless) individual vehicles or multi-car trains. Service may be on 
a fixed schedule or in response to a passenger-activated call button.
    Auxiliary aids and services includes:
    (1) Qualified interpreters, notetakers, transcription services, 
written materials, telephone headset amplifiers, assistive listening 
devices, assistive listening systems, telephones compatible with hearing 
aids, closed caption decoders, closed and open captioning, text 
telephones (also known as telephone devices for the deaf, or TDDs), 
videotext displays, or other effective methods of making aurally 
delivered materials available to individuals with hearing impairments;
    (2) Qualified readers, taped texts, audio recordings, Brailled 
materials, large print materials, or other effective methods of making 
visually delivered materials available to individuals with visual 
impairments;
    (3) Acquisition or modification of equipment or devices; or
    (4) Other similar services or actions.
    Bus means any of several types of self-propelled vehicles, generally 
rubber-tired, intended for use on city streets, highways, and busways, 
including but not limited to minibuses, forty- and thirty-foot buses, 
articulated buses, double-deck buses, and electrically powered trolley 
buses, used by public entities to provide designated public 
transportation service and by private entities to provide transportation 
service including, but not limited to, specified public transportation 
services. Self-propelled, rubber-tired vehicles designed to look like 
antique or vintage trolleys are considered buses.
    Commerce means travel, trade, transportation, or communication among 
the several states, between any foreign country or any territory or 
possession and any state, or between points in the same state but 
through another state or foreign country.
    Commuter authority means any state, local, regional authority, 
corporation, or other entity established for purposes of providing 
commuter rail transportation (including, but not necessarily limited to, 
the New York Metropolitan Transportation Authority, the Connecticut 
Department of Transportation, the Maryland Department of Transportation, 
the Southeastern Pennsylvania Transportation Authority, the New Jersey 
Transit Corporation, the Massachusetts Bay Transportation Authority, the 
Port Authority Trans-Hudson Corporation, and any successor agencies) and 
any entity created by one or more such agencies for the purposes of 
operating, or contracting for the operation of, commuter rail 
transportation.
    Commuter bus service means fixed route bus service, characterized by 
service predominantly in one direction during peak periods, limited 
stops, use of multi-ride tickets, and routes of extended length, usually 
between the central business district and outlying suburbs. Commuter bus 
service may also include other service, characterized by a limited route 
structure, limited stops, and a coordinated relationship to another mode 
of transportation.
    Commuter rail car means a rail passenger car obtained by a commuter 
authority for use in commuter rail transportation.
    Commuter rail transportation means short-haul rail passenger service 
operating in metropolitan and suburban areas, whether within or across 
the geographical boundaries of a state, usually characterized by reduced 
fare, multiple ride, and commutation tickets and by morning and evening 
peak period operations. This term does not include light or rapid rail 
transportation.
    Demand responsive system means any system of transporting 
individuals, including the provision of designated public transportation 
service by public entities and the provision of transportation service 
by private entities, including but not limited to specified public 
transportation service, which is not a fixed route system.
    Designated public transportation means transportation provided by a 
public entity (other than public school transportation) by bus, rail, or 
other conveyance (other than transportation by aircraft or intercity or 
commuter rail transportation) that provides the general public with 
general or special service, including charter service, on a regular and 
continuing basis.

[[Page 434]]

    Direct threat means a significant risk to the health or safety of 
others that cannot be eliminated by a modification of policies, 
practices, procedures, or by the provision of auxiliary aids or 
services.
    Disability means, with respect to an individual, a physical or 
mental impairment that substantially limits one or more of the major 
life activities of such individual; a record of such an impairment; or 
being regarded as having such an impairment.
    (1) The phrase physical or mental impairment means--
    (i) Any physiological disorder or condition, cosmetic disfigurement, 
or anatomical loss affecting one or more of the following body systems: 
neurological, musculoskeletal, special sense organs, respiratory 
including speech organs, cardiovascular, reproductive, digestive, 
genito-urinary, hemic and lymphatic, skin, and endocrine;
    (ii) Any mental or psychological disorder, such as mental 
retardation, organic brain syndrome, emotional or mental illness, and 
specific learning disabilities;
    (iii) The term physical or mental impairment includes, but is not 
limited to, such contagious or noncontagious diseases and conditions as 
orthopedic, visual, speech, and hearing impairments; cerebral palsy, 
epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, 
diabetes, mental retardation, emotional illness, specific learning 
disabilities, HIV disease, tuberculosis, drug addiction and alcoholism;
    (iv) The phrase physical or mental impairment does not include 
homosexuality or bisexuality.
    (2) The phrase major life activities means functions such as caring 
for one's self, performing manual tasks, walking, seeing, hearing, 
speaking, breathing, learning, and work.
    (3) The phrase has a record of such an impairment means has a 
history of, or has been misclassified as having, a mental or physical 
impairment that substantially limits one or more major life activities.
    (4) The phrase is regarded as having such an impairment means--
    (i) Has a physical or mental impairment that does not substantially 
limit major life activities, but which is treated by a public or private 
entity as constituting such a limitation;
    (ii) Has a physical or mental impairment that substantially limits a 
major life activity only as a result of the attitudes of others toward 
such an impairment; or
    (iii) Has none of the impairments defined in paragraph (1) of this 
definition but is treated by a public or private entity as having such 
an impairment.
    (5) The term disability does not include--
    (i) Transvestism, transsexualism, pedophilia, exhibitionism, 
voyeurism, gender identity disorders not resulting from physical 
impairments, or other sexual behavior disorders;
    (ii) Compulsive gambling, kleptomania, or pyromania;
    (iii) Psychoactive substance abuse disorders resulting from the 
current illegal use of drugs.
    Facility means all or any portion of buildings, structures, sites, 
complexes, equipment, roads, walks, passageways, parking lots, or other 
real or personal property, including the site where the building, 
property, structure, or equipment is located.
    Fixed route system means a system of transporting individuals (other 
than by aircraft), including the provision of designated public 
transportation service by public entities and the provision of 
transportation service by private entities, including, but not limited 
to, specified public transportation service, on which a vehicle is 
operated along a prescribed route according to a fixed schedule.
    FT Act means the Federal Transit Act of 1964, as amended (49 U.S.C. 
App. 1601 et seq.).
    High speed rail means a rail service having the characteristics of 
intercity rail service which operates primarily on a dedicated guideway 
or track not used, for the most part, by freight, including, but not 
limited to, trains on welded rail, magnetically levitated (maglev) 
vehicles on a special guideway, or other advanced technology vehicles, 
designed to travel at speeds in excess of those possible on other types 
of railroads.
    Individual with a disability means a person who has a disability, 
but does

[[Page 435]]

not include an individual who is currently engaging in the illegal use 
of drugs, when a public or private entity acts on the basis of such use.
    Intercity rail passenger car means a rail car, intended for use by 
revenue passengers, obtained by the National Railroad Passenger 
Corporation (Amtrak) for use in intercity rail transportation.
    Intercity rail transportation means transportation provided by 
Amtrak.
    Light rail means a streetcar-type vehicle operated on city streets, 
semi-exclusive rights of way, or exclusive rights of way. Service may be 
provided by step-entry vehicles or by level boarding.
    New vehicle means a vehicle which is offered for sale or lease after 
manufacture without any prior use.
    Operates includes, with respect to a fixed route or demand 
responsive system, the provision of transportation service by a public 
or private entity itself or by a person under a contractual or other 
arrangement or relationship with the entity.
    Origin-to-destination service means providing service from a 
passenger's origin to the passenger's destination. A provider may 
provide ADA complementary paratransit in a curb-to-curb or door-to-door 
mode. When an ADA paratransit operator chooses curb-to-curb as its 
primary means of providing service, it must provide assistance to those 
passengers who need assistance beyond the curb in order to use the 
service unless such assistance would result in in a fundamental 
alteration or direct threat.
    Over-the-road bus means a bus characterized by an elevated passenger 
deck located over a baggage compartment.
    Paratransit means comparable transportation service required by the 
ADA for individuals with disabilities who are unable to use fixed route 
transportation systems.
    Private entity means any entity other than a public entity.
    Public entity means:
    (1) Any state or local government;
    (2) Any department, agency, special purpose district, or other 
instrumentality of one or more state or local governments; and
    (3) The National Railroad Passenger Corporation (Amtrak) and any 
commuter authority.
    Purchase or lease, with respect to vehicles, means the time at which 
an entity is legally obligated to obtain the vehicles, such as the time 
of contract execution.
    Public school transportation means transportation by schoolbus 
vehicles of schoolchildren, personnel, and equipment to and from a 
public elementary or secondary school and school-related activities.
    Rapid rail means a subway-type transit vehicle railway operated on 
exclusive private rights of way with high level platform stations. Rapid 
rail also may operate on elevated or at grade level track separated from 
other traffic.
    Remanufactured vehicle means a vehicle which has been structurally 
restored and has had new or rebuilt major components installed to extend 
its service life.
    Secretary means the Secretary of Transportation or his/her designee.
    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.
    Service animal means any guide dog, signal dog, or other animal 
individually trained to work or perform tasks for an individual with a 
disability, including, but not limited to, guiding individuals with 
impaired vision, alerting individuals with impaired hearing to intruders 
or sounds, providing minimal protection or rescue work, pulling a 
wheelchair, or fetching dropped items.
    Small operator means, in the context of over-the-road buses (OTRBs), 
a private entity primarily in the business of transporting people that 
is not a Class I motor carrier. To determine whether an operator has 
sufficient average annual gross transportation operating revenues to be 
a Class I motor carrier, its revenues are combined with those of any 
other OTRB operator with which it is affiliated.
    Solicitation means the closing date for the submission of bids or 
offers in a procurement.
    Specified public transportation means transportation by bus, rail, 
or any

[[Page 436]]

other conveyance (other than aircraft) provided by a private entity to 
the general public, with general or special service (including charter 
service) on a regular and continuing basis.
    Station means, with respect to intercity and commuter rail 
transportation, the portion of a property located appurtenant to a right 
of way on which intercity or commuter rail transportation is operated, 
where such portion is used by the general public and is related to the 
provision of such transportation, including passenger platforms, 
designated waiting areas, restrooms, and, where a public entity 
providing rail transportation owns the property, concession areas, to 
the extent that such public entity exercises control over the selection, 
design, construction, or alteration of the property, but this term does 
not include flag stops (i.e., stations which are not regularly scheduled 
stops but at which trains will stop to board or detrain passengers only 
on signal or advance notice).
    Used vehicle means a vehicle with prior use.
    Vanpool means a voluntary commuter ridesharing arrangement, using 
vans with a seating capacity greater than 7 persons (including the 
driver) or buses, which provides transportation to a group of 
individuals traveling directly from their homes to their regular places 
of work within the same geographical area, and in which the commuter/
driver does not receive compensation beyond reimbursement for his or her 
costs of providing the service.
    Vehicle, as the term is applied to private entities, does not 
include a rail passenger car, railroad locomotive, railroad freight car, 
or railroad caboose, or other rail rolling stock described in section 
242 of title III of the Act.
    Wheelchair means a mobility aid belonging to any class of three- or 
more-wheeled devices, usable indoors, designed or modified for and used 
by individuals with mobility impairments, whether operated manually or 
powered.

[56 FR 45621, Sept. 6, 1991, as amended at 58 FR 63101, Nov. 30, 1993; 
61 FR 25415, May 21, 1996; 63 FR 51690, Sept. 28, 1998; 76 FR 57935, 
Sept. 19, 2011; 79 FR 21405, Apr. 16, 2014; 80 FR 13260, Mar. 13, 2015]



Sec.  37.5  Nondiscrimination.

    (a) No entity shall discriminate against an individual with a 
disability in connection with the provision of transportation service.
    (b) Notwithstanding the provision of any special transportation 
service to individuals with disabilities, an entity shall not, on the 
basis of disability, deny to any individual with a disability the 
opportunity to use the entity's transportation service for the general 
public, if the individual is capable of using that service.
    (c) An entity shall not require an individual with a disability to 
use designated priority seats, if the individual does not choose to use 
these seats.
    (d) An entity shall not impose special charges, not authorized by 
this part, on individuals with disabilities, including individuals who 
use wheelchairs, for providing services required by this part or 
otherwise necessary to accommodate them.
    (e) An entity shall not require that an individual with disabilities 
be accompanied by an attendant.
    (f) Private entities that are primarily engaged in the business of 
transporting people and whose operations affect commerce shall not 
discriminate against any individual on the basis of disability in the 
full and equal enjoyment of specified transportation services. This 
obligation includes, with respect to the provision of transportation 
services, compliance with the requirements of the rules of the 
Department of Justice concerning eligibility criteria, making reasonable 
modifications, providing auxiliary aids and services, and removing 
barriers (28 CFR 36.301-36.306).
    (g) An entity shall not refuse to serve an individual with a 
disability or require anything contrary to this part because its 
insurance company conditions coverage or rates on the absence of 
individuals with disabilities or requirements contrary to this part.
    (h) It is not discrimination under this part for an entity to refuse 
to provide service to an individual with disabilities because that 
individual engages in violent, seriously disruptive, or illegal conduct, 
or represents a direct threat

[[Page 437]]

to the health or safety of others. However, an entity shall not refuse 
to provide service to an individual with disabilities solely because the 
individual's disability results in appearance or involuntary behavior 
that may offend, annoy, or inconvenience employees of the entity or 
other persons.
    (i) Public and private entity distinctions.-- (1) Private entity-
private transport. Private entities that are primarily engaged in the 
business of transporting people and whose operations affect commerce 
shall not discriminate against any individual on the basis of disability 
in the full and equal enjoyment of specified transportation services. 
This obligation includes, with respect to the provision of 
transportation services, compliance with the requirements of the rules 
of the Department of Justice concerning eligibility criteria, making 
reasonable modifications, providing auxiliary aids and services, and 
removing barriers (28 CFR 36.301-36.306).
    (2) Private entity-public transport. Private entities that provide 
specified public transportation shall make reasonable modifications in 
policies, practices, or procedures, when the modifications are necessary 
to afford goods, services, facilities, privileges, advantages, or 
accommodations to individuals with disabilities, unless the entity can 
demonstrate that making the modifications would fundamentally alter the 
nature of the goods, services, facilities, privileges, advantages, or 
accommodations.
    (3) Public entity-public transport. Public entities that provide 
designated public transportation shall make reasonable modifications in 
policies, practices, or procedures when the modifications are necessary 
to avoid discrimination on the basis of disability or to provide program 
accessibility to their services, subject to the limitations of Sec.  
37.169(c)(1)-(3). This requirement applies to the means public entities 
use to meet their obligations under all provisions of this part.
    (4) In choosing among alternatives for meeting nondiscrimination and 
accessibility requirements with respect to new, altered, or existing 
facilities, or designated or specified transportation services, public 
and private entities shall give priority to those methods that offer 
services, programs, and activities to qualified individuals with 
disabilities in the most integrated setting appropriate to the needs of 
individuals with disabilities.

[56 FR 45621, Sept. 6, 1991, as amended at 80 FR 13260, Mar. 13, 2015]



Sec.  37.7  Standards for accessible vehicles.

    (a) For purposes of this part, a vehicle shall be considered to be 
readily accessible to and usable by individuals with disabilities if it 
meets the requirements of this part and the standards set forth in part 
38 of this title.
    (b)(1) For purposes of implementing the equivalent facilitation 
provision in Sec.  38.2 of this subtitle, the following parties may 
submit to the Administrator of the applicable operating administration a 
request for a determination of equivalent facilitation:
    (i) A public or private entity that provides transportation services 
and is subject to the provisions of subpart D or subpart E this part; or
    (ii) The manufacturer of a vehicle or a vehicle component or 
subsystem to be used by such entity to comply with this part.
    (2) The requesting party shall provide the following information 
with its request:
    (i) Entity name, address, contact person and telephone;
    (ii) Specific provision of part 38 of this title concerning which 
the entity is seeking a determination of equivalent facilitation.
    (iii) [Reserved]
    (iv) Alternative method of compliance, with demonstration of how the 
alternative meets or exceeds the level of accessibility or usability of 
the vehicle provided in part 38 of this subtitle; and
    (v) Documentation of the public participation used in developing an 
alternative method of compliance.
    (3) In the case of a request by a public entity that provides 
transportation services subject to the provisions of subpart D of this 
part, the required public participation shall include the following:

[[Page 438]]

    (i) The entity shall contact individuals with disabilities and 
groups representing them in the community. Consultation with these 
individuals and groups shall take place at all stages of the development 
of the request for equivalent facilitation. All documents and other 
information concerning the request shall be available, upon request, to 
members of the public.
    (ii) The entity shall make its proposed request available for public 
comment before the request is made final or transmitted to DOT. In 
making the request available for public review, the entity shall ensure 
that it is available, upon request, in accessible formats.
    (iii) The entity shall sponsor at least one public hearing on the 
request and shall provide adequate notice of the hearing, including 
advertisement in appropriate media, such as newspapers of general and 
special interest circulation and radio announcements.
    (4) In the case of a request by a private entity that provides 
transportation services subject to the provisions of subpart E of this 
part or a manufacturer, the private entity or manufacturer shall 
consult, in person, in writing, or by other appropriate means, with 
representatives of national and local organizations representing people 
with those disabilities who would be affected by the request.
    (5) A determination of compliance will be made by the Administrator 
of the concerned operating administration on a case-by-case basis, with 
the concurrence of the Assistant Secretary for Policy and International 
Affairs.
    (6) Determinations of equivalent facilitation are made only with 
respect to vehicles or vehicle components used in the provision of 
transportation services covered by subpart D or subpart E of this part, 
and pertain only to the specific situation concerning which the 
determination is made. Entities shall not cite these determinations as 
indicating that a product or method constitute equivalent facilitations 
in situations other than those to which the determinations specifically 
pertain. Entities shall not claim that a determination of equivalent 
facilitation indicates approval or endorsement of any product or method 
by the Federal government, the Department of Transportation, or any of 
its operating administrations.
    (c) Over-the-road buses acquired by public entities (or by a 
contractor to a public entity as provided in Sec.  37.23 of this part) 
shall comply with Sec.  38.23 and subpart G of part 38 of this title.

[56 FR 45621, Sept. 6, 1991, as amended at 58 FR 63101, Nov. 30, 1993; 
61 FR 25416, May 21, 1996]



Sec.  37.9  Standards for accessible transportation facilities.

    (a) For purposes of this part, a transportation facility shall be 
considered to be readily accessible to and usable by individuals with 
disabilities if it meets the requirements of this part and the 
requirements set forth in Appendices B and D to 36 CFR part 1191, which 
apply to buildings and facilities covered by the Americans with 
Disabilities Act, as modified by Appendix A to this part.
    (b) Facility alterations begun before January 26, 1992, in a good 
faith effort to make a facility accessible to individuals with 
disabilities may be used to meet the key station requirements set forth 
in Sec. Sec.  37.47 and 37.51 of this part, even if these alterations 
are not consistent with the requirements set forth in Appendices B and D 
to 36 CFR part 1191 and Appendix A to this part, if the modifications 
complied with the Uniform Federal Accessibility Standards (UFAS) or ANSI 
A117.1(1980) (American National Standards Specification for Making 
Buildings and Facilities Accessible to and Usable by the Physically 
Handicapped). This paragraph applies only to alterations of individual 
elements and spaces and only to the extent that provisions covering 
those elements or spaces are contained in UFAS or ANSI A117.1, as 
applicable.
    (c) (1) New construction or alterations of buildings or facilities 
on which construction has begun, or all approvals for final design have 
been received, before November 29, 2006, are not required to be 
consistent with the requirements set forth in Appendices B and D to 36 
CFR part 1191 and Appendix A to this part, if the construction or 
alterations comply with the former Appendix A to this part, as codified 
in the October 1, 2006, edition of the Code of Federal Regulations.

[[Page 439]]

    (2) Existing buildings and facilities that are not altered after 
November 29, 2006, and which comply with the former Appendix A to this 
part, are not required to be retrofitted to comply with the requirements 
set forth in Appendices B and D to 36 CFR part 1191 and Appendix A to 
this part.
    (d)(1) For purposes of implementing the equivalent facilitation 
provision in ADA Chapter 1, Section 103, of Appendix B to 36 CFR part 
1191, the following parties may submit to the Administrator of the 
applicable operating administration a request for a determination of 
equivalent facilitation:
    (i)(A) A public or private entity that provides transportation 
facilities subject to the provisions of subpart C of this part, or other 
appropriate party with the concurrence of the Administrator.
    (B) With respect to airport facilities, an entity that is an airport 
operator subject to the requirements of 49 CFR part 27 or regulations 
implementing the Americans with Disabilities Act, an air carrier subject 
to the requirements of 14 CFR part 382, or other appropriate party with 
the concurrence of the Administrator.
    (ii) The manufacturer of a product or accessibility feature to be 
used in a transportation facility or facilities.
    (2) The requesting party shall provide the following information 
with its request:
    (i) Entity name, address, contact person and telephone;
    (ii) Specific provision(s) of Appendices B and D to 36 CFR part 1191 
or Appendix A to this part concerning which the entity is seeking a 
determination of equivalent facilitation.
    (iii) [Reserved]
    (iv) Alternative method of compliance, with demonstration of how the 
alternative meets or exceeds the level of accessibility or usability 
provided in Appendices B and D to 36 CFR part 1191 or Appendix A to this 
part; and
    (v) Documentation of the public participation used in developing an 
alternative method of compliance.
    (3) In the case of a request by a public entity that provides 
transportation facilities (including an airport operator), or a request 
by an air carrier with respect to airport facilities, the required 
public participation shall include the following:
    (i) The entity shall contact individuals with disabilities and 
groups representing them in the community. Consultation with these 
individuals and groups shall take place at all stages of the development 
of the request for equivalent facilitation. All documents and other 
information concerning the request shall be available, upon request, to 
Department of Transportation officials and members of the public.
    (ii) The entity shall make its proposed request available for public 
comment before the request is made final or transmitted to DOT. In 
making the request available for public review, the entity shall ensure 
that it is available, upon request, in accessible formats.
    (iii) The entity shall sponsor at least one public hearing on the 
request and shall provide adequate notice of the hearing, including 
advertisement in appropriate media, such as newspapers of general and 
special interest circulation and radio announcements.
    (4) In the case of a request by a manufacturer or a private entity 
other than an air carrier, the manufacturer or private entity shall 
consult, in person, in writing, or by other appropriate means, with 
representatives of national and local organizations representing people 
with those disabilities who would be affected by the request.
    (5) A determination of compliance will be made by the Administrator 
of the concerned operating administration on a case-by-case basis, with 
the concurrence of the Assistant Secretary for Transportation Policy.
    (6)(i) Determinations of equivalent facilitation are made only with 
respect to transportation facilities, and pertain only to the specific 
situation concerning which the determination is made. Provided, however, 
that with respect to a product or accessibility feature that the 
Administrator determines can provide an equivalent facilitation in a 
class of situations, the Administrator may make an equivalent 
facilitation determination applying to that class of situations.
    (ii) Entities shall not cite these determinations as indicating that 
a product or method constitutes equivalent

[[Page 440]]

facilitation in situations, or classes of situations, other than those 
to which the determinations specifically pertain.
    (iii) Entities shall not claim that a determination of equivalent 
facilitation indicates approval or endorsement of any product or method 
by the Federal government, the Department of Transportation, or any of 
its operating administrations.

[71 FR 63265, Oct. 30, 2006]



Sec.  37.11  Administrative enforcement.

    (a) Recipients of Federal financial assistance from the Department 
of Transportation are subject to administrative enforcement of the 
requirements of this part under the provisions of 49 CFR part 27, 
subpart C.
    (b) Public entities, whether or not they receive Federal financial 
assistance, also are subject to enforcement action as provided by the 
Department of Justice.
    (c) Private entities, whether or not they receive Federal financial 
assistance, are also subject to enforcement action as provided in the 
regulations of the Department of Justice implementing title III of the 
ADA (28 CFR part 36).

[56 FR 45621, Sept. 6, 1991, as amended at 61 FR 25416, May 21, 1996]



Sec.  37.13  Effective date for certain vehicle specifications.

    (a) The vehicle lift specifications identified in Sec. Sec.  
38.23(b)(6), 38.83(b)(6), 38.95(b)(6), and 38.125(b)(6) of this title 
apply to solicitations for vehicles under this part after January 25, 
1992.
    (b) The vehicle door height requirements for vehicles over 22 feet 
identified in Sec.  38.25(c) of this title apply to solicitations for 
vehicles under this part after January 25, 1992.

[56 FR 64215, Dec. 9, 1991]



Sec.  37.15  Interpretations and guidance.

    The Secretary of Transportation, Office of the Secretary of 
Transportation, and Operating Administrations may issue written 
interpretations of or written guidance concerning this part. Written 
interpretations and guidance shall be developed through the Department's 
coordinating mechanism for disability matters, the Disability Law 
Coordinating Council. Written interpretations and guidance constitute 
the official position of the Department of Transportation, or any of its 
operating administrations, only if they are issued over the signature of 
the Secretary of Transportation or if they contain the following 
statement: ``The General Counsel of the Department of Transportation has 
reviewed this document and approved it as consistent with the language 
and intent of 49 CFR parts 27, 37, 38, and/or 39, as applicable.''

[76 FR 57935, Sept. 19, 2011]



Sec.  37.16  [Reserved]



Sec.  37.17  Designation of responsible employee and adoption of
complaint procedures.

    (a) Designation of responsible employee. Each public or private 
entity subject to this part shall designate at least one person to 
coordinate its efforts to comply with this part. (b) Adoption of 
complaint procedures. An entity shall adopt procedures that incorporate 
appropriate due process standards and provide for the prompt and 
equitable resolution of complaints alleging any action prohibited by 
this part and 49 CFR parts 27, 38 and 39. The procedures shall meet the 
following requirements:
    (1) The process for filing a complaint, including the name, address, 
telephone number, and email address of the employee designated under 
paragraph (a) of this section, must be sufficiently advertised to the 
public, such as on the entity's Web site;
    (2) The procedures must be accessible to and usable by individuals 
with disabilities;
    (3) The entity must promptly communicate its response to the 
complaint allegations, including its reasons for the response, to the 
complainant and must ensure that it has documented its response.

[80 FR 13261, Mar. 13, 2015]



Sec. Sec.  37.18-37.19  [Reserved]



                         Subpart B_Applicability



Sec.  37.21  Applicability: General.

    (a) This part applies to the following entities, whether or not they 
receive

[[Page 441]]

Federal financial assistance from the Department of Transportation:
    (1) Any public entity that provides designated public transportation 
or intercity or commuter rail transportation;
    (2) Any private entity that provides specified public 
transportation; and
    (3) Any private entity that is not primarily engaged in the business 
of transporting people but operates a demand responsive or fixed route 
system.
    (b) For entities receiving Federal financial assistance from the 
Department of Transportation, compliance with applicable requirements of 
this part is a condition of compliance with section 504 of the 
Rehabilitation Act of 1973 and of receiving financial assistance.
    (c) Entities to which this part applies also may be subject to ADA 
regulations of the Department of Justice (28 CFR parts 35 or 36, as 
applicable). The provisions of this part shall be interpreted in a 
manner that will make them consistent with applicable Department of 
Justice regulations. In any case of apparent inconsistency, the 
provisions of this part shall prevail.



Sec.  37.23  Service under contract.

    (a) When a public entity enters into a contractual or other 
arrangement (including, but not limited to, a grant, subgrant, or 
cooperative agreement) or relationship with a private entity to operate 
fixed route or demand responsive service, the public entity shall ensure 
that the private entity meets the requirements of this part that would 
apply to the public entity if the public entity itself provided the 
service.
    (b) A private entity which purchases or leases new, used, or 
remanufactured vehicles, or remanufactures vehicles, for use, or in 
contemplation of use, in fixed route or demand responsive service under 
contract or other arrangement or relationship with a public entity, 
shall acquire accessible vehicles in all situations in which the public 
entity itself would be required to do so by this part.
    (c) A public entity which enters into a contractual or other 
arrangement (including, but not limited to, a grant, subgrant, or 
cooperative agreement) or relationship with a private entity to provide 
fixed route service shall ensure that the percentage of accessible 
vehicles operated by the public entity in its overall fixed route or 
demand responsive fleet is not diminished as a result.
    (d) A private entity that provides fixed route or demand responsive 
transportation service under contract or other arrangement (including, 
but not limited to, a grant, subgrant, or cooperative agreement) with 
another private entity shall be governed, for purposes of the 
transportation service involved, by the provisions of this part 
applicable to the other entity.

[56 FR 45621, Sept. 6, 1991, as amended at 76 FR 57935, Sept. 19, 2011]



Sec.  37.25  University transportation systems.

    (a) Transportation services operated by private institutions of 
higher education are subject to the provisions of this part governing 
private entities not primarily engaged in the business of transporting 
people.
    (b) Transportation systems operated by public institutions of higher 
education are subject to the provisions of this part governing public 
entities. If a public institution of higher education operates a fixed 
route system, the requirements of this part governing commuter bus 
service apply to that system.



Sec.  37.27  Transportation for elementary and secondary education 
systems.

    (a) The requirements of this part do not apply to public school 
transportation.
    (b) The requirements of this part do not apply to the transportation 
of school children to and from a private elementary or secondary school, 
and its school-related activities, if the school is providing 
transportation service to students with disabilities equivalent to that 
provided to students without disabilities. The test of equivalence is 
the same as that provided in Sec.  37.105. If the school does not meet 
the requirement of this paragraph for exemption from the requirements of 
this part, it is subject to the requirements of this part for private 
entities not primarily engaged in transporting people.

[56 FR 45621, Sept. 6, 1991, as amended at 61 FR 25415, May 21, 1996]

[[Page 442]]



Sec.  37.29  Private entities providing taxi service.

    (a) Providers of taxi service are subject to the requirements of 
this part for private entities primarily engaged in the business of 
transporting people which provide demand responsive service.
    (b) Providers of taxi service are not required to purchase or lease 
accessible automobiles. When a provider of taxi service purchases or 
leases a vehicle other than an automobile, the vehicle is required to be 
accessible unless the provider demonstrates equivalency as provided in 
Sec.  37.105 of this part. A provider of taxi service is not required to 
purchase vehicles other than automobiles in order to have a number of 
accessible vehicles in its fleet.
    (c) Private entities providing taxi service shall not discriminate 
against individuals with disabilities by actions including, but not 
limited to, refusing to provide service to individuals with disabilities 
who can use taxi vehicles, refusing to assist with the stowing of 
mobility devices, and charging higher fares or fees for carrying 
individuals with disabilities and their equipment than are charged to 
other persons.



Sec.  37.31  Vanpools.

    Vanpool systems which are operated by public entities, or in which 
public entities own or purchase or lease the vehicles, are subject to 
the requirements of this part for demand responsive service for the 
general public operated by public entities. A vanpool system in this 
category is deemed to be providing equivalent service to individuals 
with disabilities if a vehicle that an individual with disabilities can 
use is made available to and used by a vanpool in which such an 
individual chooses to participate.



Sec.  37.33  Airport transportation systems.

    (a) Transportation systems operated by public airport operators, 
which provide designated public transportation and connect parking lots 
and terminals or provide transportation among terminals, are subject to 
the requirements of this part for fixed route or demand responsive 
systems, as applicable, operated by public entities. Public airports 
which operate fixed route transportation systems are subject to the 
requirements of this part for commuter bus service operated by public 
entities. The provision by an airport of additional accommodations 
(e.g., parking spaces in a close-in lot) is not a substitute for meeting 
the requirements of this part.
    (b) Fixed-route transportation systems operated by public airport 
operators between the airport and a limited number of destinations in 
the area it serves are subject to the provisions of this part for 
commuter bus systems operated by public entities.
    (c) Private jitney or shuttle services that provide transportation 
between an airport and destinations in the area it serves in a route-
deviation or other variable mode are subject to the requirements of this 
part for private entities primarily engaged in the business of 
transporting people which provide demand responsive service. They may 
meet equivalency requirements by such means as sharing or pooling 
accessible vehicles among operators, in a way that ensures the provision 
of equivalent service.



Sec.  37.35  Supplemental service for other transportation modes.

    (a) Transportation service provided by bus or other vehicle by an 
intercity commuter or rail operator, as an extension of or supplement to 
its rail service, and which connects an intercity rail station and 
limited other points, is subject to the requirements of this part for 
fixed route commuter bus service operated by a public entity.
    (b) Dedicated bus service to commuter rail systems, with through 
ticketing arrangements and which is available only to users of the 
commuter rail system, is subject to the requirements of this part for 
fixed route commuter bus service operated by a public entity.



Sec.  37.37  Other applications.

    (a) A private entity does not become subject to the requirements of 
this part for public entities, because it receives an operating subsidy 
from, is regulated by, or is granted a franchise or permit to operate by 
a public entity.

[[Page 443]]

    (b) Shuttle systems and other transportation services operated by 
privately-owned hotels, car rental agencies, historical or theme parks, 
and other public accommodations are subject to the requirements of this 
part for private entities not primarily engaged in the business of 
transporting people. Either the requirements for demand responsive or 
fixed route service may apply, depending upon the characteristics of 
each individual system of transportation.
    (c) Conveyances used by members of the public primarily for 
recreational purposes rather than for transportation (e.g., amusement 
park rides, ski lifts, or historic rail cars or trolleys operated in 
museum settings) are not subject to the requirements of this part. Such 
conveyances are subject to Department of Justice regulations 
implementing title II or title III of the ADA (28 CFR part 35 or 36), as 
applicable.
    (d) Transportation services provided by an employer solely for its 
own employees are not subject to the requirements of this part. Such 
services are subject to the regulations of the Equal Employment 
Opportunity Commission under title I of the ADA (29 CFR part 1630) and, 
with respect to public entities, the regulations of the Department of 
Justice under title II of the ADA (28 CFR part 35).
    (e) Transportation systems operated by private clubs or 
establishments exempted from coverage under title II of the Civil Rights 
Act of 1964 (42 U.S.C. 2000-a(e)) or religious organizations or entities 
controlled by religious organizations are not subject to the 
requirements of this part.
    (f) If a parent private company is not primarily engaged in the 
business of transporting people, or is not a place of public 
accommodation, but a subsidiary company or an operationally distinct 
segment of the company is primarily engaged in the business of 
transporting people, the transportation service provided by the 
subsidiary or segment is subject to the requirements of this part for 
private entities primarily engaged in the business of transporting 
people.
    (g) High-speed rail systems operated by public entities are subject 
to the requirements of this part governing intercity rail systems.
    (h) Private rail systems providing fixed route or specified public 
transportation service are subject to the requirements of Sec.  37.107 
with respect to the acquisition of rail passenger cars. Such systems are 
subject to the requirements of the regulations of the Department of 
Justice implementing title III of the ADA (28 CFR part 36) with respect 
to stations and other facilities.



Sec.  37.39  [Reserved]



                   Subpart C_Transportation Facilities



Sec.  37.41  Construction of transportation facilities by public entities.

    (a) A public entity shall construct any new facility to be used in 
providing designated public transportation services so that the facility 
is readily accessible to and usable by individuals with disabilities, 
including individuals who use wheelchairs. This requirement also applies 
to the construction of a new station for use in intercity or commuter 
rail transportation. For purposes of this section, a facility or station 
is ``new'' if its construction begins (i.e., issuance of notice to 
proceed) after January 25, 1992, or, in the case of intercity or 
commuter rail stations, after October 7, 1991.
    (b) (1) Full compliance with the requirements of this section is not 
required where an entity can demonstrate that it is structurally 
impracticable to meet the requirements. Full compliance will be 
considered structurally impracticable only in those rare circumstances 
when the unique characteristics of terrain prevent the incorporation of 
accessibility features.
    (2) If full compliance with this section would be structurally 
impracticable, compliance with this section is required to the extent 
that it is not structurally impracticable. In that case, any portion of 
the facility that can be made accessible shall be made accessible to the 
extent that it is not structurally impracticable.
    (3) If providing accessibility in conformance with this section to 
individuals with certain disabilities (e.g.,

[[Page 444]]

those who use wheelchairs) would be structurally impracticable, 
accessibility shall nonetheless be ensured to persons with other types 
of disabilities (e.g., those who use crutches or who have sight, 
hearing, or mental impairments) in accordance with this section.

[56 FR 45621, Sept. 6, 1991, as amended at 71 FR 63266, Oct. 30, 2006]



Sec.  37.42  Service in an Integrated Setting to Passengers at 
Intercity, Commuter, and High-Speed Rail Station Platforms Constructed
or Altered After February 1, 2012.

    (a) In addition to meeting the requirements of sections 37.9 and 
37.41, an operator of a commuter, intercity, or high-speed rail system 
must ensure, at stations that are approved for entry into final design 
or that begin construction or alteration of platforms on or after 
February 1, 2012, that the following performance standard is met: 
individuals with disabilities, including individuals who use 
wheelchairs, must have access to all accessible cars available to 
passengers without disabilities in each train using the station.
    (b) For new or altered stations serving commuter, intercity, or 
high-speed rail lines or systems, in which no track passing through the 
station and adjacent to platforms is shared with existing freight rail 
operations, the performance standard of paragraph (a) of this section 
must be met by providing level-entry boarding to all accessible cars in 
each train that serves the station.
    (c) For new or altered stations serving commuter, intercity, or 
high-speed rail lines or systems, in which track passing through the 
station and adjacent to platforms is shared with existing freight rail 
operations, the railroad operator may comply with the performance 
standard of paragraph (a) by use of one or more of the following means:
    (1) Level-entry boarding;
    (2) Car-borne lifts;
    (3) Bridge plates, ramps or other appropriate devices;
    (4) Mini-high platforms, with multiple mini-high platforms or 
multiple train stops, as needed, to permit access to all accessible cars 
available at that station; or
    (5) Station-based lifts;
    (d) Before constructing or altering a platform at a station covered 
by paragraph (c) of this section, at which a railroad proposes to use a 
means other than level-entry boarding, the railroad must meet the 
following requirements:
    (1) If the railroad operator not using level-entry boarding chooses 
a means of meeting the performance standard other than using car-borne 
lifts, it must perform a comparison of the costs (capital, operating, 
and life-cycle costs) of car-borne lifts and the means chosen by the 
railroad operator, as well as a comparison of the relative ability of 
each of these alternatives to provide service to individuals with 
disabilities in an integrated, safe, timely, and reliable manner. The 
railroad operator must submit a copy of this analysis to FTA or FRA at 
the time it submits the plan required by paragraph (d)(2) of this 
section.
    (2) The railroad operator must submit a plan to FRA and/or FTA, 
describing its proposed means to meet the performance standard of 
paragraph (a) of this section at that station. The plan must demonstrate 
how boarding equipment or platforms would be deployed, maintained, and 
operated; and how personnel would be trained and deployed to ensure that 
service to individuals with disabilities is provided in an integrated, 
safe, timely, and reliable manner.
    (3) Before proceeding with constructing or modifying a station 
platform covered by paragraphs (c) and (d) of this section, the railroad 
must obtain approval from the FTA (for commuter rail systems) or the FRA 
(for intercity rail systems). The agencies will evaluate the proposed 
plan and may approve, disapprove, or modify it. The FTA and the FRA may 
make this determination jointly in any situation in which both a 
commuter rail system and an intercity or high-speed rail system use the 
tracks serving the platform. FTA and FRA will respond to the railroad's 
plan in a timely manner, in accordance with the timetable set forth in 
paragraphs (d)(3)(i) through (d)(3)(iii) of this paragraph.
    (i) FTA/FRA will provide an initial written response within 30 days 
of receiving a railroad's written proposal.

[[Page 445]]

This response will say either that the submission is complete or that 
additional information is needed.
    (ii) Once a complete package, including any requested additional 
information, is received, as acknowledged by FRA/FTA in writing, FRA/FTA 
will provide a substantive response accepting, rejecting, or modifying 
the proposal within 120 days.
    (iii) If FTA/FRA needs additional time to consider the railroad's 
proposal, FRA/FTA will provide a written communication to the railroad 
setting forth the reasons for the delay and an estimate of the 
additional time (not to exceed an additional 60 days) that FRA/FTA 
expect to take to finalize a substantive response to the proposal.
    (iv) In reviewing the plan, FRA and FTA will consider factors 
including, but not limited to, how the proposal maximizes accessibility 
to individuals with disabilities, any obstacles to the use of a method 
that could provide better service to individuals with disabilities, the 
safety and reliability of the approach and related technology proposed 
to be used, the suitability of the means proposed to the station and 
line and/or system on which it would be used, and the adequacy of 
equipment and maintenance and staff training and deployment.
    (e) In any situation using a combination of high and low platforms, 
a commuter or intercity rail operator shall not employ a solution that 
has the effect of channeling passengers into a narrow space between the 
face of the higher-level platform and the edge of the lower platform.
    (1) Except as provided in paragraph (e)(2) of this paragraph, any 
obstructions on a platform (mini-high platforms, stairwells, elevator 
shafts, seats etc.) shall be set at least six feet back from the edge of 
a platform.
    (2) If the six-foot clearance is not feasible (e.g., where such a 
clearance would create an insurmountable gap on a mini-high platform or 
where the physical structure of an existing station does not allow such 
clearance), barriers must be used to prevent the flow of pedestrian 
traffic through these narrower areas.
    (f) For purposes of this part, level-entry boarding means a boarding 
platform design in which the horizontal gap between a car at rest and 
the platform is no more than 10 inches on tangent track and 13 inches on 
curves and the vertical height of the car floor is no more than 5.5 
inches above the boarding platform. Where the horizontal gap is more 
than 3 inches and/or the vertical gap is more than \5/8\ inch, measured 
when the vehicle is at rest, the horizontal and vertical gaps between 
the car floor and the boarding platform must be mitigated by a bridge 
plate, ramp, or other appropriate device consistent with 49 CFR 38.95(c) 
and 38.125(c).

[76 FR 57935, Sept. 19, 2011]



Sec.  37.43  Alteration of transportation facilities by public entities.

    (a)(1) When a public entity alters an existing facility or a part of 
an existing facility used in providing designated public transportation 
services in a way that affects or could affect the usability of the 
facility or part of the facility, the entity shall make the alterations 
(or ensure that the alterations are made) in such a manner, to the 
maximum extent feasible, that the altered portions of the facility are 
readily accessible to and usable by individuals with disabilities, 
including individuals who use wheelchairs, upon the completion of such 
alterations.
    (2) When a public entity undertakes an alteration that affects or 
could affect the usability of or access to an area of a facility 
containing a primary function, the entity shall make the alteration in 
such a manner that, to the maximum extent feasible, the path of travel 
to the altered area and the bathrooms, telephones, and drinking 
fountains serving the altered area are readily accessible to and usable 
by individuals with disabilities, including individuals who use 
wheelchairs, upon completion of the alterations. Provided, that 
alterations to the path of travel, drinking fountains, telephones and 
bathrooms are not required to be made readily accessible to and usable 
by individuals with disabilities, including individuals who use 
wheelchairs, if the cost and scope of doing so would be 
disproportionate.
    (3) The requirements of this paragraph also apply to the alteration 
of

[[Page 446]]

existing intercity or commuter rail stations by the responsible person 
for, owner of, or person in control of the station.
    (4) The requirements of this section apply to any alteration which 
begins (i.e., issuance of notice to proceed or work order, as 
applicable) after January 25, 1992, or, in the case of intercity and 
commuter rail stations, after October 7, 1991.
    (b) As used in this section, the phrase to the maximum extent 
feasible applies to the occasional case where the nature of an existing 
facility makes it impossible to comply fully with applicable 
accessibility standards through a planned alteration. In these 
circumstances, the entity shall provide the maximum physical 
accessibility feasible. Any altered features of the facility or portion 
of the facility that can be made accessible shall be made accessible. If 
providing accessibility to certain individuals with disabilities (e.g., 
those who use wheelchairs) would not be feasible, the facility shall be 
made accessible to individuals with other types of disabilities (e.g., 
those who use crutches, those who have impaired vision or hearing, or 
those who have other impairments).
    (c) As used in this section, a primary function is a major activity 
for which the facility is intended. Areas of transportation facilities 
that involve primary functions include, but are not necessarily limited 
to, ticket purchase and collection areas, passenger waiting areas, train 
or bus platforms, baggage checking and return areas and employment areas 
(except those involving non-occupiable spaces accessed only by ladders, 
catwalks, crawl spaces, very narrow passageways, or freight (non-
passenger) elevators which are frequented only by repair personnel).
    (d) As used in this section, a ``path of travel'' includes a 
continuous, unobstructed way of pedestrian passage by means of which the 
altered area may be approached, entered, and exited, and which connects 
the altered area with an exterior approach (including sidewalks, parking 
areas, and streets), an entrance to the facility, and other parts of the 
facility. The term also includes the restrooms, telephones, and drinking 
fountains serving the altered area. An accessible path of travel may 
include walks and sidewalks, curb ramps and other interior or exterior 
pedestrian ramps, clear floor paths through corridors, waiting areas, 
concourses, and other improved areas, parking access aisles, elevators 
and lifts, bridges, tunnels, or other passageways between platforms, or 
a combination of these and other elements.
    (e)(1) Alterations made to provide an accessible path of travel to 
the altered area will be deemed disproportionate to the overall 
alteration when the cost exceeds 20 percent of the cost of the 
alteration to the primary function area (without regard to the costs of 
accessibility modifications).
    (2) Costs that may be counted as expenditures required to provide an 
accessible path of travel include:
    (i) Costs associated with providing an accessible entrance and an 
accessible route to the altered area (e.g., widening doorways and 
installing ramps);
    (ii) Costs associated with making restrooms accessible (e.g., grab 
bars, enlarged toilet stalls, accessible faucet controls);
    (iii) Costs associated with providing accessible telephones (e.g., 
relocation of phones to an accessible height, installation of 
amplification devices or TDDs);
    (iv) Costs associated with relocating an inaccessible drinking 
fountain.
    (f)(1) When the cost of alterations necessary to make a path of 
travel to the altered area fully accessible is disproportionate to the 
cost of the overall alteration, then such areas shall be made accessible 
to the maximum extent without resulting in disproportionate costs;
    (2) In this situation, the public entity should give priority to 
accessible elements that will provide the greatest access, in the 
following order:
    (i) An accessible entrance;
    (ii) An accessible route to the altered area;
    (iii) At least one accessible restroom for each sex or a single 
unisex restroom (where there are one or more restrooms);
    (iv) Accessible telephones;
    (v) Accessible drinking fountains;

[[Page 447]]

    (vi) When possible, other accessible elements (e.g., parking, 
storage, alarms).
    (g) If a public entity performs a series of small alterations to the 
area served by a single path of travel rather than making the 
alterations as part of a single undertaking, it shall nonetheless be 
responsible for providing an accessible path of travel.
    (h)(1) If an area containing a primary function has been altered 
without providing an accessible path of travel to that area, and 
subsequent alterations of that area, or a different area on the same 
path of travel, are undertaken within three years of the original 
alteration, the total cost of alteration to the primary function areas 
on that path of travel during the preceding three year period shall be 
considered in determining whether the cost of making that path of travel 
is disproportionate;
    (2) For the first three years after January 26, 1992, only 
alterations undertaken between that date and the date of the alteration 
at issue shall be considered in determining if the cost of providing 
accessible features is disproportionate to the overall cost of the 
alteration.
    (3) Only alterations undertaken after January 26, 1992, shall be 
considered in determining if the cost of providing an accessible path of 
travel is disproportionate to the overall cost of the alteration.



Sec.  37.45  Construction and alteration of transportation facilities
by private entities.

    In constructing and altering transit facilities, private entities 
shall comply with the regulations of the Department of Justice 
implementing Title III of the ADA (28 CFR part 36).



Sec.  37.47  Key stations in light and rapid rail systems.

    (a) Each public entity that provides designated public 
transportation by means of a light or rapid rail system shall make key 
stations on its system readily accessible to and usable by individuals 
with disabilities, including individuals who use wheelchairs. This 
requirement is separate from and in addition to requirements set forth 
in Sec.  37.43 of this part.
    (b) Each public entity shall determine which stations on its system 
are key stations. The entity shall identify key stations, using the 
planning and public participation process set forth in paragraph (d) of 
this section, and taking into consideration the following criteria:
    (1) Stations where passenger boardings exceed average station 
passenger boardings on the rail system by at least fifteen percent, 
unless such a station is close to another accessible station;
    (2) Transfer stations on a rail line or between rail lines;
    (3) Major interchange points with other transportation modes, 
including stations connecting with major parking facilities, bus 
terminals, intercity or commuter rail stations, passenger vessel 
terminals, or airports;
    (4) End stations, unless an end station is close to another 
accessible station; and
    (5) Stations serving major activity centers, such as employment or 
government centers, institutions of higher education, hospitals or other 
major health care facilities, or other facilities that are major trip 
generators for individuals with disabilities.
    (c)(1) Unless an entity receives an extension under paragraph (c)(2) 
of this section, the public entity shall achieve accessibility of key 
stations as soon as possible, but in no case later than July 26, 1994.
    (2) The FTA Administrator may grant an extension of this completion 
date for key station accessibility for a period up to July 26, 2020, 
provided that two-thirds of key stations are made accessible by July 26, 
2010. Extensions may be granted as provided in paragraph (e) of this 
section.
    (d) The public entity shall develop a plan for compliance for this 
section. The plan shall be submitted to the appropriate FTA regional 
office by July 26, 1992. (See appendix B to this part for list.)
    (1) The public entity shall consult with individuals with 
disabilities affected by the plan. The public entity also shall hold at 
least one public hearing on the plan and solicit comments

[[Page 448]]

on it. The plan submitted to FTA shall document this public 
participation, including summaries of the consultation with individuals 
with disabilities and the comments received at the hearing and during 
the comment period. The plan also shall summarize the public entity's 
responses to the comments and consultation.
    (2) The plan shall establish milestones for the achievement of 
required accessibility of key stations, consistent with the requirements 
of this section.
    (e) A public entity wishing to apply for an extension of the July 
26, 1993, deadline for key station accessibility shall include a request 
for an extension with its plan submitted to FTA under paragraph (d) of 
this section. Extensions may be granted only with respect to key 
stations which need extraordinarily expensive structural changes to, or 
replacement of, existing facilities (e.g., installations of elevators, 
raising the entire passenger platform, or alterations of similar 
magnitude and cost). Requests for extensions shall provide for 
completion of key station accessibility within the time limits set forth 
in paragraph (c) of this section. The FTA Administrator may approve, 
approve with conditions, modify, or disapprove any request for an 
extension.

[56 FR 45621, Sept. 6, 1991, as amended at 58 FR 63102, Nov. 30, 1993; 
79 FR 21405, Apr. 16, 2014]



Sec.  37.49  Designation of responsible person(s) for intercity and
commuter rail stations.

    (a) The responsible person(s) designated in accordance with this 
section shall bear the legal and financial responsibility for making a 
key station accessible in the same proportion as determined under this 
section.
    (b) In the case of a station more than fifty percent of which is 
owned by a public entity, the public entity is the responsible party.
    (c) In the case of a station more than fifty percent of which is 
owned by a private entity the persons providing commuter or intercity 
rail service to the station are the responsible parties, in a proportion 
equal to the percentage of all passenger boardings at the station 
attributable to the service of each, over the entire period during which 
the station is made accessible.
    (d) In the case of a station of which no entity owns more than fifty 
percent, the owners of the station (other than private entity owners) 
and persons providing intercity or commuter rail service to the station 
are the responsible persons.
    (1) Half the responsibility for the station shall be assumed by the 
owner(s) of the station. The owners shall share this responsibility in 
proportion to their ownership interest in the station, over the period 
during which the station is made accessible.
    (2) The person(s) providing commuter or intercity rail service to 
the station shall assume the other half of the responsibility. These 
persons shall share this responsibility. These persons shall share this 
responsibility for the station in a proportion equal to the percentage 
of all passenger boardings at the station attributable to the service of 
each, over the period during which the station is made accessible.
    (e) Persons who must share responsibility for station accessibility 
under paragraphs (c) and (d) of this section may, by agreement, allocate 
their responsibility in a manner different from that provided in this 
section.



Sec.  37.51  Key stations in commuter rail systems.

    (a) The responsible person(s) shall make key stations on its system 
readily accessible to and usable by individuals with disabilities, 
including individuals who use wheelchairs. This requirement is separate 
from and in addition to requirements set forth in Sec.  37.43 of this 
part.
    (b) Each commuter authority shall determine which stations on its 
system are key stations. The commuter authority shall identify key 
stations, using the planning and public participation process set forth 
in paragraph (d) of this section, and taking into consideration the 
following criteria:
    (1) Stations where passenger boardings exceed average station 
passenger boardings on the rail system by at least fifteen percent, 
unless such a station is close to another accessible station;

[[Page 449]]

    (2) Transfer stations on a rail line or between rail lines;
    (3) Major interchange points with other transportation modes, 
including stations connecting with major parking facilities, bus 
terminals, intercity or commuter rail stations, passenger vessel 
terminals, or airports;
    (4) End stations, unless an end station is close to another 
accessible station; and
    (5) Stations serving major activity centers, such as employment or 
government centers, institutions of higher education, hospitals or other 
major health care facilities, or other facilities that are major trip 
generators for individuals with disabilities.
    (c)(1) Except as provided in this paragraph, the responsible 
person(s) shall achieve accessibility of key stations as soon as 
possible, but in no case later than July 26, 1994.
    (2) The FTA Administrator may grant an extension of this deadline 
for key station accessibility for a period up to July 26, 2010. 
Extensions may be granted as provided in paragraph (e) of this section.
    (d) The commuter authority and responsible person(s) for stations 
involved shall develop a plan for compliance for this section. This plan 
shall be completed and submitted to FTA by July 26, 1992.
    (1) The commuter authority and responsible person(s) shall consult 
with individuals with disabilities affected by the plan. The commuter 
authority and responsible person(s) also shall hold at least one public 
hearing on the plan and solicit comments on it. The plan shall document 
this public participation, including summaries of the consultation with 
individuals with disabilities and the comments received at the hearing 
and during the comment period. The plan also shall summarize the 
responsible person(s) responses to the comments and consultation.
    (2) The plan shall establish milestones for the achievement of 
required accessibility of key stations, consistent with the requirements 
of this section.
    (3) The commuter authority and responsible person(s) of each key 
station identified in the plan shall, by mutual agreement, designate a 
project manager for the purpose of undertaking the work of making the 
key station accessible.
    (e) Any commuter authority and/or responsible person(s) wishing to 
apply for an extension of the July 26, 1993, deadline for key station 
accessibility shall include a request for extension with its plan 
submitted to under paragraph (d) of this section. Extensions may be 
granted only in a case where raising the entire passenger platform is 
the only means available of attaining accessibility or where other 
extraordinarily expensive structural changes (e.g., installations of 
elevators, or alterations of magnitude and cost similar to installing an 
elevator or raising the entire passenger platform) are necessary to 
attain accessibility. Requests for extensions shall provide for 
completion of key station accessibility within the time limits set forth 
in paragraph (c) of this section. The FTA Administrator may approve, 
approve with conditions, modify, or disapprove any request for an 
extension.

[56 FR 45621, Sept. 6, 1991, as amended at 58 FR 63102, Nov. 30, 1993; 
79 FR 21405, Apr. 16, 2014]



Sec.  37.53  Exception for New York and Philadelphia.

    (a) The following agreements entered into in New York, New York, and 
Philadelphia, Pennsylvania, contain lists of key stations for the public 
entities that are a party to those agreements for those service lines 
identified in the agreements. The identification of key stations under 
these agreements is deemed to be in compliance with the requirements of 
this Subpart.
    (1) Settlement Agreement by and among Eastern Paralyzed Veterans 
Association, Inc., James J. Peters, Terrance Moakley, and Denise 
Figueroa, individually and as representatives of the class of all 
persons similarly situated (collectively, ``the EPVA class 
representatives''); and Metropolitan Transportation Authority, New York 
City Transit Authority, and Manhattan and Bronx Surface Transit 
Operating Authority (October 4, 1984).
    (2) Settlement Agreement by and between Eastern Paralyzed Veterans 
Association of Pennsylvania, Inc., and

[[Page 450]]

James J. Peters, individually; and Dudley R. Sykes, as Commissioner of 
the Philadelphia Department of Public Property, and his successors in 
office and the City of Philadelphia (collectively ``the City'') and 
Southeastern Pennsylvania Transportation Authority (June 28, 1989).
    (b) To comply with Sec. Sec.  37.47 (b) and (d) or 37.51 (b) and (d) 
of this part, the entities named in the agreements are required to use 
their public participation and planning processes only to develop and 
submit to the FTA Administrator plans for timely completion of key 
station accessibilty, as provided in this subpart.
    (c) In making accessible the key stations identified under the 
agreements cited in this section, the entities named in the agreements 
are subject to the requirements of Sec.  37.9 of this part.



Sec.  37.55  Intercity rail station accessibility.

    All intercity rail stations shall be made readily accessible to and 
usable by individuals with disabilities, including individuals who use 
wheelchairs, as soon as practicable, but in no event later than July 26, 
2010. This requirement is separate from and in addition to requirements 
set forth in Sec.  37.43 of this part.



Sec.  37.57  Required cooperation.

    An owner or person in control of an intercity or commuter rail 
station shall provide reasonable cooperation to the responsible 
person(s) for that station with respect to the efforts of the 
responsible person to comply with the requirements of this subpart.



Sec.  37.59  Differences in accessibility completion dates.

    Where different completion dates for accessible stations are 
established under this part for a station or portions of a station 
(e.g., extensions of different periods of time for a station which 
serves both rapid and commuter rail systems), accessibility to the 
following elements of the station shall be achieved by the earlier of 
the completion dates involved:
    (a) Common elements of the station;
    (b) Portions of the facility directly serving the rail system with 
the earlier completion date; and
    (c) An accessible path from common elements of the station to 
portions of the facility directly serving the rail system with the 
earlier completion date.



Sec.  37.61  Public transportation programs and activities in
existing facilities.

    (a) A public entity shall operate a designated public transportation 
program or activity conducted in an existing facility so that, when 
viewed in its entirety, the program or activity is readily accessible to 
and usable by individuals with disabilities.
    (b) This section does not require a public entity to make structural 
changes to existing facilities in order to make the facilities 
accessible by individuals who use wheelchairs, unless and to the extent 
required by Sec.  37.43 (with respect to alterations) or Sec. Sec.  
37.47 or 37.51 of this part (with respect to key stations). Entities 
shall comply with other applicable accessibility requirements for such 
facilities.
    (c) Public entities, with respect to facilities that, as provided in 
paragraph (b) of this section, are not required to be made accessible to 
individuals who use wheelchairs, are not required to provide to such 
individuals services made available to the general public at such 
facilities when the individuals could not utilize or benefit from the 
services.



Sec. Sec.  37.63-37.69  [Reserved]



     Subpart D_Acquisition of Accessible Vehicles By Public Entities



Sec.  37.71  Purchase or lease of new non-rail vehicles by public 
entities operating fixed route systems.

    (a) Each public entity operating a fixed route system making a 
solicitation after August 25, 1990, to purchase or lease a new bus or 
other new vehicle for use on the system, shall ensure that the vehicle 
is readily accessible to and usable by individuals with disabilities,

[[Page 451]]

including individuals who use wheelchairs.

[56 FR 45621, Sept. 6, 1991, as amended at 76 FR 57936, Sept. 19, 2011]



Sec.  37.73  Purchase or lease of used non-rail vehicles by public
entities operating fixed route systems.

    (a) Except as provided elsewhere in this section, each public entity 
operating a fixed route system purchasing or leasing, after August 25, 
1990, a used bus or other used vehicle for use on the system, shall 
ensure that the vehicle is readily accessible to and usable by 
individuals with disabilities, including individuals who use 
wheelchairs.
    (b) A public entity may purchase or lease a used vehicle for use on 
its fixed route system that is not readily accessible to and usable by 
individuals with disabilities if, after making demonstrated good faith 
efforts to obtain an accessible vehicle, it is unable to do so.
    (c) Good faith efforts shall include at least the following steps:
    (1) An initial solicitation for used vehicles specifying that all 
used vehicles are to be lift-equipped and otherwise accessible to and 
usable by individuals with disabilities, or, if an initial solicitation 
is not used, a documented communication so stating;
    (2) A nationwide search for accessible vehicles, involving specific 
inquiries to used vehicle dealers and other transit providers; and
    (3) Advertising in trade publications and contacting trade 
associations.
    (d) Each public entity purchasing or leasing used vehicles that are 
not readily accessible to and usable by individuals with disabilities 
shall retain documentation of the specific good faith efforts it made 
for three years from the date the vehicles were purchased. These records 
shall be made available, on request, to the FTA Administrator and the 
public.



Sec.  37.75  Remanufacture of non-rail vehicles and purchase or lease
of remanufactured non-rail vehicles by public entities operating fixed 
route systems.

    (a) This section applies to any public entity operating a fixed 
route system which takes one of the following actions:
    (1) After August 25, 1990, remanufactures a bus or other vehicle so 
as to extend its useful life for five years or more or makes a 
solicitation for such remanufacturing; or
    (2) Purchases or leases a bus or other vehicle which has been 
remanufactured so as to extend its useful life for five years or more, 
where the purchase or lease occurs after August 25, 1990, and during the 
period in which the useful life of the vehicle is extended.
    (b) Vehicles acquired through the actions listed in paragraph (a) of 
this section shall, to the maximum extent feasible, be readily 
accessible to and usable by individuals with disabilities, including 
individuals who use wheelchairs.
    (c) For purposes of this section, it shall be considered feasible to 
remanufacture a bus or other motor vehicle so as to be readily 
accessible to and usable by individuals with disabilities, including 
individuals who use wheelchairs, unless an engineering analysis 
demonstrates that including accessibility features required by this part 
would have a significant adverse effect on the structural integrity of 
the vehicle.
    (d) If a public entity operates a fixed route system, any segment of 
which is included on the National Register of Historic Places, and if 
making a vehicle of historic character used solely on such segment 
readily accessible to and usable by individuals with disabilities would 
significantly alter the historic character of such vehicle, the public 
entity has only to make (or purchase or lease a remanufactured vehicle 
with) those modifications to make the vehicle accessible which do not 
alter the historic character of such vehicle, in consultation with the 
National Register of Historic Places.
    (e) A public entity operating a fixed route system as described in 
paragraph (d) of this section may apply in writing to the FTA 
Administrator for a determination of the historic character of the 
vehicle. The FTA Administrator shall refer such requests to the National 
Register of Historic Places, and

[[Page 452]]

shall rely on its advice in making determinations of the historic 
character of the vehicle.



Sec.  37.77  Purchase or lease of new non-rail vehicles by public
entities operating a demand responsive system for the general public.

    (a) Except as provided in this section, a public entity operating a 
demand responsive system for the general public making a solicitation 
after August 25, 1990, to purchase or lease a new bus or other new 
vehicle for use on the system, shall ensure that the vehicle is readily 
accessible to and usable by individuals with disabilities, including 
individuals who use wheelchairs.
    (b) If the system, when viewed in its entirety, provides a level of 
service to individuals with disabilities, including individuals who use 
wheelchairs, equivalent to the level of service it provides to 
individuals without disabilities, it may purchase new vehicles that are 
not readily accessible to and usable by individuals with disabilities.
    (c) For purposes of this section, a demand responsive system, when 
viewed in its entirety, shall be deemed to provide equivalent service if 
the service available to individuals with disabilities, including 
individuals who use wheelchairs, is provided in the most integrated 
setting appropriate to the needs of the individual and is equivalent to 
the service provided other individuals with respect to the following 
service characteristics:
    (1) Response time;
    (2) Fares;
    (3) Geographic area of service;
    (4) Hours and days of service;
    (5) Restrictions or priorities based on trip purpose;
    (6) Availability of information and reservations capability; and
    (7) Any constraints on capacity or service availability.
    (d) A public entity receiving FTA funds under 49 U.S.C. 5311 or a 
public entity in a small urbanized area which receives FTA funds under 
49 U.S.C. 5307 from a state administering agency rather than directly 
from FTA, which determines that its service to individuals with 
disabilities is equivalent to that provided other persons shall, before 
any procurement of an inaccessible vehicle, file with the appropriate 
state program office a certificate that it provides equivalent service 
meeting the standards of paragraph (c) of this section. Public entities 
operating demand responsive service receiving funds under any other 
section of the FT Act shall file the certificate with the appropriate 
FTA regional office. A public entity which does not receive FTA funds 
shall make such a certificate and retain it in its files, subject to 
inspection on request of FTA. All certificates under this paragraph may 
be made and filed in connection with a particular procurement or in 
advance of a procurement; however, no certificate shall be valid for 
more than one year. A copy of the required certificate is found in 
appendix C to this part.
    (e) The waiver mechanism set forth in Sec.  37.71(b)-(g) 
(unavailability of lifts) of this subpart shall also be available to 
public entities operating a demand responsive system for the general 
public.

[56 FR 45621, Sept. 6, 1991, as amended at 79 FR 21406, Apr. 16, 2014]



Sec.  37.79  Purchase or lease of new rail vehicles by public entities
operating rapid or light rail systems.

    Each public entity operating a rapid or light rail system making a 
solicitation after August 25, 1990, to purchase or lease a new rapid or 
light rail vehicle for use on the system shall ensure that the vehicle 
is readily accessible to and usable by individuals with disabilities, 
including individuals who use wheelchairs.



Sec.  37.81  Purchase or lease of used rail vehicles by public entities
operating rapid or light rail systems.

    (a) Except as provided elsewhere in this section, each public entity 
operating a rapid or light rail system which, after August 25, 1990, 
purchases or leases a used rapid or light rail vehicle for use on the 
system shall ensure that the vehicle is readily accessible to and usable 
by individuals with disabilities, including individuals who use 
wheelchairs.
    (b) A public entity may purchase or lease a used rapid or light rail 
vehicle for use on its rapid or light rail system that is not readily 
accessible to and usable by individuals if, after making

[[Page 453]]

demonstrated good faith efforts to obtain an accessible vehicle, it is 
unable to do so.
    (c) Good faith efforts shall include at least the following steps:
    (1) The initial solicitation for used vehicles made by the public 
entity specifying that all used vehicles were to be accessible to and 
usable by individuals with disabilities, or, if a solicitation is not 
used, a documented communication so stating;
    (2) A nationwide search for accessible vehicles, involving specific 
inquiries to manufacturers and other transit providers; and
    (3) Advertising in trade publications and contacting trade 
associations.
    (d) Each public entity purchasing or leasing used rapid or light 
rail vehicles that are not readily accessible to and usable by 
individuals with disabilities shall retain documentation of the specific 
good faith efforts it made for three years from the date the vehicles 
were purchased. These records shall be made available, on request, to 
the FTA Administrator and the public.



Sec.  37.83  Remanufacture of rail vehicles and purchase or lease of
remanufactured rail vehicles by public entities operating rapid or
light rail systems.

    (a) This section applies to any public entity operating a rapid or 
light rail system which takes one of the following actions:
    (1) After August 25, 1990, remanufactures a light or rapid rail 
vehicle so as to extend its useful life for five years or more or makes 
a solicitation for such remanufacturing;
    (2) Purchases or leases a light or rapid rail vehicle which has been 
remanufactured so as to extend its useful life for five years or more, 
where the purchase or lease occurs after August 25, 1990, and during the 
period in which the useful life of the vehicle is extended.
    (b) Vehicles acquired through the actions listed in paragraph (a) of 
this section shall, to the maximum extent feasible, be readily 
accessible to and usable by individuals with disabilities, including 
individuals who use wheelchairs.
    (c) For purposes of this section, it shall be considered feasible to 
remanufacture a rapid or light rail vehicle so as to be readily 
accessible to and usable by individuals with disabilities, including 
individuals who use wheelchairs, unless an engineering analysis 
demonstrates that doing so would have a significant adverse effect on 
the structural integrity of the vehicle.
    (d) If a public entity operates a rapid or light rail system any 
segment of which is included on the National Register of Historic Places 
and if making a rapid or light rail vehicle of historic character used 
solely on such segment readily accessible to and usable by individuals 
with disabilities would significantly alter the historic character of 
such vehicle, the public entity need only make (or purchase or lease a 
remanufactured vehicle with) those modifications that do not alter the 
historic character of such vehicle.
    (e) A public entity operating a fixed route system as described in 
paragraph (d) of this section may apply in writing to the FTA 
Administrator for a determination of the historic character of the 
vehicle. The FTA Administrator shall refer such requests to the National 
Register of Historic Places and shall rely on its advice in making a 
determination of the historic character of the vehicle.



Sec.  37.85  Purchase or lease of new intercity and commuter rail cars.

    Amtrak or a commuter authority making a solicitation after August 
25, 1990, to purchase or lease a new intercity or commuter rail car for 
use on the system shall ensure that the vehicle is readily accessible to 
and usable by individuals with disabilities, including individuals who 
use wheelchairs.



Sec.  37.87  Purchase or lease of used intercity and commuter rail cars.

    (a) Except as provided elsewhere in this section, Amtrak or a 
commuter authority purchasing or leasing a used intercity or commuter 
rail car after August 25, 1990, shall ensure that the car is readily 
accessible to and usable by individuals with disabilities, including 
individuals who use wheelchairs.
    (b) Amtrak or a commuter authority may purchase or lease a used 
intercity

[[Page 454]]

or commuter rail car that is not readily accessible to and usable by 
individuals if, after making demonstrated good faith efforts to obtain 
an accessible vehicle, it is unable to do so.
    (c) Good faith efforts shall include at least the following steps:
    (1) An initial solicitation for used vehicles specifying that all 
used vehicles accessible to and usable by individuals with disabilities;
    (2) A nationwide search for accessible vehicles, involving specific 
inquiries to used vehicle dealers and other transit providers; and
    (3) Advertising in trade publications and contacting trade 
associations.
    (d) When Amtrak or a commuter authority leases a used intercity or 
commuter rail car for a period of seven days or less, Amtrak or the 
commuter authority may make and document good faith efforts as provided 
in this paragraph instead of in the ways provided in paragraph (c) of 
this section:
    (1) By having and implementing, in its agreement with any intercity 
railroad or commuter authority that serves as a source of used intercity 
or commuter rail cars for a lease of seven days or less, a provision 
requiring that the lessor provide all available accessible rail cars 
before providing any inaccessible rail cars.
    (2) By documenting that, when there is more than one source of 
intercity or commuter rail cars for a lease of seven days or less, the 
lessee has obtained all available accessible intercity or commuter rail 
cars from all sources before obtaining inaccessible intercity or 
commuter rail cars from any source.
    (e) Amtrak and commuter authorities purchasing or leasing used 
intercity or commuter rail cars that are not readily accessible to and 
usable by individuals with disabilities shall retain documentation of 
the specific good faith efforts that were made for three years from the 
date the cars were purchased. These records shall be made available, on 
request, to the Federal Railroad Administration or FTA Administrator, as 
applicable. These records shall be made available to the public, on 
request.

[56 FR 45621, Sept. 6, 1991, as amended at 58 FR 63102, Nov. 30, 1993]



Sec.  37.89  Remanufacture of intercity and commuter rail cars and
purchase or lease of remanufactured intercity and commuter rail cars.

    (a) This section applies to Amtrak or a commuter authority which 
takes one of the following actions:
    (1) Remanufactures an intercity or commuter rail car so as to extend 
its useful life for ten years or more;
    (2) Purchases or leases an intercity or commuter rail car which has 
been remanufactured so as to extend its useful life for ten years or 
more.
    (b) Intercity and commuter rail cars listed in paragraph (a) of this 
section shall, to the maximum extent feasible, be readily accessible to 
and usable by individuals with disabilities, including individuals who 
use wheelchairs.
    (c) For purposes of this section, it shall be considered feasible to 
remanufacture an intercity or commuter rail car so as to be readily 
accessible to and usable by individuals with disabilities, including 
individuals who use wheelchairs, unless an engineering analysis 
demonstrates that remanufacturing the car to be accessible would have a 
significant adverse effect on the structural integrity of the car.



Sec.  37.91  Wheelchair locations and food service on intercity rail
trains.

    (a) As soon as practicable, but in no event later than July 26, 
1995, each person providing intercity rail service shall provide on each 
train a number of spaces--
    (1) To park wheelchairs (to accommodate individuals who wish to 
remain in their wheelchairs) equal to not less than one half of the 
number of single level rail passenger coaches in the train; and
    (2) To fold and store wheelchairs (to accommodate individuals who 
wish to transfer to coach seats) equal to not less than one half the 
number of single level rail passenger coaches in the train.
    (b) As soon as practicable, but in no event later than July 26, 
2000, each person providing intercity rail service shall provide on each 
train a number of spaces--
    (1) To park wheelchairs (to accommodate individuals who wish to 
remain in their wheelchairs) equal to not less

[[Page 455]]

than the total number of single level rail passenger coaches in the 
train; and
    (2) To fold and store wheelchairs (to accommodate individuals who 
wish to transfer to coach seats) equal to not less than the total number 
of single level rail passenger coaches in the train.
    (c) In complying with paragraphs (a) and (b) of this section, a 
person providing intercity rail service may not provide more than two 
spaces to park wheelchairs nor more than two spaces to fold and store 
wheelchairs in any one coach or food service car.
    (d) Unless not practicable, a person providing intercity rail 
transportation shall place an accessible car adjacent to the end of a 
single level dining car through which an individual who uses a 
wheelchair may enter.
    (e) On any train in which either a single level or bi-level dining 
car is used to provide food service, a person providing intercity rail 
service shall provide appropriate aids and services to ensure that 
equivalent food service is available to individuals with disabilities, 
including individuals who use wheelchairs, and to passengers traveling 
with such individuals. Appropriate auxiliary aids and services include 
providing a hard surface on which to eat.
    (f) This section does not require the provision of securement 
devices on intercity rail cars.



Sec.  37.93  One car per train rule.

    (a) The definition of accessible for purposes of meeting the one car 
per train rule is spelled out in the applicable subpart for each 
transportation system type in part 38 of this title.
    (b) Each person providing intercity rail service and each commuter 
rail authority shall ensure that, as soon as practicable, but in no 
event later than July 26, 1995, that each train has one car that is 
readily accessible to and usable by individuals with disabilities, 
including individuals who use wheelchairs.
    (c) Each public entity providing light or rapid rail service shall 
ensure that each train, consisting of two or more vehicles, includes at 
least one car that is readily accessible to and usable by individuals 
with disabilities, including individuals who use wheelchairs, as soon as 
practicable but in no case later than July 25, 1995.



Sec.  37.95  Ferries and other passenger vessels operated by public 
entities. [Reserved]



Sec. Sec.  37.97-37.99  [Reserved]



    Subpart E_Acquisition of Accessible Vehicles by Private Entities



Sec.  37.101  Purchase or lease of vehicles by private entities not
primarily engaged in the business of transporting people.

    (a) Application. This section applies to all purchases or leases of 
vehicles by private entities which are not primarily engaged in the 
business of transporting people, in which a solicitation for the vehicle 
is made after August 25, 1990.
    (b) Fixed Route System. Vehicle Capacity Over 16. If the entity 
operates a fixed route system and purchases or leases a vehicle with a 
seating capacity of over 16 passengers (including the driver) for use on 
the system, it shall ensure that the vehicle is readily accessible to 
and usable by individuals with disabilities, including individuals who 
use wheelchairs.
    (c) Fixed Route System. Vehicle Capacity of 16 or Fewer. If the 
entity operates a fixed route system and purchases or leases a vehicle 
with a seating capacity of 16 or fewer passengers (including the driver) 
for use on the system, it shall ensure that the vehicle is readily 
accessible to and usable by individuals with disabilities, including 
individuals who use wheelchairs, unless the system, when viewed in its 
entirety, meets the standard for equivalent service of Sec.  37.105 of 
this part.
    (d) Demand Responsive System, Vehicle Capacity Over 16. If the 
entity operates a demand responsive system, and purchases or leases a 
vehicle with a seating capacity of over 16 passengers (including the 
driver) for use on the system, it shall ensure that the vehicle is 
readily accessible to and usable by individuals with disabilities, 
including individuals who use wheelchairs, unless

[[Page 456]]

the system, when viewed in its entirety, meets the standard for 
equivalent service of Sec.  37.105 of this part.
    (e) Demand Responsive System, Vehicle Capacity of 16 or Fewer. 
Entities providing demand responsive transportation covered under this 
section are not specifically required to ensure that new vehicles with 
seating capacity of 16 or fewer are accessible to individuals with 
wheelchairs. These entities are required to ensure that their systems, 
when viewed in their entirety, meet the equivalent service requirements 
of Sec. Sec.  37.171 and 37.105, regardless of whether or not the 
entities purchase a new vehicle.

[56 FR 45621, Sept. 6, 1991, as amended at 61 FR 25416, May 21, 1996]



Sec.  37.103  Purchase or lease of new non-rail vehicles by private 
entities primarily engaged in the business of transporting people.

    (a) Application. This section applies to all acquisitions of new 
vehicles by private entities which are primarily engaged in the business 
of transporting people and whose operations affect commerce, in which a 
solicitation for the vehicle is made (except as provided in paragraph 
(d) of this section) after August 25, 1990.
    (b) Fixed route systems. If the entity operates a fixed route 
system, and purchases or leases a new vehicle other than an automobile, 
a van with a seating capacity of less than eight persons (including the 
driver), it shall ensure that the vehicle is readily accessible to and 
usable by individuals with disabilities, including individuals who use 
wheelchairs.
    (c) Demand responsive systems. If the entity operates a demand 
responsive system, and purchases or leases a new vehicle other than an 
automobile, a van with a seating capacity of less than eight persons 
(including the driver), it shall ensure that the vehicle is readily 
accessible to and usable by individuals with disabilities, including 
individuals who use wheelchairs, unless the system, when viewed in its 
entirety, meets the standard for equivalent service of Sec.  37.105 of 
this part.
    (d) Vans with a capacity of fewer than 8 persons. If the entity 
operates either a fixed route or demand responsive system, and purchases 
or leases a new van with a seating capacity of fewer than eight persons 
including the driver (the solicitation for the vehicle being made after 
February 25, 1992), the entity shall ensure that the vehicle is readily 
accessible to and usable by individuals with disabilities, including 
individuals who use wheelchairs, unless the system, when viewed in its 
entirety, meets the standard for equivalent service of Sec.  37.105 of 
this part.

[56 FR 45621, Sept. 6, 1991, as amended at 76 FR 57936, Sept. 19, 2011]



Sec.  37.105  Equivalent service standard.

    For purposes of Sec. Sec.  37.101 and 37.103 of this part, a fixed 
route system or demand responsive system, when viewed in its entirety, 
shall be deemed to provide equivalent service if the service available 
to individuals with disabilities, including individuals who use 
wheelchairs, is provided in the most integrated setting appropriate to 
the needs of the individual and is equivalent to the service provided 
other individuals with respect to the following service characteristics:
    (a) (1) Schedules/headways (if the system is fixed route);
    (2) Response time (if the system is demand responsive);
    (b) Fares;
    (c) Geographic area of service;
    (d) Hours and days of service;
    (e) Availability of information;
    (f) Reservations capability (if the system is demand responsive);
    (g) Any constraints on capacity or service availability;
    (h) Restrictions priorities based on trip purpose (if the system is 
demand responsive).



Sec.  37.107  Acquisition of passenger rail cars by private entities
primarily engaged in the business of transporting people.

    (a) A private entity which is primarily engaged in the business of 
transporting people and whose operations affect commerce, which makes a 
solicitation after February 25, 1992, to purchase or lease a new rail 
passenger car to be used in providing specified public transportation, 
shall ensure that the car is readily accessible to,

[[Page 457]]

and usable by, individuals with disabilities, including individuals who 
use wheelchairs. The accessibility standards in part 38 of this title 
which apply depend upon the type of service in which the car will be 
used.
    (b) Except as provided in paragraph (c) of this section, a private 
entity which is primarily engaged in transporting people and whose 
operations affect commerce, which remanufactures a rail passenger car to 
be used in providing specified public transportation to extend its 
useful life for ten years or more, or purchases or leases such a 
remanufactured rail car, shall ensure that the rail car, to the maximum 
extent feasible, is made readily accessible to and usable by individuals 
with disabilities, including individuals who use wheelchairs. For 
purposes of this paragraph, it shall be considered feasible to 
remanufacture a rail passenger car to be readily accessible to and 
usable by individuals with disabilities, including individuals who use 
wheelchairs, unless an engineering analysis demonstrates that doing so 
would have a significant adverse effect on the structural integrity of 
the car.
    (c) Compliance with paragraph (b) of this section is not required to 
the extent that it would significantly alter the historic or antiquated 
character of a historic or antiquated rail passenger car, or a rail 
station served exclusively by such cars, or would result in the 
violation of any rule, regulation, standard or order issued by the 
Secretary under the Federal Railroad Safety Act of 1970. For purposes of 
this section, a historic or antiquated rail passenger car means a rail 
passenger car--
    (1) Which is not less than 30 years old at the time of its use for 
transporting individuals;
    (2) The manufacturer of which is no longer in the business of 
manufacturing rail passenger cars; and
    (3) Which--
    (i) Has a consequential association with events or persons 
significant to the past; or
    (ii) Embodies, or is being restored to embody, the distinctive 
characteristics of a type of rail passenger car used in the past, or to 
represent a time period which has passed.



Sec.  37.109  Ferries and other passenger vessels operated by private
entities. [Reserved]



Sec. Sec.  37.111-37.119  [Reserved]



      Subpart F_Paratransit as a Complement to Fixed Route Service



Sec.  37.121  Requirement for comparable complementary paratransit service.

    (a) Except as provided in paragraph (c) of this section, each public 
entity operating a fixed route system shall provide paratransit or other 
special service to individuals with disabilities that is comparable to 
the level of service provided to individuals without disabilities who 
use the fixed route system.
    (b) To be deemed comparable to fixed route service, a complementary 
paratransit system shall meet the requirements of Sec. Sec.  37.123-
37.133 of this subpart. The requirement to comply with Sec.  37.131 may 
be modified in accordance with the provisions of this subpart relating 
to undue financial burden.
    (c) Requirements for complementary paratransit do not apply to 
commuter bus, commuter rail, or intercity rail systems.



Sec.  37.123  ADA paratransit eligibility: Standards.

    (a) Public entities required by Sec.  37.121 of this subpart to 
provide complementary paratransit service shall provide the service to 
the ADA paratransit eligible individuals described in paragraph (e) of 
this section.
    (b) If an individual meets the eligibility criteria of this section 
with respect to some trips but not others, the individual shall be ADA 
paratransit eligible only for those trips for which he or she meets the 
criteria.
    (c) Individuals may be ADA paratransit eligible on the basis of a 
permanent or temporary disability.
    (d) Public entities may provide complementary paratransit service to 
persons other than ADA paratransit eligible individuals. However, only 
the cost of service to ADA paratransit eligible

[[Page 458]]

individuals may be considered in a public entity's request for an undue 
financial burden waiver under Sec. Sec.  37.151-37.155 of this part.
    (e) The following individuals are ADA paratransit eligible:
    (1) Any individual with a disability who is unable, as the result of 
a physical or mental impairment (including a vision impairment), and 
without the assistance of another individual (except the operator of a 
wheelchair lift or other boarding assistance device), to board, ride, or 
disembark from any vehicle on the system which is readily accessible to 
and usable individuals with disabilities.
    (2) Any individual with a disability who needs the assistance of a 
wheelchair lift or other boarding assistance device and is able, with 
such assistance, to board, ride and disembark from any vehicle which is 
readily accessible to and usable by individuals with disabilities if the 
individual wants to travel on a route on the system during the hours of 
operation of the system at a time, or within a reasonable period of such 
time, when such a vehicle is not being used to provide designated public 
transportation on the route.
    (i) An individual is eligible under this paragraph with respect to 
travel on an otherwise accessible route on which the boarding or 
disembarking location which the individual would use is one at which 
boarding or disembarking from the vehicle is precluded as provided in 
Sec.  37.167(g) of this part.
    (ii) An individual using a common wheelchair is eligible under this 
paragraph if the individual's wheelchair cannot be accommodated on an 
existing vehicle (e.g., because the vehicle's lift does not meet the 
standards of part 38 of this title), even if that vehicle is accessible 
to other individuals with disabilities and their mobility wheelchairs.
    (iii) With respect to rail systems, an individual is eligible under 
this paragraph if the individual could use an accessible rail system, 
but--
    (A) There is not yet one accessible car per train on the system; or
    (B) Key stations have not yet been made accessible.
    (3) Any individual with a disability who has a specific impairment-
related condition which prevents such individual from traveling to a 
boarding location or from a disembarking location on such system.
    (i) Only a specific impairment-related condition which prevents the 
individual from traveling to a boarding location or from a disembarking 
location is a basis for eligibility under this paragraph. A condition 
which makes traveling to boarding location or from a disembarking 
location more difficult for a person with a specific impairment-related 
condition than for an individual who does not have the condition, but 
does not prevent the travel, is not a basis for eligibility under this 
paragraph.
    (ii) Architectural barriers not under the control of the public 
entity providing fixed route service and environmental barriers (e.g., 
distance, terrain, weather) do not, standing alone, form a basis for 
eligibility under this paragraph. The interaction of such barriers with 
an individual's specific impairment-related condition may form a basis 
for eligibility under this paragraph, if the effect is to prevent the 
individual from traveling to a boarding location or from a disembarking 
location.
    (f) Individuals accompanying an ADA paratransit eligible individual 
shall be provided service as follows:
    (1) One other individual accompanying the ADA paratransit eligible 
individual shall be provided service--
    (i) If the ADA paratransit eligible individual is traveling with a 
personal care attendant, the entity shall provide service to one other 
individual in addition to the attendant who is accompanying the eligible 
individual;
    (ii) A family member or friend is regarded as a person accompanying 
the eligible individual, and not as a personal care attendant, unless 
the family member or friend registered is acting in the capacity of a 
personal care attendant;
    (2) Additional individuals accompanying the ADA paratransit eligible 
individual shall be provided service, provided that space is available 
for

[[Page 459]]

them on the paratransit vehicle carrying the ADA paratransit eligible 
individual and that transportation of the additional individuals will 
not result in a denial of service to ADA paratransit eligible 
individuals;
    (3) In order to be considered as ``accompanying'' the eligible 
individual for purposes of this paragraph (f), the other individual(s) 
shall have the same origin and destination as the eligible individual.



Sec.  37.125  ADA paratransit eligibility: Process.

    Each public entity required to provide complementary paratransit 
service by Sec.  37.121 of this part shall establish a process for 
determining ADA paratransit eligibility.
    (a) The process shall strictly limit ADA paratransit eligibility to 
individuals specified in Sec.  37.123 of this part.
    (b) All information about the process, materials necessary to apply 
for eligibility, and notices and determinations concerning eligibility 
shall be made available in accessible formats, upon request.
    (c) If, by a date 21 days following the submission of a complete 
application, the entity has not made a determination of eligibility, the 
applicant shall be treated as eligible and provided service until and 
unless the entity denies the application.
    (d) The entity's determination concerning eligibility shall be in 
writing. If the determination is that the individual is ineligible, the 
determination shall state the reasons for the finding.
    (e) The public entity shall provide documentation to each eligible 
individual stating that he or she is ``ADA Paratransit Eligible.'' The 
documentation shall include the name of the eligible individual, the 
name of the transit provider, the telephone number of the entity's 
paratransit coordinator, an expiration date for eligibility, and any 
conditions or limitations on the individual's eligibility including the 
use of a personal care attendant.
    (f) The entity may require recertification of the eligibility of ADA 
paratransit eligible individuals at reasonable intervals.
    (g) The entity shall establish an administrative appeal process 
through which individuals who are denied eligibility can obtain review 
of the denial.
    (1) The entity may require that an appeal be filed within 60 days of 
the denial of an individual's application.
    (2) The process shall include an opportunity to be heard and to 
present information and arguments, separation of functions (i.e., a 
decision by a person not involved with the initial decision to deny 
eligibility), and written notification of the decision, and the reasons 
for it.
    (3) The entity is not required to provide paratransit service to the 
individual pending the determination on appeal. However, if the entity 
has not made a decision within 30 days of the completion of the appeal 
process, the entity shall provide paratransit service from that time 
until and unless a decision to deny the appeal is issued.
    (h) The entity may establish an administrative process to suspend, 
for a reasonable period of time, the provision of complementary 
paratransit service to ADA eligible individuals who establish a pattern 
or practice of missing scheduled trips.
    (1) Trips missed by the individual for reasons beyond his or her 
control (including, but not limited to, trips which are missed due to 
operator error) shall not be a basis for determining that such a pattern 
or practice exists.
    (2) Before suspending service, the entity shall take the following 
steps:
    (i) Notify the individual in writing that the entity proposes to 
suspend service, citing with specificity the basis of the proposed 
suspension and setting forth the proposed sanction.
    (ii) Provide the individual an opportunity to be heard and to 
present information and arguments;
    (iii) Provide the individual with written notification of the 
decision and the reasons for it.
    (3) The appeals process of paragraph (g) of this section is 
available to an individual on whom sanctions have been imposed under 
this paragraph. The sanction is stayed pending the outcome of the 
appeal.
    (i) In applications for ADA paratransit eligibility, the entity may 
require the applicant to indicate whether or not he or she travels with 
a personal care attendant.

[[Page 460]]



Sec.  37.127  Complementary paratransit service for visitors.

    (a) Each public entity required to provide complementary paratransit 
service under Sec.  37.121 of this part shall make the service available 
to visitors as provided in this section.
    (b) For purposes of this section, a visitor is an individual with 
disabilities who does not reside in the jurisdiction(s) served by the 
public entity or other entities with which the public entity provides 
coordinated complementary paratransit service within a region.
    (c) Each public entity shall treat as eligible for its complementary 
paratransit service all visitors who present documentation that they are 
ADA paratransit eligible, under the criteria of Sec.  37.125 of this 
part, in the jurisdiction in which they reside.
    (d) With respect to visitors with disabilities who do not present 
such documentation, the public entity may require the documentation of 
the individual's place of residence and, if the individual's disability 
is not apparent, of his or her disability. The entity shall provide 
paratransit service to individuals with disabilities who qualify as 
visitors under paragraph (b) of this section. The entity shall accept a 
certification by such individuals that they are unable to use fixed 
route transit.
    (e) A public entity shall make the service to a visitor required by 
this section available for any combination of 21 days during any 365-day 
period beginning with the visitor's first use of the service during such 
365-day period. In no case shall the public entity require a visitor to 
apply for or receive eligibility certification from the public entity 
before receiving the service required by this section.

[56 FR 45621, Sept. 6, 1991, as amended at 61 FR 25416, May 21, 1996]



Sec.  37.129  Types of service.

    (a) Except as provided in this section, complementary paratransit 
service for ADA paratransit eligible persons shall be origin-to-
destination service.
    (b) Complementary paratransit service for ADA paratransit eligible 
persons described in Sec.  37.123(e)(2) of this part may also be 
provided by on-call bus service or paratransit feeder service to an 
accessible fixed route, where such service enables the individual to use 
the fixed route bus system for his or her trip.
    (c) Complementary paratransit service for ADA eligible persons 
described in Sec.  37.123(e)(3) of this part also may be provided by 
paratransit feeder service to and/or from an accessible fixed route.



Sec.  37.131  Service criteria for complementary paratransit.

    The following service criteria apply to complementary paratransit 
required by Sec.  37.121 of this part.
    (a) Service Area--(1) Bus. (i) The entity shall provide 
complementary paratransit service to origins and destinations within 
corridors with a width of three-fourths of a mile on each side of each 
fixed route. The corridor shall include an area with a three-fourths of 
a mile radius at the ends of each fixed route.
    (ii) Within the core service area, the entity also shall provide 
service to small areas not inside any of the corridors but which are 
surrounded by corridors.
    (iii) Outside the core service area, the entity may designate 
corridors with widths from three-fourths of a mile up to one and one 
half miles on each side of a fixed route, based on local circumstances.
    (iv) For purposes of this paragraph, the core service area is that 
area in which corridors with a width of three-fourths of a mile on each 
side of each fixed route merge together such that, with few and small 
exceptions, all origins and destinations within the area would be 
served.
    (2) Rail. (i) For rail systems, the service area shall consist of a 
circle with a radius of \3/4\ of a mile around each station.
    (ii) At end stations and other stations in outlying areas, the 
entity may designate circles with radii of up to 1\1/2\ miles as part of 
its service area, based on local circumstances.
    (3) Jurisdictional boundaries. Notwithstanding any other provision 
of this paragraph, an entity is not required to provide paratransit 
service in an area

[[Page 461]]

outside the boundaries of the jurisdiction(s) in which it operates, if 
the entity does not have legal authority to operate in that area. The 
entity shall take all practicable steps to provide paratransit service 
to any part of its service area.
    (b) Response time. The entity shall schedule and provide paratransit 
service to any ADA paratransit eligible person at any requested time on 
a particular day in response to a request for service made the previous 
day. Reservations may be taken by reservation agents or by mechanical 
means.
    (1) The entity shall make reservation service available during at 
least all normal business hours of the entity's administrative offices, 
as well as during times, comparable to normal business hours, on a day 
when the entity's offices are not open before a service day.
    (2) The entity may negotiate pickup times with the individual, but 
the entity shall not require an ADA paratransit eligible individual to 
schedule a trip to begin more than one hour before or after the 
individual's desired departure time.
    (3) The entity may use real-time scheduling in providing 
complementary paratransit service.
    (4) The entity may permit advance reservations to be made up to 14 
days in advance of an ADA paratransit eligible individual's desired 
trips. When an entity proposes to change its reservations system, it 
shall comply with the public participation requirements equivalent to 
those of Sec.  37.137 (b) and (c).
    (c) Fares. The fare for a trip charged to an ADA paratransit 
eligible user of the complementary paratransit service shall not exceed 
twice the fare that would be charged to an individual paying full fare 
(i.e., without regard to discounts) for a trip of similar length, at a 
similar time of day, on the entity's fixed route system.
    (1) In calculating the full fare that would be paid by an individual 
using the fixed route system, the entity may include transfer and 
premium charges applicable to a trip of similar length, at a similar 
time of day, on the fixed route system.
    (2) The fares for individuals accompanying ADA paratransit eligible 
individuals, who are provided service under Sec.  37.123 (f) of this 
part, shall be the same as for the ADA paratransit eligible individuals 
they are accompanying.
    (3) A personal care attendant shall not be charged for complementary 
paratransit service.
    (4) The entity may charge a fare higher than otherwise permitted by 
this paragraph to a social service agency or other organization for 
agency trips (i.e., trips guaranteed to the organization).
    (d) Trip purpose restrictions. The entity shall not impose 
restrictions or priorities based on trip purpose.
    (e) Hours and days of service. The complementary paratransit service 
shall be available throughout the same hours and days as the entity's 
fixed route service.
    (f) Capacity constraints. The entity shall not limit the 
availability of complementary paratransit service to ADA paratransit 
eligible individuals by any of the following:
    (1) Restrictions on the number of trips an individual will be 
provided;
    (2) Waiting lists for access to the service; or
    (3) Any operational pattern or practice that significantly limits 
the availability of service to ADA paratransit eligible persons.
    (i) Such patterns or practices include, but are not limited to, the 
following:
    (A) Substantial numbers of significantly untimely pickups for 
initial or return trips;
    (B) Substantial numbers of trip denials or missed trips;
    (C) Substantial numbers of trips with excessive trip lengths.
    (ii) Operational problems attributable to causes beyond the control 
of the entity (including, but not limited to, weather or traffic 
conditions affecting all vehicular traffic that were not anticipated at 
the time a trip was scheduled) shall not be a basis for determining that 
such a pattern or practice exists.

[[Page 462]]

    (g) Additional service. Public entities may provide complementary 
paratransit service to ADA paratransit eligible individuals exceeding 
that provided for in this section. However, only the cost of service 
provided for in this section may be considered in a public entity's 
request for an undue financial burden waiver under Sec. Sec.  37.151-
37.155 of this part.

[56 FR 45621, Sept. 6, 1991, as amended at 61 FR 25416, May 21, 1996; 71 
FR 63266, Oct. 30, 2006]



Sec.  37.133  Subscription service.

    (a) This part does not prohibit the use of subscription service by 
public entities as part of a complementary paratransit system, subject 
to the limitations in this section.
    (b) Subscription service may not absorb more than fifty percent of 
the number of trips available at a given time of day, unless there is 
non-subscription capacity.
    (c) Notwithstanding any other provision of this part, the entity may 
establish waiting lists or other capacity constraints and trip purpose 
restrictions or priorities for participation in the subscription service 
only.



Sec.  37.135  Submission of paratransit plan.

    (a) General. Each public entity operating fixed route transportation 
service, which is required by Sec.  37.121 to provide complementary 
paratransit service, shall develop a paratransit plan.
    (b) Initial submission. Except as provided in Sec.  37.141 of this 
part, each entity shall submit its initial plan for compliance with the 
complementary paratransit service provision by January 26, 1992, to the 
appropriate location identified in paragraph (f) of this section.
    (c) Annual Updates. Except as provided in this paragraph, each 
entity shall submit an annual update to its plan on January 26 of each 
succeeding year.
    (1) If an entity has met and is continuing to meet all requirements 
for complementary paratransit in Sec. Sec.  37.121-37.133 of this part, 
the entity may submit to FTA an annual certification of continued 
compliance in lieu of a plan update. Entities that have submitted a 
joint plan under Sec.  37.141 may submit a joint certification under 
this paragraph. The requirements of Sec. Sec.  37.137 (a) and (b), 
37.138 and 37.139 do not apply when a certification is submitted under 
this paragraph.
    (2) In the event of any change in circumstances that results in an 
entity which has submitted a certification of continued compliance 
falling short of compliance with Sec. Sec.  37.121-37.133, the entity 
shall immediately notify FTA in writing of the problem. In this case, 
the entity shall also file a plan update meeting the requirements of 
Sec. Sec.  37.137-37.139 of this part on the next following January 26 
and in each succeeding year until the entity returns to full compliance.
    (3) An entity that has demonstrated undue financial burden to the 
FTA shall file a plan update meeting the requirements of Sec. Sec.  
37.137-37.139 of this part on each January 26 until full compliance with 
Sec. Sec.  37.121-37.133 is attained.
    (4) If FTA reasonably believes that an entity may not be fully 
complying with all service criteria, FTA may require the entity to 
provide an annual update to its plan.
    (d) Phase-in of implementation. Each plan shall provide full 
compliance by no later than January 26, 1997, unless the entity has 
received a waiver based on undue financial burden. If the date for full 
compliance specified in the plan is after January 26, 1993, the plan 
shall include milestones, providing for measured, proportional progress 
toward full compliance.
    (e) Plan implementation. Each entity shall begin implementation of 
its plan on January 26, 1992.
    (f) Submission locations. An entity shall submit its plan to one of 
the following offices, as appropriate:
    (1) The individual state administering agency, if it is--
    (i) A recipient of funding under 49 U.S.C. 5311;
    (ii) A small urbanized area recipient of funding under 49 U.S.C. 
5307 administered by the State;
    (iii) A participant in a coordinated plan, in which all of the 
participating entities are eligible to submit their plans to the State; 
or
    (2) The FTA Regional Office (as listed in appendix B to this part) 
for all other

[[Page 463]]

entities required to submit a paratransit plan. This includes an FTA 
recipient under 49 U.S.C. 5307; entities submitting a joint plan (unless 
they meet the requirements of paragraph (f)(1)(iii) of this section), 
and a public entity not an FTA recipient.

[56 FR 45621, Sept. 6, 1991, as amended at 61 FR 25416, May 21, 1996; 61 
FR 26468, May 28, 1996; 79 FR 21406, Apr. 16, 2014]



Sec.  37.137  Paratransit plan development.

    (a) Survey of existing services. Each submitting entity shall survey 
the area to be covered by the plan to identify any person or entity 
(public or private) which provides a paratransit or other special 
transportation service for ADA paratransit eligible individuals in the 
service area to which the plan applies.
    (b) Public participation. Each submitting entity shall ensure public 
participation in the development of its paratransit plan, including at 
least the following:
    (1) Outreach. Each submitting entity shall solicit participation in 
the development of its plan by the widest range of persons anticipated 
to use its paratransit service. Each entity shall develop contacts, 
mailing lists and other appropriate means for notification of 
opportunities to participate in the development of the paratransit plan;
    (2) Consultation with individuals with disabilities. Each entity 
shall contact individuals with disabilities and groups representing them 
in the community. Consultation shall begin at an early stage in the plan 
development and should involve persons with disabilities in all phases 
of plan development. All documents and other information concerning the 
planning procedure and the provision of service shall be available, upon 
request, to members of the public, except where disclosure would be an 
unwarranted invasion of personal privacy;
    (3) Opportunity for public comment. The submitting entity shall make 
its plan available for review before the plan is finalized. In making 
the plan available for public review, the entity shall ensure that the 
plan is available upon request in accessible formats;
    (4) Public hearing. The entity shall sponsor at a minimum one public 
hearing and shall provide adequate notice of the hearing, including 
advertisement in appropriate media, such as newspapers of general and 
special interest circulation and radio announcements; and
    (5) Special requirements. If the entity intends to phase-in its 
paratransit service over a multi-year period, or request a waiver based 
on undue financial burden, the public hearing shall afford the 
opportunity for interested citizens to express their views concerning 
the phase-in, the request, and which service criteria may be delayed in 
implementation.
    (c) Ongoing requirement. The entity shall create an ongoing 
mechanism for the participation of individuals with disabilities in the 
continued development and assessment of services to persons with 
disabilities. This includes, but is not limited to, the development of 
the initial plan, any request for an undue financial burden waiver, and 
each annual submission.



Sec.  37.139  Plan contents.

    Each plan shall contain the following information:
    (a) Identification of the entity or entities submitting the plan, 
specifying for each--
    (1) Name and address; and
    (2) Contact person for the plan, with telephone number and facsimile 
telephone number (FAX), if applicable.
    (b) A description of the fixed route system as of January 26, 1992 
(or subsequent year for annual updates), including--
    (1) A description of the service area, route structure, days and 
hours of service, fare structure, and population served. This includes 
maps and tables, if appropriate;
    (2) The total number of vehicles (bus, van, or rail) operated in 
fixed route service (including contracted service), and percentage of 
accessible vehicles and percentage of routes accessible to and usable by 
persons with disabilities, including persons who use wheelchairs;
    (3) Any other information about the fixed route service that is 
relevant to establishing the basis for comparability of fixed route and 
paratransit service.
    (c) A description of existing paratransit services, including:

[[Page 464]]

    (1) An inventory of service provided by the public entity submitting 
the plan;
    (2) An inventory of service provided by other agencies or 
organizations, which may in whole or in part be used to meet the 
requirement for complementary paratransit service; and
    (3) A description of the available paratransit services in 
paragraphs (c)(2) and (c)(3) of this section as they relate to the 
service criteria described in Sec.  37.131 of this part of service area, 
response time, fares, restrictions on trip purpose, hours and days of 
service, and capacity constraints; and to the requirements of ADA 
paratransit eligibility.
    (d) A description of the plan to provide comparable paratransit, 
including:
    (1) An estimate of demand for comparable paratransit service by ADA 
eligible individuals and a brief description of the demand estimation 
methodology used;
    (2) An analysis of differences between the paratransit service 
currently provided and what is required under this part by the 
entity(ies) submitting the plan and other entities, as described in 
paragraph (c) of this section;
    (3) A brief description of planned modifications to existing 
paratransit and fixed route service and the new paratransit service 
planned to comply with the ADA paratransit service criteria;
    (4) A description of the planned comparable paratransit service as 
it relates to each of the service criteria described in Sec.  37.131 of 
this part--service area, absence of restrictions or priorities based on 
trip purpose, response time, fares, hours and days of service, and lack 
of capacity constraints. If the paratransit plan is to be phased in, 
this paragraph shall be coordinated with the information being provided 
in paragraphs (d)(5) and (d)(6) of this paragraph;
    (5) A timetable for implementing comparable paratransit service, 
with a specific date indicating when the planned service will be 
completely operational. In no case may full implementation be completed 
later than January 26, 1997. The plan shall include milestones for 
implementing phases of the plan, with progress that can be objectively 
measured yearly;
    (6) A budget for comparable paratransit service, including capital 
and operating expenditures over five years.
    (e) A description of the process used to certify individuals with 
disabilities as ADA paratransit eligible. At a minimum, this must 
include--
    (1) A description of the application and certification process, 
including--
    (i) The availability of information about the process and 
application materials inaccessible formats;
    (ii) The process for determining eligibility according to the 
provisions of Sec. Sec.  37.123-37.125 of this part and notifying 
individuals of the determination made;
    (iii) The entity's system and timetable for processing applications 
and allowing presumptive eligibility; and
    (iv) The documentation given to eligible individuals.
    (2) A description of the administrative appeals process for 
individuals denied eligibility.
    (3) A policy for visitors, consistent with Sec.  37.127 of this 
part.
    (f) Description of the public participation process including--
    (1) Notice given of opportunity for public comment, the date(s) of 
completed public hearing(s), availability of the plan in accessible 
formats, outreach efforts, and consultation with persons with 
disabilities.
    (2) A summary of significant issues raised during the public comment 
period, along with a response to significant comments and discussion of 
how the issues were resolved.
    (g) Efforts to coordinate service with other entities subject to the 
complementary paratransit requirements of this part which have 
overlapping or contiguous service areas or jurisdictions.
    (h) The following endorsements or certifications:
    (1) A resolution adopted by the board of the entity authorizing the 
plan, as submitted. If more than one entity is submitting the plan there 
must be an authorizing resolution from each board. If the entity does 
not function with a board, a statement shall be submitted by the 
entity's chief executive;
    (2) In urbanized areas, certification by the Metropolitan Planning 
Organization (MPO) that it has reviewed the

[[Page 465]]

plan and that the plan is in conformance with the transportation plan 
developed under the Federal Transit/Federal Highway Administration joint 
planning regulation (49 CFR part 613 and 23 CFR part 450). In a service 
area which is covered by more than one MPO, each applicable MPO shall 
certify conformity of the entity's plan. The provisions of this 
paragraph do not apply to non-FTA recipients;
    (3) A certification that the survey of existing paratransit service 
was conducted as required in Sec.  37.137(a) of this part;
    (4) To the extent service provided by other entities is included in 
the entity's plan for comparable paratransit service, the entity must 
certify that:
    (i) ADA paratransit eligible individuals have access to the service;
    (ii) The service is provided in the manner represented; and
    (iii) Efforts will be made to coordinate the provision of 
paratransit service by other providers.
    (i) A request for a waiver based on undue financial burden, if 
applicable. The waiver request should include information sufficient for 
FTA to consider the factors in Sec.  37.155 of this part. If a request 
for an undue financial burden waiver is made, the plan must include a 
description of additional paratransit services that would be provided to 
achieve full compliance with the requirement for comparable paratransit 
in the event the waiver is not granted, and the timetable for the 
implementation of these additional services.
    (j) Annual plan updates. (1) The annual plan updates submitted 
January 26, 1993, and annually thereafter, shall include information 
necessary to update the information requirements of this section. 
Information submitted annually must include all significant changes and 
revisions to the timetable for implementation;
    (2) If the paratransit service is being phased in over more than one 
year, the entity must demonstrate that the milestones identified in the 
current paratransit plans have been achieved. If the milestones have not 
been achieved, the plan must explain any slippage and what actions are 
being taken to compensate for the slippage.
    (3) The annual plan must describe specifically the means used to 
comply with the public participation requirements, as described in Sec.  
37.137 of this part.



Sec.  37.141  Requirements for a joint paratransit plan.

    (a) Two or more entities with overlapping or contiguous service 
areas or jurisdictions may develop and submit a joint plan providing for 
coordinated paratransit service. Joint plans shall identify the 
participating entities and indicate their commitment to participate in 
the plan.
    (b) To the maximum extent feasible, all elements of the coordinated 
plan shall be submitted on January 26, 1992. If a coordinated plan is 
not completed by January 26, 1992, those entities intending to 
coordinate paratransit service must submit a general statement declaring 
their intention to provide coordinated service and each element of the 
plan specified in Sec.  37.139 to the extent practicable. In addition, 
the plan must include the following certifications from each entity 
involved in the coordination effort:
    (1) A certification that the entity is committed to providing ADA 
paratransit service as part of a coordinated plan.
    (2) A certification from each public entity participating in the 
plan that it will maintain current levels of paratransit service until 
the coordinated plan goes into effect.
    (c) Entities submitting the above certifications and plan elements 
in lieu of a completed plan on January 26, 1992, must submit a complete 
plan by July 26, 1992.
    (d) Filing of an individual plan does not preclude an entity from 
cooperating with other entities in the development or implementation of 
a joint plan. An entity wishing to join with other entities after its 
initial submission may do so by meeting the filing requirements of this 
section.



Sec.  37.143  Paratransit plan implementation.

    (a) Each entity shall begin implementation of its complementary 
paratransit plan, pending notice from FTA. The implementation of the 
plan shall

[[Page 466]]

be consistent with the terms of the plan, including any specified phase-
in period.
    (b) If the plan contains a request for a wavier based on undue 
financial burden, the entity shall begin implementation of its plan, 
pending a determination on its waiver request.



Sec.  37.145  State comment on plans.

    Each state required to receive plans under Sec.  37.135 of this part 
shall:
    (a) Ensure that all applicable recipients of funding under 49 U.S.C. 
5307 or 49 U.S.C. 5311 have submitted plans.
    (b) Certify to FTA that all plans have been received.
    (c) Forward the required certification with comments on each plan to 
FTA. The plans, with comments, shall be submitted to FTA no later than 
April 1, 1992, for the first year and April 1 annually thereafter.
    (d) The State shall develop comments to on each plan, responding to 
the following points:
    (1) Was the plan filed on time?
    (2) Does the plan appear reasonable?
    (3) Are there circumstances that bear on the ability of the grantee 
to carry out the plan as represented? If yes, please elaborate.
    (4) Is the plan consistent with statewide planning activities?
    (5) Are the necessary anticipated financial and capital resources 
identified in the plan accurately estimated?

[56 FR 45621, Sept. 6, 1991, as amended at 79 FR 21406, Apr. 16, 2014]



Sec.  37.147  Considerations during FTA review.

    In reviewing each plan, at a minimum FTA will consider the 
following:
    (a) Whether the plan was filed on time;
    (b) Comments submitted by the state, if applicable;
    (c) Whether the plan contains responsive elements for each component 
required under Sec.  37.139 of this part;
    (d) Whether the plan, when viewed in its entirety, provides for 
paratransit service comparable to the entity's fixed route service;
    (e) Whether the entity complied with the public participation 
efforts required by this part; and
    (f) The extent to which efforts were made to coordinate with other 
public entities with overlapping or contiguous service areas or 
jurisdictions.



Sec.  37.149  Disapproved plans.

    (a) If a plan is disapproved in whole or in part, FTA will specify 
which provisions are disapproved. Each entity shall amend its plan 
consistent with this information and resubmit the plan to the 
appropriate FTA Regional Office within 90 days of receipt of the 
disapproval letter.
    (b) Each entity revising its plan shall continue to comply with the 
public participation requirements applicable to the initial development 
of the plan (set out in Sec.  37.137 of this part).



Sec.  37.151  Waiver for undue financial burden.

    If compliance with the service criteria of Sec.  37.131 of this part 
creates an undue financial burden, an entity may request a waiver from 
all or some of the provisions if the entity has complied with the public 
participation requirements in Sec.  37.137 of this part and if the 
following conditions apply:
    (a) At the time of submission of the initial plan on January 26, 
1992--
    (1) The entity determines that it cannot meet all of the service 
criteria by January 26, 1997; or
    (2) The entity determines that it cannot make measured progress 
toward compliance in any year before full compliance is required. For 
purposes of this part, measured progress means implementing milestones 
as scheduled, such as incorporating an additional paratransit service 
criterion or improving an aspect of a specific service criterion.
    (b) At the time of its annual plan update submission, if the entity 
believes that circumstances have changed since its last submission, and 
it is no longer able to comply by January 26, 1997, or make measured 
progress in any year before 1997, as described in paragraph (a)(2) of 
this section.



Sec.  37.153  FTA waiver determination.

    (a) The Administrator will determine whether to grant a waiver for 
undue financial burden on a case-by-case basis, after considering the 
factors identified

[[Page 467]]

in Sec.  37.155 of this part and the information accompanying the 
request. If necessary, the Administrator will return the application 
with a request for additional information.
    (b) Any waiver granted will be for a limited and specified period of 
time.
    (c) If the Administrator grants the applicant a waiver, the 
Administrator will do one of the following:
    (1) Require the public entity to provide complementary paratransit 
to the extent it can do so without incurring an undue financial burden. 
The entity shall make changes in its plan that the Administrator 
determines are appropriate to maximize the complementary paratransit 
service that is provided to ADA paratransit eligible individuals. When 
making changes to its plan, the entity shall use the public 
participation process specified for plan development and shall consider 
first a reduction in number of trips provided to each ADA paratransit 
eligible person per month, while attempting to meet all other service 
criteria.
    (2) Require the public entity to provide basic complementary 
paratransit services to all ADA paratransit eligible individuals, even 
if doing so would cause the public entity to incur an undue financial 
burden. Basic complementary paratransit service in corridors defined as 
provided in Sec.  37.131(a) along the public entity's key routes during 
core service hours.
    (i) For purposes of this section, key routes are defined as routes 
along which there is service at least hourly throughout the day.
    (ii) For purposes of this section, core service hours encompass at 
least peak periods, as these periods are defined locally for fixed route 
service, consistent with industry practice.
    (3) If the Administrator determines that the public entity will 
incur an undue financial burden as the result of providing basic 
complementary paratransit service, such that it is infeasible for the 
entity to provide basic complementary paratransit service, the 
Administrator shall require the public entity to coordinate with other 
available providers of demand responsive service in the area served by 
the public entity to maximize the service to ADA paratransit eligible 
individuals to the maximum extent feasible.



Sec.  37.155  Factors in decision to grant an undue financial burden
waiver.

    (a) In making an undue financial burden determination, the FTA 
Administrator will consider the following factors:
    (1) Effects on current fixed route service, including reallocation 
of accessible fixed route vehicles and potential reduction in service, 
measured by service miles;
    (2) Average number of trips made by the entity's general population, 
on a per capita basis, compared with the average number of trips to be 
made by registered ADA paratransit eligible persons, on a per capita 
basis;
    (3) Reductions in other services, including other special services;
    (4) Increases in fares;
    (5) Resources available to implement complementary paratransit 
service over the period covered by the plan;
    (6) Percentage of budget needed to implement the plan, both as a 
percentage of operating budget and a percentage of entire budget;
    (7) The current level of accessible service, both fixed route and 
paratransit;
    (8) Cooperation/coordination among area transportation providers;
    (9) Evidence of increased efficiencies, that have been or could be 
effectuated, that would benefit the level and quality of available 
resources for complementary paratransit service; and
    (10) Unique circumstances in the submitting entity's area that 
affect the ability of the entity to provide paratransit, that militate 
against the need to provide paratransit, or in some other respect create 
a circumstance considered exceptional by the submitting entity.
    (b)(1) Costs attributable to complementary paratransit shall be 
limited to costs of providing service specifically required by this part 
to ADA paratransit eligible individuals, by entities responsible under 
this part for providing such service.
    (2) If the entity determines that it is impracticable to distinguish 
between trips mandated by the ADA and other trips on a trip-by-trip 
basis, the entity

[[Page 468]]

shall attribute to ADA complementary paratransit requirements a 
percentage of its overall paratransit costs. This percentage shall be 
determined by a statistically valid methodology that determines the 
percentage of trips that are required by this part. The entity shall 
submit information concerning its methodology and the data on which its 
percentage is based with its request for a waiver. Only costs 
attributable to ADA-mandated trips may be considered with respect to a 
request for an undue financial burden waiver.
    (3) Funds to which the entity would be legally entitled, but which, 
as a matter of state or local funding arrangements, are provided to 
another entity and used by that entity to provide paratransit service 
which is part of a coordinated system of paratransit meeting the 
requirements of this part, may be counted in determining the burden 
associated with the waiver request.



Sec. Sec.  37.157-37.159  [Reserved]



                     Subpart G_Provision of Service



Sec.  37.161  Maintenance of accessible features: General.

    (a) Public and private entities providing transportation services 
shall maintain in operative condition those features of facilities and 
vehicles that are required to make the vehicles and facilities readily 
accessible to and usable by individuals with disabilities. These 
features include, but are not limited to, lifts and other means of 
access to vehicles, securement devices, elevators, signage and systems 
to facilitate communications with persons with impaired vision or 
hearing.
    (b) Accessibility features shall be repaired promptly if they are 
damaged or out of order. When an accessibility feature is out of order, 
the entity shall take reasonable steps to accommodate individuals with 
disabilities who would otherwise use the feature.
    (c) This section does not prohibit isolated or temporary 
interruptions in service or access due to maintenance or repairs.



Sec.  37.163  Keeping vehicle lifts in operative condition: Public 
entities.

    (a) This section applies only to public entities with respect to 
lifts in non-rail vehicles.
    (b) The entity shall establish a system of regular and frequent 
maintenance checks of lifts sufficient to determine if they are 
operative.
    (c) The entity shall ensure that vehicle operators report to the 
entity, by the most immediate means available, any failure of a lift to 
operate in service.
    (d) Except as provided in paragraph (e) of this section, when a lift 
is discovered to be inoperative, the entity shall take the vehicle out 
of service before the beginning of the vehicle's next service day and 
ensure that the lift is repaired before the vehicle returns to service.
    (e) If there is no spare vehicle available to take the place of a 
vehicle with an inoperable lift, such that taking the vehicle out of 
service will reduce the transportation service the entity is able to 
provide, the public entity may keep the vehicle in service with an 
inoperable lift for no more than five days (if the entity serves an area 
of 50,000 or less population) or three days (if the entity serves an 
area of over 50,000 population) from the day on which the lift is 
discovered to be inoperative.
    (f) In any case in which a vehicle is operating on a fixed route 
with an inoperative lift, and the headway to the next accessible vehicle 
on the route exceeds 30 minutes, the entity shall promptly provide 
alternative transportation to individuals with disabilities who are 
unable to use the vehicle because its lift does not work.



Sec.  37.165  Lift and securement use.

    (a) This section applies to public and private entities.
    (b) Except as provided in this section, individuals using 
wheelchairs shall be transported in the entity's vehicles or other 
conveyances.
    (1) With respect to wheelchair/occupant combinations that are larger 
or heavier than those to which the design standards for vehicles and 
equipment of 49 CFR part 38 refer, the entity must carry the wheelchair 
and occupant if the lift and vehicle can accommodate

[[Page 469]]

the wheelchair and occupant. The entity may decline to carry a 
wheelchair/occupant if the combined weight exceeds that of the lift 
specifications or if carriage of the wheelchair is demonstrated to be 
inconsistent with legitimate safety requirements.
    (2) The entity is not required to permit wheelchairs to ride in 
places other than designated securement locations in the vehicle, where 
such locations exist.
    (c)(1) For vehicles complying with part 38 of this title, the entity 
shall use the securement system to secure wheelchairs as provided in 
that Part.
    (2) For other vehicles transporting individuals who use wheelchairs, 
the entity shall provide and use a securement system to ensure that the 
wheelchair remains within the securement area.
    (3) The entity may require that an individual permit his or her 
wheelchair to be secured.
    (d) The entity may not deny transportation to a wheelchair or its 
user on the ground that the device cannot be secured or restrained 
satisfactorily by the vehicle's securement system.
    (e) The entity may recommend to a user of a wheelchair that the 
individual transfer to a vehicle seat. The entity may not require the 
individual to transfer.
    (f) Where necessary or upon request, the entity's personnel shall 
assist individuals with disabilities with the use of securement systems, 
ramps and lifts. If it is necessary for the personnel to leave their 
seats to provide this assistance, they shall do so.
    (g) The entity shall permit individuals with disabilities who do not 
use wheelchairs, including standees, to use a vehicle's lift or ramp to 
enter the vehicle. Provided, that an entity is not required to permit 
such individuals to use a lift Model 141 manufactured by EEC, Inc. If 
the entity chooses not to allow such individuals to use such a lift, it 
shall clearly notify consumers of this fact by signage on the exterior 
of the vehicle (adjacent to and of equivalent size with the 
accessibility symbol).

[56 FR 45621, Sept. 6, 1991, as amended at 58 FR 63103, Nov. 30, 1993; 
76 FR 57936, Sept. 19, 2011]



Sec.  37.167  Other service requirements.

    (a) This section applies to public and private entities.
    (b) On fixed route systems, the entity shall announce stops as 
follows:
    (1) The entity shall announce at least at transfer points with other 
fixed routes, other major intersections and destination points, and 
intervals along a route sufficient to permit individuals with visual 
impairments or other disabilities to be oriented to their location.
    (2) The entity shall announce any stop on request of an individual 
with a disability.
    (c) Where vehicles or other conveyances for more than one route 
serve the same stop, the entity shall provide a means by which an 
individual with a visual impairment or other disability can identify the 
proper vehicle to enter or be identified to the vehicle operator as a 
person seeking a ride on a particular route.
    (d) The entity shall permit service animals to accompany individuals 
with disabilities in vehicles and facilities.
    (e) The entity shall ensure that vehicle operators and other 
personnel make use of accessibility-related equipment or features 
required by part 38 of this title.
    (f) The entity shall make available to individuals with disabilities 
adequate information concerning transportation services. This obligation 
includes making adequate communications capacity available, through 
accessible formats and technology, to enable users to obtain information 
and schedule service.
    (g) The entity shall not refuse to permit a passenger who uses a 
lift to disembark from a vehicle at any designated stop, unless the lift 
cannot be deployed, the lift will be damaged if it is deployed, or 
temporary conditions at the stop, not under the control of the entity, 
preclude the safe use of the stop by all passengers.
    (h) The entity shall not prohibit an individual with a disability 
from traveling with a respirator or portable oxygen supply, consistent 
with applicable Department of Transportation rules on the transportation 
of hazardous materials (49 CFR subtitle B, chapter 1, subchapter C).

[[Page 470]]

    (i) The entity shall ensure that adequate time is provided to allow 
individuals with disabilities to complete boarding or disembarking from 
the vehicle.
    (j)(1) When an individual with a disability enters a vehicle, and 
because of a disability, the individual needs to sit in a seat or occupy 
a wheelchair securement location, the entity shall ask the following 
persons to move in order to allow the individual with a disability to 
occupy the seat or securement location:
    (i) Individuals, except other individuals with a disability or 
elderly persons, sitting in a location designated as priority seating 
for elderly and handicapped persons (or other seat as necessary);
    (ii) Individuals sitting in or a fold-down or other movable seat in 
a wheelchair securement location.
    (2) This requirement applies to light rail, rapid rail, and commuter 
rail systems only to the extent practicable.
    (3) The entity is not required to enforce the request that other 
passengers move from priority seating areas or wheelchair securement 
locations.
    (4) In all signage designating priority seating areas for elderly 
persons and persons with disabilities, or designating wheelchair 
securement areas, the entity shall include language informing persons 
sitting in these locations that they should comply with requests by 
transit provider personnel to vacate their seats to make room for an 
individual with a disability. This requirement applies to all fixed 
route vehicles when they are acquired by the entity or to new or 
replacement signage in the entity's existing fixed route vehicles.

[56 FR 45621, Sept. 6, 1991, as amended at 58 FR 63103, Nov. 30, 1993]



Sec.  37.169  Process to be used by public entities providing designated
public transportation service in considering requests for reasonable
modification.

    (a)(1) A public entity providing designated public transportation, 
in meeting the reasonable modification requirement of Sec.  37.5(i)(3) 
with respect to its fixed route, demand responsive, and complementary 
paratransit services, shall respond to requests for reasonable 
modification to policies and practices consistent with this section.
    (2) The public entity shall make information about how to contact 
the public entity to make requests for reasonable modifications readily 
available to the public through the same means it uses to inform the 
public about its policies and practices.
    (3) This process shall be in operation no later than July 13, 2015.
    (b) The process shall provide a means, accessible to and usable by 
individuals with disabilities, to request a modification in the entity's 
policies and practices applicable to its transportation services.
    (1) Individuals requesting modifications shall describe what they 
need in order to use the service.
    (2) Individuals requesting modifications are not required to use the 
term ``reasonable modification'' when making a request.
    (3) Whenever feasible, requests for modifications shall be made and 
determined in advance, before the transportation provider is expected to 
provide the modified service, for example, during the paratransit 
eligibility process, through customer service inquiries, or through the 
entity's complaint process.
    (4) Where a request for modification cannot practicably be made and 
determined in advance (e.g., because of a condition or barrier at the 
destination of a paratransit or fixed route trip of which the individual 
with a disability was unaware until arriving), operating personnel of 
the entity shall make a determination of whether the modification should 
be provided at the time of the request. Operating personnel may consult 
with the entity's management before making a determination to grant or 
deny the request.
    (c) Requests for modification of a public entity's policies and 
practices may be denied only on one or more of the following grounds:
    (1) Granting the request would fundamentally alter the nature of the 
entity's services, programs, or activities;
    (2) Granting the request would create a direct threat to the health 
or safety of others;
    (3) Without the requested modification, the individual with a 
disability is

[[Page 471]]

able to fully use the entity's services, programs, or activities for 
their intended purpose.
    (d) In determining whether to grant a requested modification, public 
entities shall be guided by the provisions of Appendix E to this Part.
    (e) In any case in which a public entity denies a request for a 
reasonable modification, the entity shall take, to the maximum extent 
possible, any other actions (that would not result in a direct threat or 
fundamental alteration) to ensure that the individual with a disability 
receives the services or benefit provided by the entity.
    (f)(1) Public entities are not required to obtain prior approval 
from the Department of Transportation for the process required by this 
section.
    (2) DOT agencies retain the authority to review an entity's process 
as part of normal program oversight.

[80 FR 13261, Mar. 13, 2015, as amended at 80 FR 26196, May 7, 2015]



Sec.  37.171  Equivalency requirement for demand responsive service 
operated by private entities not primarily engaged in the business of
transporting people.

    A private entity not primarily engaged in the business of 
transporting people which operates a demand responsive system shall 
ensure that its system, when viewed in its entirety, provides equivalent 
service to individuals with disabilities, including individuals who use 
wheelchairs, as it does to individuals without disabilities. The 
standards of Sec.  37.105 shall be used to determine if the entity is 
providing equivalent service.



Sec.  37.173  Training requirements.

    Each public or private entity which operates a fixed route or demand 
responsive system shall ensure that personnel are trained to 
proficiency, as appropriate to their duties, so that they operate 
vehicles and equipment safely and properly assist and treat individuals 
with disabilities who use the service in a respectful and courteous way, 
with appropriate attention to the difference among individuals with 
disabilities.



                  Subpart H_Over-the-Road Buses (OTRBs)

    Source: 63 FR 51690, Sept. 28, 1998, unless otherwise noted.



Sec.  37.181  Applicability dates.

    This subpart applies to all private entities that operate OTRBs. The 
requirements of the subpart begin to apply to large operators beginning 
October 30, 2000 and to small operators beginning October 29, 2001.



Sec.  37.183  Purchase or lease of new OTRBs by operators of
fixed-route systems.

    The following requirements apply to private entities that are 
primarily in the business of transporting people, whose operations 
affect commerce, and that operate a fixed-route system, with respect to 
OTRBs delivered to them on or after the date on which this subpart 
applies to them:
    (a) Large operators. If a large entity operates a fixed-route 
system, and purchases or leases a new OTRB for or in contemplation of 
use in that system, it shall ensure that the vehicle is readily 
accessible to and usable by individuals with disabilities, including 
individuals who use wheelchairs.
    (b) Small operators. If a small entity operates a fixed-route 
system, and purchases or leases a new OTRB for or in contemplation of 
use in that system, it must do one of the following two things:
    (1) Ensure that the vehicle is readily accessible to and usable by 
individuals with disabilities, including individuals who use 
wheelchairs; or
    (2) Ensure that equivalent service, as defined in Sec.  37.105, is 
provided to individuals with disabilities, including individuals who use 
wheelchairs. To meet this equivalent service standard, the service 
provided by the operator must permit a wheelchair user to travel in his 
or her own mobility aid.



Sec.  37.185  Fleet accessibility requirement for OTRB fixed-route 
systems of large operators.

    Each large operator subject to the requirements of Sec.  37.183 
shall ensure that--

[[Page 472]]

    (a) By October 30, 2006 no less than 50 percent of the buses in its 
fleet with which it provides fixed-route service are readily accessible 
to and usable by individuals with disabilities, including individuals 
who use wheelchairs.
    (b) By October 29, 2012, 100 percent of the buses in its fleet with 
which it provides fixed-route service are readily accessible to and 
usable by individuals with disabilities, including individuals who use 
wheelchairs.
    (c) Request for time extension. An operator may apply to the 
Secretary for a time extension of the fleet accessibility deadlines of 
this section. If he or she grants the request, the Secretary sets a 
specific date by which the operator must meet the fleet accessibility 
requirement. In determining whether to grant such a request, the 
Secretary considers the following factors:
    (1) Whether the operator has purchased or leased, since October 30, 
2000, enough new OTRBs to replace 50 percent of the OTRBs with which it 
provides fixed-route service by October 30, 2006 or 100 percent of such 
OTRBs by October 29, 2012;
    (2) Whether the operator has purchased or leased, between October 
28, 1998 and October 30, 2000, a number of new inaccessible OTRBs 
significantly exceeding the number of buses it would normally obtain in 
such a period;
    (3) The compliance with all requirements of this part by the 
operator over the period between October 28, 1998 and the request for 
time extension.



Sec.  37.187  Interline service.

    (a) When the general public can purchase a ticket or make a 
reservation with one operator for a fixed-route trip of two or more 
stages in which another operator provides service, the first operator 
must arrange for an accessible bus, or equivalent service, as 
applicable, to be provided for each stage of the trip to a passenger 
with a disability. The following examples illustrate the provisions of 
this paragraph (a):

    Example 1. By going to Operator X's ticket office or calling X for a 
reservation, a passenger can buy or reserve a ticket from Point A 
through to Point C, transferring at intermediate Point B to a bus 
operated by Operator Y. Operator X is responsible for communicating 
immediately with Operator Y to ensure that Y knows that a passenger 
needing accessible transportation or equivalent service, as applicable, 
is traveling from Point B to Point C. By immediate communication, we 
mean that the ticket or reservation agent for Operator X, by phone, fax, 
computer, or other instantaneous means, contacts Operator Y the minute 
the reservation or ticketing transaction with the passenger, as 
applicable, has been completed. It is the responsibility of each carrier 
to know how to contact carriers with which it interlines (e.g., Operator 
X must know Operator Y's phone number).
    Example 2. Operator X fails to provide the required information in a 
timely manner to Operator Y. Operator X is responsible for compensating 
the passenger for the consequent unavailability of an accessible bus or 
equivalent service, as applicable, on the B-C leg of the interline trip.

    (b) Each operator retains the responsibility for providing the 
transportation required by this subpart to the passenger for its portion 
of an interline trip. The following examples illustrate the provisions 
of this paragraph (b):

    Example 1. In Example 1 to paragraph (a) of this section, Operator X 
provides the required information to Operator Y in a timely fashion. 
However, Operator Y fails to provide an accessible bus or equivalent 
service to the passenger at Point B as the rules require. Operator Y is 
responsible for compensating the passenger as provided in Sec.  37.199.
    Example 2. Operator X provides the required information to Operator 
Y in a timely fashion. However, the rules require Operator Y to provide 
an accessible bus on 48 hours' advance notice (i.e., as a matter of 
interim service under Sec.  37.193(a) or service by a small mixed-
service operator under Sec.  37.191), and the passenger has purchased 
the ticket or made the reservation for the interline trip only 8 hours 
before Operator Y's bus leaves from Point B to go to Point C. In this 
situation, Operator Y is not responsible for providing an accessible bus 
to the passenger at Point B, any more than that it would be had the 
passenger directly contacted Operator Y to travel from Point B to Point 
C.

    (c) All fixed-route operators involved in interline service shall 
ensure that they have the capacity to receive communications at all 
times concerning interline service for passengers with disabilities. The 
following examples illustrate the provisions of this paragraph (c):

    Example 1. Operator Y's office is staffed only during normal weekday 
business hours. Operator Y must have a means of receiving communications 
from carriers with which it

[[Page 473]]

interlines (e.g., telephone answering machine, fax, computer) when no 
one is in the office.
    Example 2. Operator Y has the responsibility to monitor its 
communications devices at reasonable intervals to ensure that it can act 
promptly on the basis of messages received. If Operator Y receives a 
message from Operator X on its answering machine on Friday night, 
notifying Y of the need for an accessible bus on Monday morning, it has 
the responsibility of making sure that the accessible bus is there on 
Monday morning. Operator Y is not excused from its obligation because no 
one checked the answering machine over the weekend.



Sec.  37.189  Service requirement for OTRB demand-responsive systems.

    (a) This section applies to private entities primarily in the 
business of transporting people, whose operations affect commerce, and 
that provide demand-responsive OTRB service. Except as needed to meet 
the other requirements of this section, these entities are not required 
to purchase or lease accessible buses in connection with providing 
demand-responsive service.
    (b) Demand-responsive operators shall ensure that, beginning one 
year from the date on which the requirements of this subpart begin to 
apply to the entity, any individual with a disability who requests 
service in an accessible OTRB receives such service. This requirement 
applies to both large and small operators.
    (c) The operator may require up to 48 hours' advance notice to 
provide this service.
    (d) If the individual with a disability does not provide the advance 
notice the operator requires under paragraph (a) of this section, the 
operator shall nevertheless provide the service if it can do so by 
making a reasonable effort.
    (e) To meet this requirement, an operator is not required to 
fundamentally alter its normal reservation policies or to displace 
another passenger who has reserved a seat on the bus. The following 
examples illustrate the provisions of this paragraph (e):

    Example 1. A tour bus operator requires all passengers to reserve 
space on the bus three months before the trip date. This requirement 
applies to passengers with disabilities on the same basis as other 
passengers. Consequently, an individual passenger who is a wheelchair 
user would have to request an accessible bus at the time he or she made 
his reservation, at least three months before the trip date. If the 
individual passenger with a disability makes a request for space on the 
trip and an accessible OTRB 48 hours before the trip date, the operator 
could refuse the request because all passengers were required to make 
reservations three months before the trip date.
    Example 2. A group makes a reservation to charter a bus for a trip 
four weeks in advance. A week before the trip date, the group discovers 
that someone who signed up for the trip is a wheelchair user who needs 
an accessible bus, or someone who later buys a seat in the block of 
seats the group has reserved needs an accessible bus. A group 
representative or the passenger with a disability informs the bus 
company of this need more than 48 hours before the trip date. The bus 
company must provide an accessible bus.
    Example 3. While the operator's normal deadline for reserving space 
on a charter or tour trip has passed, a number of seats for a trip are 
unfilled. The operator permits members of the public to make late 
reservations for the unfilled seats. If a passenger with a disability 
calls 48 hours before the trip is scheduled to leave and requests a seat 
and the provision of an accessible OTRB, the operator must meet this 
request, as long as it does not displace another passenger with a 
reservation.
    Example 4. A tour bus trip is nearly sold out three weeks in advance 
of the trip date. A passenger with a disability calls 48 hours before 
the trip is scheduled to leave and requests a seat and the provision of 
an accessible OTRB. The operator need not meet this request if it will 
have the effect of displacing a passenger with an existing reservation. 
If other passengers would not be displaced, the operator must meet this 
request.



Sec.  37.191  Special provision for small mixed-service operators.

    (a) For purposes of this section, a small mixed-service operator is 
a small operator that provides both fixed-route and demand-responsive 
service and does not use more than 25 percent of its buses for fixed-
route service.
    (b) An operator meeting the criteria of paragraph (a) of this 
section may conduct all its trips, including fixed-route trips, on an 
advance-reservation basis as provided for demand-responsive trips in 
Sec.  37.189. Such an operator is not required to comply with the 
accessible bus acquisition/equivalent service obligations of Sec.  
37.183(b).

[[Page 474]]



Sec.  37.193  Interim service requirements.

    (a) Until 100 percent of the fleet of a large or small operator uses 
to provide fixed-route service is composed of accessible OTRBs, the 
operator shall meet the following interim service requirements:
    (1) Beginning one year from the date on which the requirements of 
this subpart begin to apply to the operator, it shall ensure that any 
individual with a disability that requests service in an accessible OTRB 
receives such service.
    (i) The operator may require up to 48 hours' advance notice to 
provide this service.
    (ii) If the individual with a disability does not provide the 
advance notice the operator requires, the operator shall nevertheless 
provide the service if it can do so by making a reasonable effort.
    (iii) If the trip on which the person with a disability wishes to 
travel is already provided by an accessible bus, the operator has met 
this requirement.
    (2) Interim service under this paragraph (a) is not required to be 
provided by a small operator who is providing equivalent service to its 
fixed-route service as provided in Sec.  37.183(b)(2).
    (b) Some small fixed-route operators may never have a fleet 100 
percent of which consists of accessible buses (e.g., a small fixed-route 
operator who exclusively or primarily purchases or leases used buses). 
Such an operator must continue to comply with the requirements of this 
section with respect to any service that is not provided entirely with 
accessible buses.
    (c) [Reserved]

[56 FR 45621, Sept. 6, 1991, as amended at 76 FR 57936, Sept. 19, 2011]



Sec.  37.195  Purchase or lease of OTRBs by private entities not
primarily in the business of transporting people.

    This section applies to all purchases or leases of new vehicles by 
private entities which are not primarily engaged in the business of 
transporting people, with respect to buses delivered to them on or after 
the date on which this subpart begins to apply to them.
    (a) Fixed-route systems. If the entity operates a fixed-route system 
and purchases or leases an OTRB for or in contemplation of use on the 
system, it shall meet the requirements of Sec.  37.183 (a) or (b), as 
applicable.
    (b) Demand-responsive systems. The requirements of Sec.  37.189 
apply to demand-responsive systems operated by private entities not 
primarily in the business of transporting people. If such an entity 
operates a demand-responsive system, and purchases or leases an OTRB for 
or in contemplation of use on the system, it is not required to purchase 
or lease an accessible bus except as needed to meet the requirements of 
Sec.  37.189.



Sec.  37.197  Remanufactured OTRBs.

    (a) This section applies to any private entity operating OTRBs that 
takes one of the following actions:
    (1) On or after the date on which this subpart applies to the 
entity, it remanufactures an OTRB so as to extend its useful life for 
five years or more or makes a solicitation for such remanufacturing; or
    (2) Purchases or leases an OTRB which has been remanufactured so as 
to extend its useful life for five years or more, where the purchase or 
lease occurs after the date on which this subpart applies to the entity 
and during the period in which the useful life of the vehicle is 
extended.
    (b) In any situation in which this subpart requires an entity 
purchasing or leasing a new OTRB to purchase or lease an accessible 
OTRB, OTRBs acquired through the actions listed in paragraph (a) of this 
section shall, to the maximum extent feasible, be readily accessible to 
and usable by individuals with disabilities, including individuals who 
use wheelchairs.
    (c) For purposes of this section, it shall be considered feasible to 
remanufacture an OTRB so as to be readily accessible to and usable by 
individuals with disabilities, including individuals who use 
wheelchairs, unless an engineering analysis demonstrates that including 
accessibility features required by this part would have a significant 
adverse effect on the structural integrity of the vehicle.

[[Page 475]]



Sec.  37.199  [Reserved]



Sec.  37.201  Intermediate and rest stops.

    (a) Whenever an OTRB makes an intermediate or rest stop, a passenger 
with a disability, including an individual using a wheelchair, shall be 
permitted to leave and return to the bus on the same basis as other 
passengers. The operator shall ensure that assistance is provided to 
passengers with disabilities as needed to enable the passenger to get on 
and off the bus at the stop (e.g., operate the lift and provide 
assistance with securement; provide other boarding assistance if needed, 
as in the case of a wheelchair user who has transferred to a vehicle 
seat because other wheelchair users occupied all securement locations).
    (b) If an OTRB operator owns, leases, or controls the facility at 
which a rest or intermediate stop is made, or if an OTRB operator 
contracts with the person who owns, leases, or controls such a facility 
to provide rest stop services, the OTRB operator shall ensure the 
facility complies fully with applicable requirements of the Americans 
with Disabilities Act.
    (c) If an OTRB equipped with an inaccessible restroom is making an 
express run of three hours or more without a rest stop, and a passenger 
with a disability who is unable to use the inaccessible restroom 
requests an unscheduled rest stop, the operator shall make a good faith 
effort to accommodate the request. The operator is not required to make 
the stop. However, if the operator does not make the stop, the operator 
shall explain to the passenger making the request the reason for its 
decision not to do so.



Sec.  37.203  Lift maintenance.

    (a) The entity shall establish a system of regular and frequent 
maintenance checks of lifts sufficient to determine if they are 
operative.
    (b) The entity shall ensure that vehicle operators report to the 
entity, by the most immediate means available, any failure of a lift to 
operate in service.
    (c) Except as provided in paragraph (d) of this section, when a lift 
is discovered to be inoperative, the entity shall take the vehicle out 
of service before the beginning of the vehicle's next trip and ensure 
that the lift is repaired before the vehicle returns to service.
    (d) If there is no other vehicle available to take the place of an 
OTRB with an inoperable lift, such that taking the vehicle out of 
service before its next trip will reduce the transportation service the 
entity is able to provide, the entity may keep the vehicle in service 
with an inoperable lift for no more than five days from the day on which 
the lift is discovered to be inoperative.



Sec.  37.205  Additional passengers who use wheelchairs.

    If a number of wheelchair users exceeding the number of securement 
locations on the bus seek to travel on a trip, the operator shall assign 
the securement locations on a first come-first served basis. The 
operator shall offer boarding assistance and the opportunity to sit in a 
vehicle seat to passengers who are not assigned a securement location. 
If the passengers who are not assigned securement locations are unable 
or unwilling to accept this offer, the operator is not required to 
provide transportation to them on the bus.



Sec.  37.207  Discriminatory practices.

    It shall be considered discrimination for any operator to--
    (a) Deny transportation to passengers with disabilities, except as 
provided in Sec.  37.5(h);
    (b) Use or request the use of persons other than the operator's 
employees (e.g., family members or traveling companions of a passenger 
with a disability, medical or public safety personnel) for routine 
boarding or other assistance to passengers with disabilities, unless the 
passenger requests or consents to assistance from such persons;
    (c) Require or request a passenger with a disability to reschedule 
his or her trip, or travel at a time other than the time the passenger 
has requested, in order to receive transportation as required by this 
subpart;
    (d) Fail to provide reservation services to passengers with 
disabilities equivalent to those provided other passengers; or

[[Page 476]]

    (e) Fail or refuse to comply with any applicable provision of this 
part.



Sec.  37.209  Training and other requirements.

    OTRB operators shall comply with the requirements of Sec. Sec.  
37.161, 37.165-37.167, and 37.173. For purposes of Sec.  37.173, 
``training to proficiency'' is deemed to include, as appropriate to the 
duties of particular employees, training in proper operation and 
maintenance of accessibility features and equipment, boarding 
assistance, securement of mobility aids, sensitive and appropriate 
interaction with passengers with disabilities, handling and storage of 
mobility devices, and familiarity with the requirements of this subpart. 
OTRB operators shall provide refresher training to personnel as needed 
to maintain proficiency.



Sec.  37.211  Effect of NHTSA and FHWA safety rules.

    OTRB operators are not required to take any action under this 
subpart that would violate an applicable National Highway Traffic Safety 
Administration or Federal Highway Administration safety rule.



Sec.  37.213  Information collection requirements.

    (a) This paragraph (a) applies to demand-responsive operators under 
Sec.  37.189 and fixed-route operators under Sec.  37.193(a)(1) that are 
required to, and small mixed-service operators under Sec.  37.191 that 
choose to, provide accessible OTRB service on 48 hours' advance notice.
    (1) When the operator receives a request for an accessible bus or 
equivalent service, the operator shall complete lines 1-9 of the Service 
Request Form in Appendix A to this subpart. The operator shall transmit 
a copy of the form to the passenger no later than the end of the next 
business day following the receipt of the request. The passenger shall 
be required to make only one request, which covers all legs of the 
requested trip (e.g., in the case of a round trip, both the outgoing and 
return legs of the trip; in the case of a multi-leg trip, all connecting 
legs).
    (2) The passenger shall be required to make only one request, which 
covers all legs of the requested trip (e.g., in the case of a round 
trip, both the outgoing and return legs of the trip; in the case of a 
multi-leg trip, all connecting legs). The operator shall transmit a copy 
of the form to the passenger in one of the following ways:
    (i) By first-class United States mail. The operator shall transmit 
the form no later than the end of the next business day following the 
request;
    (ii) By telephone or email. If the passenger can receive the 
confirmation by this method, then the operator shall provide a unique 
confirmation number to the passenger when the request is made and 
provide a paper copy of the form when the passenger arrives for the 
requested trip; or
    (iii) By facsimile transmission. If the passenger can receive the 
confirmation by this method, then the operator shall transmit the form 
within twenty-four hours of the request for transportation.
    (3) The operator shall retain its copy of the completed form for 
five years. The operator shall make these forms available to Department 
of Transportation or Department of Justice officials at their request.
    (4) Beginning October 29, 2001, for large operators, and October 28, 
2002, for small operators, and on the last Monday in October in each 
year thereafter, each operator shall submit a summary of its forms to 
the Department of Transportation. The summary shall state the number of 
requests for accessible bus service and the number of times these 
requests were met. It shall also include the name, address, telephone 
number, and contact person name for the operator.
    (b) This paragraph (b) applies to small fixed route operators who 
choose to provide equivalent service to passengers with disabilities 
under Sec.  37.183(b)(2).
    (1) The operator shall complete the Service Request Form in Appendix 
A to this subpart on every occasion on which a passenger with a 
disability needs equivalent service in order to be provided 
transportation.
    (2) The passenger shall be required to make only one request, which 
covers all legs of the requested trip (e.g., in the case of a round 
trip, both the outgoing and return legs of the trip; in the

[[Page 477]]

case of a multi-leg trip, all connecting legs). The operator shall 
transmit a copy of the form to the passenger, and whenever the 
equivalent service is not provided, in one of the following ways:
    (i) By first-class United States mail. The operator shall transmit 
the form no later than the end of the next business day following the 
request for equivalent service;
    (ii) By telephone or email. If the passenger can receive the 
confirmation by this method, then the operator shall provide a unique 
confirmation number to the passenger when the request for equivalent 
service is made and provide a paper copy of the form when the passenger 
arrives for the requested trip; or
    (iii) By facsimile transmission. If the passenger can receive the 
confirmation by this method, then the operator shall transmit the form 
within twenty-four hours of the request for equivalent service.
    (3) Beginning on October 28, 2002 and on the last Monday in October 
in each year therafter, each operator shall submit a summary of its 
forms to the Department of Transportation. The summary shall state the 
number of situations in which equivalent service was needed and the 
number of times such service was provided. It shall also include the 
name, address, telephone number, and contact person name for the 
operator.
    (c) This paragraph (c) applies to fixed-route operators.
    (1) On March 26, 2001, each fixed-route large operator shall submit 
to the Department a report on how many passengers with disabilities used 
the lift to board accessible buses for the period of October 1999 to 
October 2000. For fixed-route operators, the report shall reflect 
separately the data pertaining to 48-hour advance reservation service 
and other service.
    (2) Beginning on October 29, 2001 and on the last Monday in October 
in each year thereafter, each fixed-route operator shall submit to the 
Department, a report on how many passengers with disabilities used the 
lift to board accessible buses. For fixed-route operators, the report 
shall reflect separately the data pertaining to 48-hour advance 
reservation service and other service.
    (d) This paragraph (d) applies to each over the road bus operator.
    (1) On March 26, 2001, each operator shall submit to the Department, 
a summary report listing the number of new buses and used buses it has 
purchased or leased for the period of October 1998 through October 2000, 
and how many buses in each category are accessible. It shall also 
include the total number of buses in the operator's fleet and the name, 
address, telephone number, and contact person name for the operator.
    (2) Beginning on October 29, 2001 and on the last Monday in October 
in each year thereafter, each operator shall submit to the Department, a 
summary report listing the number of new buses and used buses it has 
purchased or leased during the preceding year, and how many buses in 
each category are accessible. It shall also include the total number of 
buses in the operator's fleet and the name, address, telephone number, 
and contact person name for the operator.
    (e) The information required to be submitted to the Department shall 
be sent to the following address: Federal Motor Carrier Safety 
Administration, Office of Data Analysis & Information System 1200 New 
Jersey Avenue, SE., Washington, D.C. 20590.

[66 FR 9053, Feb. 6, 2001, as amended at 69 FR 40796, July 7, 2004; 73 
FR 33329, June 12, 2008]



Sec.  37.215  Review of requirements.

    (a) Beginning October 28, 2005, the Department will review the 
requirements of Sec.  37.189 and their implementation. The Department 
will complete this review by October 30, 2006.
    (1) As part of this review, the Department will consider factors 
including, but not necessarily limited to, the following:
    (i) The percentage of accessible buses in the demand-responsive 
fleets of large and small demand-responsive operators.
    (ii) The success of small and large demand-responsive operators' 
service at meeting the requests of passengers with disabilities for 
accessible buses in a timely manner.
    (iii) The ridership of small and large operators' demand-responsive 
service by passengers with disabilities.

[[Page 478]]

    (iv) The volume of complaints by passengers with disabilities.
    (v) Cost and service impacts of implementation of the requirements 
of Sec.  37.189.
    (2) The Department will make one of the following decisions on the 
basis of the review:
    (i) Retain Sec.  37.189 without change; or
    (ii) Modify the requirements of Sec.  37.189 for large and/or small 
demand-responsive operators.
    (b) Beginning October 30, 2006, the Department will review the 
requirements of Sec. Sec.  37.183, 37.185, 37.187, 37.191 and 37.193(a) 
and their implementation. The Department will complete this review by 
October 29, 2007.
    (1) As part of this review, the Department will consider factors 
including, but not necessarily limited to, the following:
    (i) The percentage of accessible buses in the fixed-route fleets of 
large and small fixed-route operators.
    (ii) The success of small and large fixed-route operators' interim 
or equivalent service at meeting the requests of passengers with 
disabilities for accessible buses in a timely manner.
    (iii) The ridership of small and large operators' fixed-route 
service by passengers with disabilities.
    (iv) The volume of complaints by passengers with disabilities.
    (v) Cost and service impacts of implementation of the requirements 
of these sections.
    (2) The Department will make one of the following decisions on the 
basis of the review:
    (i) Retain Sec. Sec.  37.183, 37.185, 37.187, 37.191, 37.193(a) 
without change; or
    (ii) Modify the requirements of Sec. Sec.  37.183, 37.185, 37.187, 
37.191, 37.193(a) for large and/or small fixed-route operators.



      Sec. Appendix A to Subpart H of Part 37--Service Request Form

  Form for Advance Notice Requests and Provision of Equivalent Service

1. Operator's name______________________________________________________
2. Address______________________________________________________________
________________________________________________________________________
3. Phone number:________________________________________________________
4. Passenger's name:____________________________________________________
5. Address:_____________________________________________________________
________________________________________________________________________
6. Phone number:________________________________________________________
7. Scheduled date(s) and time(s) of trip(s):____________________________
________________________________________________________________________
8. Date and time of request:____________________________________________
9. Location(s) of need for accessible bus or equivalent service, as 
applicable:_____________________________________________________________
10. Was accessible bus or equivalent service, as applicable, provided 
for trip(s)? Yes ____ no ____
11. Was there a basis recognized by U.S. Department of transportation 
regulations for not providing an accessible bus or equivalent service, 
as applicable, for the trip(s)? Yes ____ no ____
If yes, explain_________________________________________________________
________________________________________________________________________

[66 FR 9054, Feb. 6, 2001]





 Sec. Appendix A to Part 37--Modifications to Standards for Accessible 
                        Transportation Facilities

    The Department of Transportation, in Sec.  37.9 of this part, adopts 
as its regulatory standards for accessible transportation facilities the 
revised Americans with Disabilities Act Guidelines (ADAGG) issued by the 
Access Board on July 23, 2004. The ADAGG is codified in the Code of 
Federal Regulations in Appendices B and D of 36 CFR part 1191. Note the 
ADAAG may also be found via a hyperlink on the Internet at the following 
address: http://www.access-board.gov/ada-aba/final.htm. Like all 
regulations, the ADAAG also can be found by using the electronic Code of 
Federal Regulations at http://www.gpoaccess.gov/ecfr. Because the ADAAG 
has been established as a Federal consensus standard by the Access 
Board, the Department is not republishing the regulations in their 
entirety, but is adopting them by cross-reference as permitted under 1 
CFR 21.21(c)(4). In a few instances, the Department has modified the 
language of the ADAAG as it applies to entities subject to 49 CFR part 
37. These entities must comply with the modified language in this 
Appendix rather than the language of Appendices B and D to 36 CFR part 
1191.

 206.3 Location--Modification to 206.3 of Appendix B to 36 CFR Part 1191

    Accessible routes shall coincide with, or be located in the same 
area as general circulation paths. Where circulation paths are interior, 
required accessible routes shall also be interior. Elements such as 
ramps, elevators, or other circulation devices, fare vending or other 
ticketing areas, and fare collection areas shall be placed to minimize 
the distance which wheelchair users and other persons who cannot 
negotiate steps may have to travel compared to the general public.

[[Page 479]]

      406.8--Modification to 406 of Appendix D to 36 CFR Part 1191

    A curb ramp shall have a detectable warning complying with 705. The 
detectable warning shall extend the full width of the curb ramp 
(exclusive of flared sides) and shall extend either the full depth of 
the curb ramp or 24 inches (610 mm) deep minimum measured from the back 
of the curb on the ramp surface.

810.2.2 Dimensions--Modification to 810.2.2 of Appendix D to 36 CFR Part 
                                  1191

    Bus boarding and alighting areas shall provide a clear length of 96 
inches (2440 mm), measured perpendicular to the curb or vehicle roadway 
edge, and a clear width of 60 inches (1525 mm), measured parallel to the 
vehicle roadway. Public entities shall ensure that the construction of 
bus boarding and alighting areas comply with 810.2.2, to the extent the 
construction specifications are within their control.

810.5.3 Platform and Vehicle Floor Coordination--Modification to 810.5.3 
                    of Appendix D to 36 CFR Part 1191

    Station platforms shall be positioned to coordinate with vehicles in 
accordance with the applicable requirements of 36 CFR part 1192. Low-
level platforms shall be 8 inches (205 mm) minimum above top of rail. In 
light rail, commuter rail, and intercity rail systems where it is not 
operationally or structurally feasible to meet the horizontal gap or 
vertical difference requirements of part 1192 or 49 CFR part 38, mini-
high platforms, car-borne or platform-mounted lifts, ramps or bridge 
plates or similarly manually deployed devices, meeting the requirements 
of 49 CFR part 38, shall suffice.
    EXCEPTION: Where vehicles are boarded from sidewalks or street-
level, low-level platforms shall be permitted to be less than 8 inches 
(205 mm).

[71 FR 63266, Oct. 30, 2006]



            Sec. Appendix B to Part 37--FTA Regional Offices

Region 1, Federal Transit Administration, Transportation Systems Center, 
Kendall Square, 55 Broadway, Suite 920, Cambridge, MA 02142
Region 2, Federal Transit Administration, One Bowling Green, Room 429, 
New York, NY 10004
Region 3, Federal Transit Administration, 1760 Market Street, Suite 500, 
Philadelphia, PA 19103
Region 4, Federal Transit Administration, 230 Peachtree NW., Suite 800, 
Atlanta, GA 30303
Region 5, Federal Transit Administration, 200 West Adams Street, Suite 
320, Chicago, IL 60606
Region 6, Federal Transit Administration, 819 Taylor Street, Room 8A36, 
Fort Worth, TX 76102
Region 7, Federal Transit Administration, 901 Locust Street, Suite 404, 
Kansas City, MO 64106
Region 8, Federal Transit Administration, 12300 West Dakota Avenue, 
Suite 310, Lakewood, CO 80228
Region 9, Federal Transit Administration, 201 Mission Street, Suite 
1650, San Francisco, CA 94105
Region 10, Federal Transit Administration, Jackson Federal Building, 915 
Second Avenue, Suite 3142, Seattle, WA 98174

[79 FR 21406, Apr. 16, 2014]



               Sec. Appendix C to Part 37--Certifications

                   Certification of Equivalent Service

    The (name of agency) certifies that its demand responsive service 
offered to individuals with disabilities, including individuals who use 
wheelchairs, is equivalent to the level and quality of service offered 
to individuals without disabilities. Such service, when viewed in its 
entirety, is provided in the most integrated setting feasible and is 
equivalent with respect to:
    (1) Response time;
    (2) Fares;
    (3) Geographic service area;
    (4) Hours and days of service;
    (5) Restrictions on trip purpose;
    (6) Availability of information and reservation capability; and
    (7) Constraints on capacity or service availability.
    In accordance with 49 CFR 37.77, public entities operating demand 
responsive systems for the general public which receive financial 
assistance under 49 U.S.C. 5311 must file this certification with the 
appropriate state program office before procuring any inaccessible 
vehicle. Such public entities not receiving FTA funds shall also file 
the certification with the appropriate state program office. Such public 
entities receiving FTA funds under any other section of the FT Act must 
file the certification with the appropriate FTA regional office. This 
certification is valid for no longer than one year from its date of 
filing.

________________________________________________________________________
(name of authorized official)

________________________________________________________________________
(title)

________________________________________________________________________
(signature)

[[Page 480]]

                  MPO Certification of Paratransit Plan

    The (name of Metropolitan Planning Organization) hereby certifies 
that it has reviewed the ADA paratransit plan prepared by (name of 
submitting entity (ies)) as required under 49 CFR part 37. 139(h) and 
finds it to be in conformance with the transportation plan developed 
under 49 CFR part 613 and 23 CFR part 450 (the FTA/FHWA joint planning 
regulation). This certification is valid for one year.

________________________________________________________________________
signature

________________________________________________________________________
name of authorized official

________________________________________________________________________
title

________________________________________________________________________
date

                   Existing Paratransit Service Survey

    This is to certify that (name of public entity (ies)) has conducted 
a survey of existing paratransit services as required by 49 CFR 37.137 
(a).

________________________________________________________________________
signature

________________________________________________________________________
name of authorized official

________________________________________________________________________
title

________________________________________________________________________
date

                     Included Service Certification

    This is to certify that service provided by other entities but 
included in the ADA paratransit plan submitted by (name of submitting 
entity (ies)) meets the requirements of 49 CFR part 37, subpart F 
providing that ADA eligible individuals have access to the service; the 
service is provided in the manner represented; and, that efforts will be 
made to coordinate the provision of paratransit service offered by other 
providers.

________________________________________________________________________
signature

________________________________________________________________________
name of authorized official

________________________________________________________________________
title

________________________________________________________________________
date

                       Joint Plan Certification I

    This is to certify that (name of entity covered by joint plan) is 
committed to providing ADA paratransit service as part of this 
coordinated plan and in conformance with the requirements of 49 CFR part 
37, subpart F.

________________________________________________________________________
signature

________________________________________________________________________
name of authorized official

________________________________________________________________________
title

________________________________________________________________________
date

                       Joint Plan Certification II

    This is to certify that (name of entity covered by joint plan) will, 
in accordance with 49 CFR 37.141, maintain current levels of paratransit 
service until the coordinated plan goes into effect.

________________________________________________________________________
signature

________________________________________________________________________
name of authorized official

________________________________________________________________________
title

________________________________________________________________________
date

            State Certification that Plans have been Received

    This is to certify that all ADA paratransit plans required under 49 
CFR 37.139 have been received by (state DOT)

________________________________________________________________________
signature


________________________________________________________________________
name of authorized official

________________________________________________________________________
title

________________________________________________________________________
date

[56 FR 45621, Sept. 6, 1991, as amended at 79 FR 21406, Apr. 16, 2014]



     Sec. Appendix D to Part 37--Construction and Interpretation of 
                      Provisions of 49 CFR Part 37

    This appendix explains the Department's construction and 
interpretation of provisions of 49 CFR part 37. It is intended to be 
used as definitive guidance concerning the meaning and implementation of 
these provisions. The appendix is organized on a section-by-section 
basis. Some sections of the rule are not discussed in the appendix, 
because they are self-explanatory or we do not currently have 
interpretive material to provide concerning them.
    The Department also provides guidance by other means, such as 
manuals and letters. The Department intends to update this Appendix 
periodically to include guidance, provided in response to inquiries 
about specific situations, that is of general relevance or interest.

[[Page 481]]

                      Amendments to 49 CFR Part 27

    Section 27.67(d) has been revised to reference the Access Board 
facility guidelines (found in appendix A to part 37) as well as the 
Uniform Federal Accessibility Standard (UFAS). This change was made to 
ensure consistency between requirements under section 504 and the ADA. 
Several caveats relating to the application of UFAS (e.g., that spaces 
not used by the public or likely to result in the employment of 
individuals with disabilities would not have to meet the standards) have 
been deleted. It is the Department's understanding that provisions of 
the Access Board standards and part 37 make them unnecessary.
    The Department is aware that there is a transition period between 
the publication of this rule and the effective date of many of its 
provisions (e.g., concerning facilities and paratransit services) during 
which section 504 remains the basic authority for accessibility 
modifications. In this interval, the Department expects recipients' 
compliance with section 504 to look forward to compliance with the ADA 
provisions. That is, if a recipient is making a decision about the shape 
of its paratransit service between the publication of this rule and 
January 26, 1992, the decision should be in the direction of service 
that will help to comply with post-January 1992 requirements. A 
recipient that severely curtailed its present paratransit service in 
October, and then asked for a three- or five-year phase-in of service 
under its paratransit plan, would not be acting consistent with this 
policy.
    Likewise, the Department would view with disfavor any attempt by a 
recipient to accelerate the beginning of the construction, installation 
or alteration of a facility to before January 26, 1992, to ``beat the 
clock'' and avoid the application of this rule's facility standards. The 
Department would be very reluctant to approve grants, contracts, 
exemption requests etc., that appear to have this effect. The purpose of 
the Department's administration of section 504 is to ensure compliance 
with the national policy stated in the ADA, not to permit avoidance of 
it.

                           Subpart A--General

                        Section 37.3 Definitions

    The definition of ``commuter authority'' includes a list of commuter 
rail operators drawn from a statutory reference in the ADA. It should be 
noted that this list is not exhaustive. Other commuter rail operators 
(e.g., in Chicago or San Francisco) would also be encompassed by this 
definition.
    The definition of ``commuter bus service'' is important because the 
ADA does not require complementary paratransit to be provided with 
respect to commuter bus service operated by public entities. The 
rationale that may be inferred for the statutory exemption for this kind 
of service concerns its typical characteristics (e.g., no attempt to 
comprehensively cover a service area, limited route structure, limited 
origins and destinations, interface with another mode of transportation, 
limited purposes of travel). These characteristics can be found in some 
transportation systems other than bus systems oriented toward work 
trips. For example, bus service that is used as a dedicated connecter to 
commuter or intercity rail service, certain airport shuttles, and 
university bus systems share many or all of these characteristics. As 
explained further in the discussion of subpart B, the Department has 
determined that it is appropriate to cover these services with the 
requirements applicable to commuter bus systems.
    The definitions of ``designated public transportation'' and 
``specified public transportation'' exclude transportation by aircraft. 
Persons interested in matters concerning access to air travel for 
individuals with disabilities should refer to 14 CFR part 382, the 
Department's regulation implementing the Air Carrier Access Act. Since 
the facility requirements of this part refer to facilities involved in 
the provision of designated or specified public transportation, airport 
facilities are not covered by this part. DOJ makes clear that public and 
private airport facilities are covered under its title II and title III 
regulations, respectively.
    The examples given in the definition of ``facility'' all relate to 
ground transportation. We would point out that, since transportation by 
passenger vessels is covered by this rule and by DOJ rules, such vessel-
related facilities as docks, wharfs, vessel terminals, etc. fall under 
this definition. It is intended that specific requirements for vessels 
and related facilities will be set forth in future rulemaking.
    The definitions of ``fixed route system'' and ``demand responsive 
system'' derive directly from the ADA's definitions of these terms. Some 
systems, like a typical city bus system or a dial-a-ride van system, fit 
clearly into one category or the other. Other systems may not so clearly 
fall into one of the categories. Nevertheless, because how a system is 
categorized has consequences for the requirements it must meet, entities 
must determine, on a case-by-case basis, into which category their 
systems fall.
    In making this determination, one of the key factors to be 
considered is whether the individual, in order to use the service, must 
request the service, typically by making a call.
    With fixed route service, no action by the individual is needed to 
initiate public transportation. If an individual is at a bus stop at the 
time the bus is scheduled to appear, then that individual will be able 
to access the transportation system. With demand-

[[Page 482]]

reponsive service, an additional step must be taken by the individual 
before he or she can ride the bus, i.e., the individual must make a 
telephone call.


(S. Rept. 101-116 at 54).

    Other factors, such as the presence or absence of published 
schedules, or the variation of vehicle intervals in anticipation of 
differences in usage, are less important in making the distinction 
between the two types of service. If a service is provided along a given 
route, and a vehicle will arrive at certain times regardless of whether 
a passenger actively requests the vehicle, the service in most cases 
should be regarded as fixed route rather than demand responsive.
    At the same time, the fact that there is an interaction between a 
passenger and transportation service does not necessarily make the 
service demand responsive. For many types of service (e.g., intercity 
bus, intercity rail) which are clearly fixed route, a passenger has to 
interact with an agent to buy a ticket. Some services (e.g., certain 
commuter bus or commuter rail operations) may use flag stops, in which a 
vehicle along the route does not stop unless a passenger flags the 
vehicle down. A traveler staying at a hotel usually makes a room 
reservation before hopping on the hotel shuttle. This kind of 
interaction does not make an otherwise fixed route service demand 
responsive.
    On the other hand, we would regard a system that permits user-
initiated deviations from routes or schedules as demand-responsive. For 
example, if a rural public transit system (e.g., a recipient of funds 
under 49 U.S.C. 5311) has a few fixed routes, the fixed route portion of 
its system would be subject to the requirements of subpart F for 
complementary paratransit service. If the entity changed its system so 
that it operated as a route-deviation system, we would regard it as a 
demand responsive system. Such a system would not be subject to 
complementary paratransit requirements.
    The definition of ``individual with a disability'' excludes someone 
who is currently engaging in the illegal use of drugs, when a covered 
entity is acting on the basis of such use. This concept is more 
important in employment and public accommodations contexts than it is in 
transportation, and is discussed at greater length in the DOJ and EEOC 
rules. Essentially, the definition says that, although drug addiction 
(i.e., the status or a diagnosis of being a drug abuser) is a 
disability, no one is regarded as being an individual with a disability 
on the basis of current illegal drug use.
    Moreover, even if an individual has a disability, a covered entity 
can take action against the individual if that individual is currently 
engaging in illegal drug use. For example, if a person with a mobility 
or vision impairment is ADA paratransit eligible, but is caught 
possessing or using cocaine or marijuana on a paratransit vehicle, the 
transit provider can deny the individual further eligibility. If the 
individual has successfully undergone rehabilitation or is no longer 
using drugs, as explained in the preamble to the DOJ rules, the transit 
provider could not continue to deny eligibility on the basis that the 
individual was a former drug user or still was diagnosed as a person 
with a substance abuse problem.
    We defined ``paratransit'' in order to note its specialized usage in 
the rule. Part 37 uses this term to refer to the complementary 
paratransit service comparable to public fixed route systems which must 
be provided. Typically, paratransit is provided in a demand responsive 
mode. Obviously, the rule refers to a wide variety of demand responsive 
services that are not ``paratransit,'' in this specialized sense.
    The ADA's definition of ``over-the-road bus'' may also be somewhat 
narrower than the common understanding of the term. The ADA definition 
focuses on a bus with an elevated passenger deck over a baggage 
compartment (i.e., a ``Greyhound-type'' bus). Other types of buses 
commonly referred to as ``over-the-road buses,'' which are sometimes 
used for commuter bus or other service, do not come within this 
definition. Only buses that do come within the definition are subject to 
the over-the-road bus exception to accessibility requirements in Title 
III of the ADA.
    For terminological clarity, we want to point out that two different 
words are used in ADA regulations to refer to devices on which 
individuals with hearing impairments communicate over telephone lines. 
DOJ uses the more traditional term ``telecommunications device for the 
deaf'' (TDD). The Access Board uses a newer term, ``text telephone.'' 
The DOT rule uses the terms interchangably.
    A ``used vehicle'' means a vehicle which has prior use; prior, that 
is, to its acquisition by its present owner or lessee. The definition is 
not relevant to existing vehicles in one's own fleet, which were 
obtained before the ADA vehicle accessibility requirements took effect.
    A ``vanpool'' is a voluntary commuter ridesharing arrangement using 
a van with a seating capacity of more than seven persons, including the 
driver. Carpools are not included in the definition. There are some 
systems using larger vehicles (e.g., buses) that operate, in effect, as 
vanpools. This definition encompasses such systems. Vanpools are used 
for daily work trips, between commuters' homes (or collection points 
near them) and work sites (or drop points near them). Drivers are 
themselves commuters who are either volunteers who receive no 
compensation for their efforts or persons

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who are reimbursed by other riders for the vehicle, operating, and 
driving costs.
    The definition of ``wheelchair'' includes a wide variety of mobility 
devices. This inclusiveness is consistent with the legislative history 
of the ADA (See S. Rept. 101-116 at 48). While some mobility devices may 
not look like many persons' traditional idea of a wheelchair, three- and 
more-wheeled devices, of many varied designs, are used by individuals 
with disabilities and must be transported. ``Wheelchair'' is defined in 
this rule as a mobility aid belonging to any class of three-or more-
wheeled devices, usable indoors, designed or modified for and used by 
individuals with mobility impairments, whether operated manually or 
powered. The ``three- or-more-wheeled'' language in the definition is 
intended to encompass wheelchairs that may have additional wheels (e.g., 
two extra guide wheels in addition to the more traditional four wheels).
    Persons with mobility disabilities may use devices other than 
wheelchairs to assist with locomotion. Canes, crutches, and walkers, for 
example, are often used by people whose mobility disabilities do not 
require use of a wheelchair. These devices must be accommodated on the 
same basis as wheelchairs. However, the Department does not interpret 
its rules to require transportation providers to accommodate devices 
that are not primarily designed or intended to assist persons with 
mobility disabilities (e.g., skateboards, bicycles, shopping carts), 
apart from general policies applicable to all passengers who might seek 
to bring such devices into a vehicle. Similarly, the Department does not 
interpret its rules to require transportation providers to permit an 
assistive device to be used in a way that departs from or exceeds the 
intended purpose of the device (e.g., to use a walker, even one with a 
seat intended to allow temporary rest intervals, as a wheelchair in 
which a passenger sits for the duration of a ride on a transit vehicle).
    The definition of wheelchair is not intended to include a class of 
devices known as ``other power-driven mobility devices'' (OPMDs). OPMDs 
are defined in Department of Justice ADA rules as ``any mobility device 
powered by batteries, fuel, or other engines--whether or not designed 
primarily for use by individuals with mobility disabilities--that is 
used by individuals with mobility disabilities for the purpose of 
locomotion, including golf carts * * * Segway[s][supreg], or any 
mobility device designed to operate in areas without defined pedestrian 
routes, but that is not a wheelchair * * * .'' DOT is placing guidance 
on its Web site concerning the use of Segways in transportation vehicles 
and facilities.
    The definition of ``direct threat'' is intended to be interpreted 
consistently with the parallel definition in Department of Justice 
regulations. That is, part 37 does not require a public entity to permit 
an individual to participate in or benefit from the services, programs, 
or activities of that public entity when that individual poses a direct 
threat to the health or safety of others. In determining whether an 
individual poses a direct threat to the health or safety of others, a 
public entity must make an individualized assessment, based on 
reasonable judgment that relies on current medical knowledge or on the 
best available objective evidence, to ascertain: the nature, duration, 
and severity of the risk; the probability that the potential injury will 
actually occur; and whether reasonable modifications of policies, 
practices, or procedures or the provision of auxiliary aids or services 
will mitigate the risk.

                     Section 37.5 Nondiscrimination

    This section states the general nondiscrimination obligation for 
entities providing transportation service. It should be noted that 
virtually all public and private entities covered by this regulation are 
also covered by DOJ regulations, which have more detailed statements of 
general nondiscrimination obligations.
    Under the ADA, an entity may not consign an individual with 
disabilities to a separate, ``segregated,'' service for such persons, if 
the individual can in fact use the service for the general public. This 
is true even if the individual takes longer, or has more difficulty, 
than other persons in using the service for the general public.
    One instance in which this principal applies concerns the use of 
designated priority seats (e.g., the so-called ``elderly and 
handicapped'' seats near the entrances to buses). A person with a 
disability (e.g., a visual impairment) may choose to take advantage of 
this accommodation or not. If not, it is contrary to rule for the entity 
to insist that the individual must sit in the priority seats.
    The prohibition on special charges applies to charges for service to 
individuals with disabilities that are higher than charges for the same 
or comparable services to other persons. For example, if a shuttle 
service charges $20.00 for a ride from a given location to the airport 
for most people, it could not charge $40.00 because the passenger had a 
disability or needed to use the shuttle service's lift-equipped van. 
Higher mileage charges for using an accessible vehicle would likewise be 
inconsistent with the rule. So would charging extra to carry a service 
animal accompanying an individual with a disability.
    If a taxi company charges $1.00 to stow luggage in the trunk, it 
cannot charge $2.00 to stow a folding wheelchair there. This provision 
does not mean, however, that a transportation provider cannot charge 
nondiscriminatory fees to passengers with disabilities. The taxi company 
in the above example can charge a passenger $1.00 to stow a

[[Page 484]]

wheelchair in the trunk; it is not required to waive the charge. This 
section does not prohibit the fares for paratransit service which 
transit providers are allowed to charge under Sec.  37.131(d).
    A requirement for an attendant is inconsistent with the general 
nondiscrimination principle that prohibits policies that unnecessarily 
impose requirements on individuals with disabilities that are not 
imposed on others. Consequently, such requirements are prohibited. An 
entity is not required to provide attendant services (e.g., assistance 
in toileting, feeding, dressing), etc.
    This provision must also be considered in light of the fact that an 
entity may refuse service to someone who engages in violent, seriously 
disruptive, or illegal conduct. If an entity may legitimately refuse 
service to someone, it may condition service to him on actions that 
would mitigate the problem. The entity could require an attendant as a 
condition of providing service it otherwise had the right to refuse.
    The rule also points out that involuntary conduct related to a 
disability that may offend or annoy other persons, but which does not 
pose a direct threat, is not a basis for refusal of transportation. For 
example, some persons with Tourette's syndrome may make involuntary 
profane exclamations. These may be very annoying or offensive to others, 
but would not be a ground for denial of service. Nor would it be 
consistent with the nondiscrimination requirements of this part to deny 
service based on fear or misinformation about the disability. For 
example, a transit provider could not deny service to a person with HIV 
disease because its personnel or other passengers are afraid of being 
near people with that condition.
    This section also prohibits denials of service or the placing on 
services of conditions inconsistent with this part on individuals with 
disabilities because of insurance company policies or requirements. If 
an insurance company told a transit provider that it would withdraw 
coverage, or raise rates, unless a transit provider refused to carry 
persons with disabilities, or unless the provider refused to carry 
three-wheeled scooters, this would not excuse the provider from 
providing the service as mandate by this part. This is not a regulatory 
requirement on insurance companies, but simply says that covered 
entities must comply with this part, even in the face of difficulties 
with their insurance companies.

             Section 37.7 Standards for Accessible Vehicles

    This section makes clear that, in order to meet accessibility 
requirements of this rule, vehicles must comply with Access Board 
standards, incorporated in DOT rules as 49 CFR part 38. Paragraph (b) of 
Sec.  37.7 spells out a procedure by which an entity (public or private) 
can deviate from provisions of part 38 with respect to vehicles. The 
entity would have to describe how its alternative mode of compliance 
would meet or exceed the level of access to or usability of the vehicle 
that compliance with part 38 would otherwise provide.
    It should be noted that equivalent facilitation does not provide a 
means to get a waiver of accessibility requirements. Rather, it is a way 
in which comparable (not a lesser degree of) accessibility can be 
provided by other means. The entity must consult with the public through 
some means of public participation in devising its alternative form of 
compliance, and the public input must be reflected in the submission to 
the Administrator (or the Federal Railroad Administrator in appropriate 
cases, such as a request concerning Amtrak). The Administrator will make 
a case-by-case decision about whether compliance with part 38 was 
achievable and, if not, whether the proffered alternative complies with 
the equivalent facilitation standard. DOT intends to consult with the 
Access Board in making these determinations.
    This equivalent facilitation provision can apply to buses or other 
motor vehicles as well as to rail cars and vehicles. An example of what 
could be an equivalent facilitation would concern rail cars which would 
leave too wide a horizontal gap between the door and the platform. If 
the operator used a combination of bridgeplates and personnel to bridge 
the gap, it might be regarded as an equivalent facilitation in 
appropriate circumstances.
    Section 37.7(c) clarifies which specifications must be complied with 
for over-the-road buses purchased by public entities (under subpart D of 
part 37) or private entities standing in the shoes of the public entity 
(as described in Sec.  37.23 of part 37). This section is necessary to 
make clear that over-the-road coaches must be accessible, when they are 
purchased by or in furtherance of a contract with a public entity. While 
the October 4, 1990 rule specified that over-the-road coaches must be 
accessible under these circumstances, we had not previously specified 
what constitutes accessibility.
    Accordingly, this paragraph specifies that an over-the-road bus must 
have a lift which meets the performance requirements of a regular bus 
lift (see Sec.  38.23) and must meet the interim accessibility features 
specified for all over-the-road buses in part 3, subpart G.

          Section 37.9 Standards for Transportation Facilities

    This section makes clear that, in order to meet accessibility 
requirements of this rule, vehicles must comply with appendix A to part 
37, which incorporates the Access Board facility guidelines.

[[Page 485]]

    Paragraph (b) of Sec.  37.9 provides that, under certain 
circumstances, existing accessibility modifications to key station 
facilities do not need to be modified further in order to conform to 
appendix A. This is true even if the standards under which the facility 
was modified differ from the Access Board guidelines or provide a lesser 
standard of accessibility.
    To qualify for this ``grandfathering,'' alterations must have been 
before January 26, 1992. As in other facility sections of the rule, an 
alteration is deemed to begin with the issuance of a notice to proceed 
or work order. The existing modifications must conform to ANSI A-117.1, 
Specifications for Making Buildings and Facilities Accessible to and 
Usable by the Physically Handicapped 1980, or the Uniform Federal 
Accessibility Standard. (UFAS).
    For example, if an entity used a Federal grant or loan or money to 
make changes to a building, it would already have had to comply with the 
Uniform Federal Accessibility Standards. Likewise, if a private entity, 
acting without any Federal money in the project, may have complied with 
the ANSI A117.1 standard. So long as the work was done in conformity 
with the standard that was in effect when the work was done, the 
alteration will be considered accessible.
    However, because one modification was made to a facility under one 
of these standards, the entity still has a responsibility to make other 
modifications needed to comply with applicable accessibility 
requirements. For example, if an entity has made some modifications to a 
key station according to one of these older standards, but the 
modifications do not make the key station entirely accessible as this 
rule requires, then additional modifications would have to be made 
according to the standards of appendix A. Suppose this entity has put an 
elevator into the station to make it accessible to individuals who use 
wheelchairs. If the elevator does not fully meet appendix A standards, 
but met the applicable ANSI standard when it was installed, it would not 
need further modifications now. But if it had not already done so, the 
entity would have to install a tactile strip along the platform edge in 
order to make the key station fully accessible as provided in this rule. 
The tactile strip would have to meet appendix A requirements.
    The rule specifically provides that ``grandfathering'' applies only 
to alterations of individual elements and spaces and only to the extent 
that provisions covering those elements or spaces are found in UFAS or 
AHSI A117.1. For example, alterations to the telephones in a key station 
may have been carried out in order to lower them to meet the 
requirements of UFAS, but telecommunications devices for the deaf (TDDs) 
were not installed. (Neither UFAS nor the ANSI standard include 
requirements concerning TDDs). However, because appendix A does contain 
TDD requirements, the key station must now be altered in accordance with 
the standards for TDDs. Similarly, earlier alteration of an entire 
station in accordance with UFAS or the ANSI standard would not relieve 
an entity from compliance with any applicable provision concerning the 
gap between the platform between the platform and the vehicle in a key 
station, because neither of these two standards addresses the interface 
between vehicle and platform.
    One further clarification concerning the implication of this 
provision deals with a bus loading island at which buses pull up on both 
sides of the island. It would be possible to read the bus pad 
specification to require the island to be a minimum of 84 inches wide 
(two widths of a bus stop pad), so that a lift could be deployed from 
buses on both sides of the island at the same time. A double-wide bus 
pad, however, is likely to exceed available space in most instances.
    Where there is space, of course, building a double-wide pad is one 
acceptable option under this rule. However, the combination of a pad of 
normal width and standard operational practices may also suffice. (Such 
practices could be offered as an equivalent facilitation.) For example, 
buses on either side of the island could stop at staggered locations 
(i.e., the bus on the left side could stop several feet ahead of the bus 
on the right side), so that even when buses were on both sides of the 
island at once, their lifts could be deployed without conflict. Where it 
is possible, building the pad a little longer than normal size could 
facilitate such an approach. In a situation where staggered stop areas 
are not feasible, an operational practice of having one bus wait until 
the other's lift cycle had been completed could do the job. Finally, the 
specification does not require that a pad be built at all. If there is 
nothing that can be done to permit lift deployment on both sides of an 
island, the buses can stop on the street, or some other location, so 
long as the lift is deployable.
    Like Sec.  37.7, this section contains a provision allowing an 
entity to request approval for providing accessibility through an 
equivalent facilitation.

                Section 37.11 Administrative Enforcement

    This section spells out administrative means of enforcing the 
requirements of the ADA. Recipients of Federal financial assistance from 
DOT (whether public or private entities) are subject to DOT's section 
504 enforcement procedures. The existing procedures, including 
administrative complaints to the DOT Office of Civil Rights, 
investigation, attempts at conciliation, and final resort to proceedings 
to cut off funds to a noncomplying recipient, will continue to be used.

[[Page 486]]

    In considering enforcement matters, the Department is guided by a 
policy that emphasizes compliance. The aim of enforcement action, as we 
see it, is to make sure that entities meet their obligations, not to 
impose sanctions for their own sake. The Department's enforcement 
priority is on failures to comply with basic requirements and ``pattern 
or practice'' kinds of problems, rather than on isolated operational 
errors.
    Under the DOJ rules implementing title II of the ADA (28 CFR part 
35), DOT is a ``designated agency'' for enforcement of complaints 
relating to transportation programs of public entities, even if they do 
not receive Federal financial assistance. When it receives such a 
complaint, the Department will investigate the complaint, attempt 
conciliation and, if conciliation is not possible, take action under 
section 504 and/or refer the matter to the DOJ for possible further 
action.
    Title III of the ADA does not give DOT any administrative 
enforcement authority with respect to private entities whose 
transportation services are subject to part 37. In its title III rule 
(28 CFR part 36), DOJ assumes enforcement responsibility for all title 
III matters. If the Department of Transportation receives complaints of 
violations of part 37 by private entities, it will refer the matters to 
the DOJ.
    It should be pointed out that the ADA includes other enforcement 
options. Individuals have a private right of action against entities who 
violate the ADA and its implementing regulations. The DOJ can take 
violators to court. These approaches are not mutually exclusive with the 
administrative enforcement mechanisms described in this section. An 
aggrieved individual can complain to DOT about an alleged transportation 
violation and go to court at the same time. Use of administrative 
enforcement procedures is not, under titles II and III, an 
administrative remedy that individuals must exhaust before taking legal 
action.
    We also would point out that the ADA does not assert any blanket 
preemptive authority over state or local nondiscrimination laws and 
enforcement mechanisms. While requirements of the ADA and this 
regulation would preempt conflicting state or local provisions (e.g., a 
building code or zoning ordinance that prevents compliance with appendix 
A or other facility accessibility requirements, a provision of local law 
that said bus drivers could not leave their seats to help secure 
wheelchair users), the ADA and this rule do not prohibit states and 
localities from legislating in areas relating to disability. For 
example, if a state law requires a higher degree of service than the 
ADA, that requirement could still be enforced. Also, states and 
localities may continue to enforce their own parallel requirements. For 
example, it would be a violation of this rule for a taxi driver to 
refuse to pick up a person based on that person's disability. Such a 
refusal may also be a violation of a county's taxi rules, subjecting the 
violator to a fine or suspension of operating privileges. Both ADA and 
local remedies could proceed in such a case.
    Labor-management agreements cannot stand in conflict with the 
requirements of the ADA and this rule. For example, if a labor-
management agreement provides that vehicle drivers are not required to 
provide assistance to persons with disabilities in a situation in which 
this rule requires such assistance, then the assistance must be provided 
notwithstanding the agreement. Labor and management do not have the 
authority to agree to violate requirements of Federal law.

  Section 37.13 Effective Date for Certain Vehicle Lift Specifications.

    This section contains an explicit statement of the effective date 
for vehicle lift platform specifications. The Department has decided to 
apply the new part 38 lift platform specifications to solicitations 
after January 25, 1992. As in the October 4, 1990, rule implementing the 
acquisition requirements; the date of a solicitation is deemed to be the 
closing date for the submission of bids or offers in a procurement.

                        Subpart B--Applicability

                  Section 37.21 Applicability--General

    This section emphasizes the broad applicability of part 37. Unlike 
section 504, the ADA and its implementing rules apply to entities 
whether or not they receive Federal financial assistance. They apply to 
private and public entities alike. For entities which do receive Federal 
funds, compliance with the ADA and part 37 is a condition of compliance 
with section 504 and 49 CFR part 27, DOT's section 504 rule.
    Virtually all entities covered by this rule also are covered by DOJ 
rules, either under 28 CFR part 36 as state and local program providers 
or under 28 CFR part 35 as operators of places of public accommodation. 
Both sets of rules apply; one does not override the other. The DOT rules 
apply only to the entity's transportation facilities, vehicles, or 
services; the DOJ rules may cover the entity's activities more broadly. 
For example, if a public entity operates a transit system and a zoo, 
DOT's coverage would stop at the transit system's edge, while DOJ's rule 
would cover the zoo as well.
    DOT and DOJ have coordinated their rules, and the rules have been 
drafted to be consistent with one another. Should, in the context of 
some future situation, there be an apparent inconsistency between the 
two rules, the DOT rule would control within the sphere of 
transportation services, facilities and vehicles.

[[Page 487]]

                  Section 37.23 Service Under Contract

    This section requires private entities to ``stand in the shoes'' of 
public entities with whom they contract to provide transportation 
services. It ensures that, while a public entity may contract out its 
service, it may not contract away its ADA responsibilities. The 
requirement applies primarily to vehicle acquisition requirements and to 
service provision requirements.
    If a public entity wishes to acquire vehicles for use on a commuter 
route, for example, it must acquire accessible vehicles. It may acquire 
accessible over-the-road buses, it may acquire accessible full-size 
transit buses, it may acquire accessible smaller buses, or it may 
acquire accessible vans. It does not matter what kind of vehicles it 
acquires, so long as they are accessible. On the other hand, if the 
public entity wants to use inaccessible buses in its existing fleet for 
the commuter service, it may do so. All replacement vehicles acquired in 
the future must, of course, be accessible.
    Under this provision, a private entity which contracts to provide 
this commuter service stands in the shoes of the public entity and is 
subject to precisely the same requirements (it is not required to do 
more than the public entity). If the private entity acquires vehicles 
used to provide the service, the vehicles must be accessible. If it 
cannot, or chooses not to, acquire an accessible vehicle of one type, it 
can acquire an accessible vehicle of another type. Like the public 
entity, it can provide the service with inaccessible vehicles in its 
existing fleet.
    The import of the provision is that it requires a private entity 
contracting to provide transportation service to a public entity to 
follow the rules applicable to the public entity. For the time being, a 
private entity operating in its own right can purchase a new over-the-
road bus inaccessible to individuals who use wheelchairs. When that 
private entity operates service under contract to the public entity, 
however, it is just as obligated as the public entity itself to purchase 
an accessible bus for use in that service, whether or not it is an over-
the-road bus.
    The ``stand in the shoes'' requirement applies not only to vehicles 
acquired by private entities explicitly under terms of an executed 
contract to provide service to a public entity, but also to vehicles 
acquired ``in contemplation of use'' for service under such a contract. 
This language is included to ensure good faith compliance with 
accessibility requirements for vehicles acquired before the execution of 
a contract. Whether a particular acquisition is in contemplation of use 
on a contract will be determined on a case-by-case basis. However, 
acquiring a vehicle a short time before a contract is executed and then 
using it for the contracted service is an indication that the vehicle 
was acquired in contemplation of use on the contract, as is acquiring a 
vehicle obstensibly for other service provided by the entity and then 
regularly rotating it into service under the contract.
    The ``stand in the shoes'' requirement is applicable only to the 
vehicles and service (public entity service requirements, like Sec.  
37.163, apply to a private entity in these situations) provided under 
contract to a public entity. Public entity requirements clearly do not 
apply to all phases of a private entity's operations, just because it 
has a contract with a public entity. For example, a private bus company, 
if purchasing buses for service under contract to a public entity, must 
purchase accessible buses. The same company, to the extent permitted by 
the private entity provisions of this part, may purchase inaccessible 
vehicles for its tour bus operations.
    The Department also notes that the ``stands in the shoes'' 
requirement may differ depending on the kind of service involved. The 
public entity's ``shoes'' are shaped differently, for example, depending 
on whether the public entity is providing fixed route or demand 
responsive service to the general public. In the case of demand 
responsive service, a public entity is not required to buy an accessible 
vehicle if its demand responsive system, when viewed in its entirety, 
provides service to individuals with disabilities equivalent to its 
service to other persons. A private contractor providing a portion of 
this paratransit service would not necessarily have to acquire an 
accessible vehicle if this equivalency test is being met by the system 
as a whole. Similarly, a public entity can, after going through a ``good 
faith efforts'' search, acquire inaccessible buses. A private entity 
under contract to the public can do the same. ``Stand in the shoes'' may 
also mean that, under some circumstances, a private contractor need not 
acquire accessible vehicles. If a private company contracts with a 
public school district to provide school bus service, it is covered, for 
that purpose, by the exemption for public school transportation.
    In addition, the requirement that a private entity play by the rules 
applicable to a public entity can apply in situations involving an 
``arrangement or other relationship'' with a public entity other than 
the traditional contract for service. For example, a private utility 
company that operates what is, in essence, a regular fixed route public 
transportation system for a city, and which receives funding under 49 
U.S.C. 5307 or 49 U.S.C. 5309 via an agreement with a state or local 
government agency, would fall under the provisions of this section. The 
provider would have to comply with the vehicle acquisition, paratransit, 
and service requirements that would apply to the public entity through

[[Page 488]]

which it receives the FTA funds, if that public entity operated the 
system itself. The Department would not, however, construe this section 
to apply to situations in which the degree of FTA funding and state and 
local agency involvement is considerably less, or in which the system of 
transportation involved is not a de facto surrogate for a traditional 
public entity fixed route transit system serving a city (e.g., a private 
non-profit social service agency which receives funds under 49 U.S.C. 
5310 to purchase a vehicle).
    This section also requires that a public entity not diminish the 
percentage of accessible vehicles in its fleet through contracting. For 
example, suppose a public entity has 100 buses in its fleet, of which 20 
are accessible, meaning that 20 percent of its fleet is accessible. The 
entity decides to add a fixed route, for which a contractor is engaged. 
The contractor is supplying ten of its existing inaccessible buses for 
the fixed route. To maintain the 20 percent accessibility ratio, there 
would have to be 22 accessible buses out of the 110 buses now in 
operation in carrying out the public entity's service. The public entity 
could maintain its 20 percent level of accessibility through any one or 
more of a number of means, such as having the contractor to provide two 
accessible buses, retrofitting two if its own existing buses, or 
accelerating replacement of two of its own inaccessible buses with 
accessible buses.
    This rule applies the ``stand in the shoes'' principle to 
transactions wholly among private entities as well. For example, suppose 
a taxi company (a private entity primarily engaged in the business of 
transporting people) contracts with a hotel to provide airport shuttle 
van service. With respect to that service, the taxi company would be 
subject to the requirements for private entities not primarily in the 
business of transporting people, since it would be ``standing in the 
shoes'' of the hotel for that purpose.

             Section 37.25 University Transportation Systems

    Private university-operated transportation systems are subject to 
the requirements of this rule for private entities not primarily engaged 
in the business of transporting people. With one important exception, 
public university-operated transportation systems are subject to the 
requirements of the rule for public entities. The nature of the systems 
involved--demand-responsive or fixed route--determines the precise 
requirements involved.
    For public university fixed route systems, public entity 
requirements apply. In the case of fixed route systems, the requirements 
for commuter bus service would govern. This has the effect of requiring 
the acquisition of accessible vehicles and compliance with most other 
provisions of the rule, but does not require the provision of 
complementary paratransit or submitting a paratransit plan. As a result, 
private and public universities will have very similar obligations under 
the rule.

  Section 37.27 Transportation for Elementary and Secondary Education 
                                 Systems

    This section restates the statutory exemption from public entity 
requirements given to public school transportation. This extension also 
applies to transportation of pre-school children to Head Start or 
special education programs which receive Federal assistance. It also 
applies to arrangements permitting pre-school children of school bus 
drivers to ride a school bus or allowing teenage mothers to be 
transported to day care facilities at a school or along a school bus 
route so that their mothers may continue to attend school (See H. Rept. 
101-485, pt. 1 at 27). The situation for private schools is more 
complex. According to the provision, a private elementary or secondary 
school's transportation system is exempt from coverage under this rule 
if all three of the following conditions are met: (1) The school 
receives Federal financial assistance; (2) the school is subject to 
section 504; and (3) the school's transportation system provides 
transportation services to individuals with disabilities, including 
wheelchair users, equivalent to those provided to individuals without 
disabilities. The test of equivalency is the same as that for other 
private entities, and is described under Sec.  37.105. If the school 
does not meet all these criteria, then it is subject to the requirements 
of Part 37 for private entities not primarily engaged in the business of 
transporting people.
    The Department notes that, given the constitutional law on church-
state separation, it is likely that church-affiliated private schools do 
not receive Federal financial assistance. To the extent that these 
schools' transportation systems are operated by religious entities or 
entities controlled by religious organizations, they are not subject to 
the ADA at all, so this section does not apply to them.

             Section 37.29 Private Providers of Taxi Service

    This section first recites that providers of taxi service are 
private entities primarily engaged in the business of transporting 
people which provide demand responsive service. For purposes of this 
section, other transportation services that involve calling for a car 
and a driver to take one places (e.g., limousine services, of the kind 
that provide luxury cars and chauffeurs for senior proms and analogous 
adult events) are regarded as taxi services.
    Under the ADA, no private entity is required to purchase an 
accessible automobile. If a taxi company purchases a larger vehicle,

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like a van, it is subject to the same rules as any other private entity 
primarily engaged in the business of transporting people which operates 
a demand responsive service. That is, unless it is already providing 
equivalent service, any van it acquires must be accessible. Equivalent 
service is measured according to the criteria of Sec.  37.105. Taxi 
companies are not required to acquire vehicles other than automobiles to 
add accessible vehicles to their fleets.
    Taxi companies are subject to nondiscrimination obligations. These 
obligations mean, first, that a taxi service may not deny a ride to an 
individual with a disability who is capable of using the taxi vehicles. 
It would be discrimination to pass up a passenger because he or she was 
blind or used a wheelchair, if the wheelchair was one that could be 
stowed in the cab and the passenger could transfer to a vehicle seat. 
Nor could a taxi company insist that a wheelchair user wait for a lift-
equipped van if the person could use an automobile.
    It would be discrimination for a driver to refuse to assist with 
stowing a wheelchair in the trunk (since taxi drivers routinely assist 
passengers with stowing luggage). It would be discrimination to charge a 
higher fee or fare for carrying a person with a disability than for 
carrying a non-disabled passenger, or a higher fee for stowing a 
wheelchair than for stowing a suitcase. (Charging the same fee for 
stowing a wheelchair as for stowing a suitcase would be proper, 
however.) The fact that it may take somewhat more time and effort to 
serve a person with a disability than another passenger does not justify 
discriminatory conduct with respect to passengers with disabilities.
    State or local governments may run user-side subsidy arrangements 
for the general public (e.g., taxi voucher systems for senior citizens 
or low-income persons). Under the DOJ title II rule, these programs 
would have to meet ``program accessibility'' requirements, which 
probably would require that accessible transportation be made available 
to senior citizens or low-income persons with disabilities. This would 
not directly require private taxi providers who accept the vouchers to 
purchase accessible vehicles beyond the requirements of this rule, 
however.

                         Section 37.31 Vanpools

    This provision applies to public vanpool systems the requirements 
for public entities operating demand responsive systems for the general 
public. A public vanpool system is one operated by a public entity, or 
in which a public entity owns or purchases or leases the vehicles. 
Lesser degrees of public involvement with an otherwise private 
ridesharing arrangement (e.g., provision of parking spaces, HOV lanes, 
coordination or clearinghouse services) do not convert a private into a 
public system.
    The requirement for a public vanpool system is that it purchase or 
lease an accessible vehicle unless it can demonstrate that it provides 
equivalent service to individuals with disabilities, including 
individuals who use wheelchairs, as it provides to individuals without 
disabilities. For a public vanpool system, the equivalency requirement 
would be met if an accessible vehicle is made available to and used by a 
vanpool when an individual with a disability needs such a vehicle to 
participate. Public vanpool systems may meet this requirement through 
obtaining a percentage of accessible vehicles that is reasonable in 
light of demand for them by participants, but this is not required, so 
long as the entity can respond promptly to requests for participation in 
a vanpool with the provision of an accessible van when needed.
    There is no requirement for private vanpools, defined as a voluntary 
arrangement in which the driver is compensated only for expenses.

              Section 37.33 Airport Transportation Systems

    Fixed route transportation systems operated by public airports are 
regarded by this section as fixed route commuter bus systems. As such, 
shuttles among terminals and parking lots, connector systems among the 
airport and a limited number of other local destinations must acquire 
accessible buses, but are not subject to complementary paratransit 
requirements. (If a public airport operates a demand responsive system 
for the general public, it would be subject to the rules for demand 
responsive systems for the general public.)
    It should be noted that this section applies only to transportation 
services that are operated by public airports themselves (or by private 
contractors who stand in their shoes). When a regular urban mass transit 
system serves the airport, the airport is simply one portion of its 
service area, treated for purposes of this rule like the rest of its 
service area.
    Virtually all airports are served by taxi companies, who are subject 
to Sec.  37.29 at airports as elsewhere. In addition, many airports are 
served by jitney or shuttle systems. Typically, these systems operate in 
a route-deviation or similar variable mode in which there are passenger-
initiated decisions concerning destinations. We view such systems as 
demand responsive transportation operated by private entities primarily 
engaged in the business of transporting people.
    Since many of these operators are small businesses, it may be 
difficult for them to meet equivalency requirements on their own without 
eventually having all or nearly all accessible vehicles, which could 
pose economic problems. One suggested solution to this problem is for 
the operators serving a given airport to form a pool or consortium 
arrangement, in which a number of shared

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accessible vehicles would meet the transportations of individuals with 
disabilities. As in other forms of transportation, such an arrangement 
would have to provide service in a nondiscriminatory way (e.g., in an 
integrated setting, no higher fares for accessible service).

    Section 37.35 Supplemental Service for Other Transportation Modes

    This section applies to a number of situations in which an operator 
of another transportation mode uses bus or other service to connect its 
service with limited other points.
    One instance is when an intercity railroad route is set up such that 
the train stops outside the major urban center which is the actual 
destination for many passengers. Examples mentioned to us include bus 
service run by Amtrak from a stop in Columbus, Wisconsin, to downtown 
Madison, or from San Jose to San Francisco. Such service is fixed route, 
from the train station to a few points in the metropolitan area, with a 
schedule keyed to the train schedule. It would be regarded as commuter 
bus service, meaning that accessible vehicles would have to be acquired 
but complementary paratransit was not required.
    Another instance is one in which a commuter rail operator uses fixed 
route bus service as a dedicated connection to, or extension of, its 
rail service. The service may go to park and ride lots or other 
destinations beyond the vicinity of the rail line. Again, this service 
shares the characteristics of commuter bus service that might be used 
even if the rail line were not present, and does not attempt to be a 
comprehensive mass transit bus service for the area.
    Of course, there may be instances in which a rail operator uses 
demand responsive instead of fixed route service for a purpose of this 
kind. In that case, the demand responsive system requirements of the 
rule would apply.
    Private entities (i.e., those operating places of public 
accommodation) may operate similar systems, as when a cruise ship 
operator provides a shuttle or connector between an airport and the 
dock. This service is covered by the rules governing private entities 
not primarily engaged in the business of transporting people. Fixed 
route or demand responsive rules apply, depending on the characteristics 
of the system involved.
    One situation not explicitly covered in this section concerns ad hoc 
transportation arranged, for instance, by a rail operator when the train 
does not wind up at its intended destination. For example, an Amtrak 
train bound for Philadelphia may be halted at Wilmington by a track 
blockage between the two cities. Usually, the carrier responds by 
providing bus service to the scheduled destination or to the next point 
where rail service can resume.
    The service that the carrier provides in this situation is 
essentially a continuation by other means of its primary service. We 
view the obligation of the rail operator as being to ensure that all 
passengers, including individuals with disabilities, are provided 
service to the destination in a nondiscriminatory manner. This includes, 
for instance, providing service in the most integrated setting 
appropriate to the needs of the individual and service that gets a 
passenger with a disability to the destination as soon as other 
passengers.

                    Section 37.37 Other Applications

    The ADA specifically defines ``public entity.'' Anything else is a 
``private entity.'' The statute does not include in this definition a 
private entity that receives a subsidy or franchise from a state or 
local government or is regulated by a public entity. Only through the 
definition of ``operates'' (see discussion of Sec.  37.23) do private 
entities' relationships to public entities subject private entities to 
the requirements for public entities. Consequently, in deciding which 
provisions of the rule to apply to an entity in other than situations 
covered by Sec.  37.23, the nature of the entity--public or private--is 
determinative.
    Transportation service provided by public accommodations is viewed 
as being provided by private entities not primarily engaged in the 
business of transporting people. Either the provisions of this part 
applicable to demand responsive or fixed route systems apply, depending 
on the nature of a specific system at a specific location. The 
distinction between fixed route and demand responsive systems is 
discussed in connection with the definitions section above. It is the 
responsibility of each private entity, in the first instance, to assess 
the nature of each transportation system on a case-by-case basis and 
determine the applicable rules.
    On the other hand, conveyances used for recreational purposes, such 
as amusement park rides, ski lifts, or historic rail cars or trolleys 
operated in museum settings, are not viewed as transportation under this 
rule at all. Other conveyances may fit into this category as well.
    The criterion for determining what requirements apply is whether the 
conveyances are primarily an aspect of the recreational experience 
itself or a means of getting from Point A to Point B. At a theme park, 
for instance, a large roller coaster (though a ``train'' of cars on a 
track) is a public accommodation not subject to this rule; the tram that 
transports the paying customers around the park, with a stop at the 
roller coaster, is a transportation system subject to the ``private, not 
primarily'' provisions of this part.
    Employer-provided transportation for employees is not covered by 
this part, but by

[[Page 491]]

EEOC rules under title I of the ADA. (Public entities are also subject 
to DOJ's title II rules with respect to employment.) This exclusion from 
part 37 applies to transportation services provided by an employer 
(whether access to motor pool vehicles, parking shuttles, employer-
sponsored van pools) that is made available solely to its own employees. 
If an employer provides service to its own employees and other persons, 
such as workers of other employers or customers, it would be subject to 
the requirements of this part from private entities not primarily 
engaged in the business of transporting people or public entities, as 
applicable.
    The rule looks to the private entity actually providing the 
transportation service in question in determining whether the ``private, 
primarily'' or ``private, not primarily'' rules apply. For example, 
Conglomerate, Inc., owns a variety of agribusiness, petrochemical, 
weapons system production, and fast food corporations. One of its many 
subsidiaries, Green Tours, Inc., provides charter bus service for people 
who want to view national parks, old-growth forests, and other 
environmentally significant places. It is probably impossible to say in 
what business Conglomerate, Inc. is primarily engaged, but it clearly is 
not transporting people. Green Tours, Inc., on the other hand, is 
clearly primarily engaged in the business of transporting people, and 
the rule treats it as such.
    On the other hand, when operating a transportation service off to 
the side of to the main business of a public accommodation (e.g., a 
hotel shuttle), the entity as a whole would be considered. Even if some 
dedicated employees are used to provide the service, shuttles and other 
systems provided as a means of getting to, from, or around a public 
accommodation remain solidly in the ``private, not primarily'' category.

                  Subpart C--Transportation Facilities

   Section 37.41 Construction of Transportation Facilities by Public 
                                Entities

    Section 37.41 contains the general requirement that all new 
facilities constructed after January 25, 1992, be accessible to and 
usable by individuals with disabilities. This provision tracks the 
statute closely, and is analogous to a provision in the DOJ regulations 
for private entities. Section 226 of the ADA provides little discretion 
in this requirement.
    The requirement is keyed to construction which ``begins'' after 
January 25, 1992. The regulation defines ``begin'' to mean when a notice 
to proceed order has been issued. This term has a standard meaning in 
the construction industry, as an instruction to the contractor to 
proceed with the work.
    Questions have been raised concerning which standards apply before 
January 26, 1992. There are Federal requirements that apply to all 
recipients of federal money, depending on the circumstances.
    First, if an entity is a Federal recipient and uses Federal dollars 
to construct the facility, regulations implementing section 504 of the 
Rehabilitation Act of 1973 (29 U.S.C. 794), require the recipient to 
comply with the Uniform Federal Accessibility Standards.
    Second, since the Civil Rights Restoration Act of 1987 (Pub. L. 100-
259), an operation of a recipient of federal funds would also have to 
comply with section 504, even though the activity was not paid for with 
Federal funds. Thus, the Uniform Federal Accessibility Standards would 
apply to this construction as well.
    As mentioned above, the Department intends, in the period before 
January 26, 1991, to view compliance with section 504 in light of 
compliance with ADA requirements (this point applies to alterations as 
well as new construction). Consequently, in reviewing requests for 
grants, contract approvals, exemptions, etc., (whether with respect to 
ongoing projects or new, experimental, or one-time efforts), the 
Department will, as a policy matter, seek to ensure compliance with ADA 
standards.

                              Section 37.42

    Service in an integrated setting to passengers at intercity, 
commuter, and high-speed rail station platforms constructed or altered 
after February 1, 2012.
    Individuals with disabilities, including individuals who use 
wheelchairs, must have access to all accessible cars in each train using 
a new or altered station. This performance standard will apply at 
stations where construction or alteration of platforms begins 135 days 
or more after the rule is published. The performance standard does not 
require rail operators to retrofit existing station platforms or cars. 
The requirement is prospective, and section 37.42 does not require 
retrofit of existing stations (though compliance with existing 
disability nondiscrimination requirements not being altered is still 
required). To meet this performance standard on lines or systems where 
track passing through stations and adjacent to platforms is shared with 
existing freight rail operations, passenger railroads that do not choose 
to provide level-entry boarding may, after obtaining FRA and/or FTA 
approval, use car-borne lifts, ramps or other devices, mini-high 
platforms (making multiple stops where necessary to accommodate 
passengers wishing to use different cars of the train), or movable 
station-based lifts.
    On commuter, intercity, or high-speed rail lines or systems in which 
track passing through stations and adjacent to platforms is not shared 
with existing freight rail operations, the performance standard must be 
met by providing level-entry boarding to all

[[Page 492]]

accessible cars in each train that serves new or altered stations on the 
line or system. For example, if a new commuter or high-speed rail line 
or system is being built, and the track adjacent to platforms is not 
shared with freight traffic (e.g., it is a passenger rail-only system, 
or a passing or gauntlet track exists for freight traffic), then the 
stations would have to provide level-entry boarding. Other options would 
not be permitted.
    If a platform being constructed or altered is not adjacent to track 
used for freight, but the track and platform are used by more than one 
passenger railroad (e.g., Amtrak and a commuter railroad), the 
possibility of the platform serving cars with different door heights 
exists. In this situation, the level-entry boarding requirement 
continues to exist. Generally, the platform should be level with respect 
to the system that has the lower boarding height. This is because it is 
not good safety practice to make passengers step down (or be lifted down 
or use ramps to get down) to board a train. For example, if Amtrak 
operates through a station with cars that are 15 inches ATR, and a 
commuter railroad uses the same platform with cars that are 25 inches 
ATR, the platform would be level with respect to the Amtrak cars. The 
commuter railroad would have to provide another means of access, such as 
lifts. In all such cases where mixed rail equipment will be used, the 
rule requires that both FRA and FTA be consulted by the railroads 
involved. As in other cases where level-entry boarding is not used, the 
railroad must obtain FTA and/or FRA approval for the means the railroad 
wants to use to meet the performance standard.
    The details of the ``track passing through stations and adjacent to 
platforms is shared with existing freight rail operations'' language are 
important. There may be stations that serve lines that are shared, at 
some points, by passenger and freight traffic, but where the freight 
traffic does not go through the particular station (e.g., because 
freight traffic bypasses the station), level-entry boarding is required. 
There could also be situations on which multiple tracks pass through a 
station, and freight traffic uses only a center track, not a track which 
is adjacent to a platform. In such cases, the new or altered platform 
would have to provide level-entry boarding. It is important to note that 
this language refers to ``existing'' freight rail traffic, as opposed to 
the possibility that freight traffic might use the track in question at 
some future time. Likewise, if freight trains have not used a track 
passing through a station in a significant period of time (e.g., the 
past 10 years), the Department does not view this as constituting 
``existing freight rail traffic.''
    Passenger rail operators must provide access only to accessible, 
available cars that people with disabilities are trying to access at a 
given station. If a train has eight accessible cars, and wheelchair 
users want to enter only cars 2 and 7 (see discussion below of passenger 
notification), then railroad personnel need to deploy lifts or bridge 
plates only at cars 2 and 7, not at the other cars. Similarly, the rule 
requires operators to provide access only to available cars at a 
station. If a train has eight accessible cars, but the platform only 
serves cars 1 through 6, then railroad personnel need to deploy lifts or 
bridge plates only at cars that people with disabilities are trying to 
access and that are available to all passengers. We would also point out 
that wheelchair positions on rail passenger cars are intended to serve 
wheelchair users, and railroad operators should take steps to ensure 
that these spaces are available for wheelchair users and not for other 
uses. For example, it would be contrary to the rule for a wheelchair 
user to be told that he or she could not use car 7 because the 
wheelchair spaces were filled with other passengers' luggage from a 
previous stop.
    In order to ensure that access was provided, passengers would have 
to notify railroad personnel. For example, if a passenger at a station 
wanted to use a station-based lift to access car 6, the passenger would 
request the use of car 6 and railroad personnel would deploy the lift at 
that car. Likewise, at a station using a mini-high platform, a passenger 
on this platform would inform train personnel that he or she wanted to 
enter car 5, whereupon the train would pull forward so that car 5 was 
opposite the mini-high platform. We contemplate that these requests 
would be made when the train arrives, and railroads could not insist on 
advance notice (e.g., the railroad could not require a passenger to call 
a certain time in advance to make a ``reservation'' to use a lift to get 
on a particular car). As part of its submission to FTA or FRA, the 
railroad would describe the procedure it would use to receive and 
fulfill these requests.
    Where a railroad operator wishes to provide access to its rail cars 
through a means other than level-entry boarding, it is essential that it 
provide an integrated, safe, timely, reliable, and effective means of 
access for people with disabilities. A railroad is not required to 
choose what might be regarded as a more desirable or convenient method 
over a less desirable or convenient method, or to choose a more costly 
option over a less costly option. What a railroad must do is to ensure 
that whatever option it chooses works. However, to assist railroads in 
choosing the most suitable option, the rule requires that a railroad not 
using level-entry boarding, if it chooses an approach other than the use 
of car-borne lifts, must perform a comparison of the costs (capital, 
operating, and life-cycle costs) of car-borne lifts versus the

[[Page 493]]

means preferred by the railroad operator, as well as a comparison of the 
relative ability of each of the two alternatives (i.e., car-borne lifts 
and the railroad's preferred approach) to provide service to people with 
disabilities in an integrated, safe, reliable, and timely manner. The 
railroad must submit this comparison to FTA and FRA at the same time as 
it submits its plan to FRA and/or FTA, as described below, although the 
comparison is not part of the basis on which the agencies would 
determine whether the plan meets the performance standard. The 
Department believes that, in creating this plan, railroads should 
consult with interested individuals and groups and should make the plan 
readily available to the public, including individuals with 
disabilities.
    To ensure that the railroad's chosen option works, the railroad must 
provide to FRA or FTA (or both), as applicable, a plan explaining how 
its preferred method will provide the required integrated, safe, 
reliable, timely and effective means of access for people with 
disabilities. The plan would have to explain how boarding equipment 
(e.g., bridge plates, lifts, ramps, or other appropriate devices) and/or 
platforms will be deployed, maintained, and operated, as well as how 
personnel will be trained and deployed to ensure that service to 
individuals with disabilities was provided in an integrated, safe, 
timely, effective, and reliable manner.
    FTA and/or FRA will evaluate the proposed plan with respect to 
whether it will achieve the objectives of the performance standard and 
may approve, disapprove, or modify it. It should be emphasized that the 
purpose of FTA/FRA review of this plan is to make sure that whatever 
approach a railroad chooses will in fact work; that is, it will really 
result in an integrated, safe, reliable, timely and effective means of 
access for people with disabilities. If a plan, in the view of FRA or 
FTA, fails to meet this test, then FTA or FRA can reject it or require 
the railroad to modify it to meet the objectives of this provision.
    In considering railroads' plans, the agencies will consider factors 
including, but not limited to, how the proposal maximizes integration of 
and accessibility to individuals with disabilities, any obstacles to the 
use of a method that could provide better service to individuals with 
disabilities, the safety and reliability of the approach and related 
technology proposed to be used, the suitability of the means proposed to 
the station and line and/or system on which it would be used, and the 
adequacy of equipment and maintenance and staff training and deployment.
    For example, some commenters have expressed significant concerns 
about the use of station-based lifts, noting instances in which such 
lifts have not been maintained in a safe and reliable working order. A 
railroad proposing to use station-based lifts would have to describe to 
FTA or FRA how it would ensure that the lifts remained in safe and 
reliable operating condition (such as by cycling the lift daily or other 
regular maintenance) and how it would ensure that personnel to operate 
the lift were available in a timely manner to assist passengers in 
boarding a train. This demonstration must clearly state how the railroad 
expects that their operations will provide safe and dignified service to 
the users of such lifts.
    In existing stations where it is possible to provide access to every 
car without station or rail car retrofits, rail providers that receive 
DOT financial assistance should be mindful of the requirement of 49 CFR 
27.7(b)(2), which requires that service be provided ``in the most 
integrated setting that is reasonably achievable.'' For example, if a 
set of rail cars has car-borne lifts that enable the railroad to comply 
with section 37.42 at new or altered station platforms, it is likely 
that deployment of this lift at existing stations will be reasonably 
achievable. Similarly, it is likely that, in a system using mini-high 
platforms, making multiple stops at existing stations would be 
reasonable achievable. The use of a station-based lift at an existing 
station to serve more than one car of a train may well also be 
reasonably achievable (e.g., with movement of the lift or multiple 
stops, as needed). Such actions would serve the objective of providing 
service in an integrated setting. In addition, in situations where a 
railroad and the Department have negotiated access to every accessible 
car in an existing system (e.g., with car-borne lifts and mini-high 
platforms as a back-up), the Department expects the railroads to 
continue to provide access to every accessible car for people with 
disabilities.
    Section 37.42(e) provides a safety requirement concerning the 
setback of structures and obstacles (e.g., mini-high platforms, 
elevators, escalators, and stairwells) from the platform edge. This 
provision is based on long-standing FRA recommendations and the 
expertise of the Department's staff. The Department believes that it is 
inadvisable, with the exception of boarding and alighting a train, to 
ever have a wheelchair operate over the two-foot wide tactile strips 
that are parallel to the edge of the platform. This leaves a four-foot 
distance for a person in a typical wheelchair to maneuver safely past 
stair wells, elevator shafts, etc. It also is important because a 
wheelchair user exiting a train at a door where there is not a six-foot 
clearance would likely have difficulty exiting and making the turn out 
of the rail car door. The requirement would also avoid channeling 
pedestrians through a relatively narrow space where, in crowded platform 
conditions, there would be an increased chance of someone falling off 
the edge of the platform. Since the rule concerns only new and altered 
platforms, the Department does

[[Page 494]]

not believe the cost or difficulty of designing the platforms to 
eliminate this hazard will be significant.
    Section 37.42(f) provides the maximum gap allowable for a platform 
to be considered ``level.'' However, this maximum is not intended to be 
the norm for new or altered platforms. The Department expects 
transportation providers to minimize platform gaps to the greatest 
extent possible by building stations on tangent track and using gap-
filling technologies, such as moveable platform edges, threshold plates, 
platform end boards, and flexible rubber fingers on the ends of 
platforms. The Department encourages the use of Gap Management Plans and 
consultation with FRA and/or FTA for guidance on gap safety issues.
    Even where level-entry boarding is provided, it is likely that, in 
many instances, bridge plates would have to be used to enable passengers 
with disabilities to enter cars, because of the horizontal gaps 
involved. Section 38.95(c)(5), referred to in the regulatory text, 
permits various ramp slopes for bridge plates, depending on the vertical 
gap in given situation. In order to maximize the opportunity of 
passengers to board independently, the Department urges railroads to use 
the least steep ramp slope feasible at a given platform.

Section 37.43 Alteration of Transportation Facilities by Public Entities

    This section sets out the accessibility requirements that apply when 
a public entity undertakes an alteration of an existing facility. In 
general, the section requires that any alteration, to the maximum extent 
feasible, results in the altered area being accessible to and usable by 
individuals with disabilities, including persons who use wheelchairs. 
The provisions follow closely those adopted by the DOJ, in its 
regulations implementing title III of the ADA.
    The section requires specific activities whenever an alteration of 
an existing facility is undertaken.
    First, if the alteration is made to a primary function area, (or 
access to an area containing a primary function), the entity shall make 
the alteration in such a way as to ensure that the path of travel to the 
altered area and the restrooms, telephones and drinking fountains 
servicing the altered area are readily accessible to and usable by 
individuals with disabilities, including individuals who use 
wheelchairs.
    Second, alterations to drinking fountains, telephones, and restrooms 
do not have to be completed if the cost and scope of making them 
accessible is disproportionate.
    Third, the requirement goes into effect for alterations begun after 
January 25, 1992.
    Fourth, the term ``maximum extent feasible'' means that all changes 
that are possible must be made. The requirement to make changes to the 
maximum extent feasible derives from clear legislative history. The 
Senate Report states--
    The phrase ``to the maximum extent feasible'' has been included to 
allow for the occasional case in which the nature of an existing 
facility is such as to make it virtually impossible to renovate the 
building in a manner that results in its being entirely accessible to 
and usable by individuals with disabilities. In all such cases, however, 
the alteration should provide the maximum amount of physical 
accessibility feasible.
    Thus, for example the term ``to the maximum extent feasible'' should 
be construed as not requiring entities to make building alterations that 
have little likelihood of being accomplished without removing or 
altering a load-bearing structural member unless the load-bearing 
structural member is otherwise being removed or altered as part of the 
alteration. (S. Rept. 101-116, at 68).
    Fifth, primary function means a major activity for which the 
facility is intended. Primary function areas include waiting areas, 
ticket purchase and collection areas, train or bus platforms, baggage 
checking and return areas, and employment areas (with some exceptions 
stated in the rule, for areas used by service personnel that are very 
difficult to access).
    Sixth, ``path of travel'' means a continuous, unobstructed way of 
pedestrian passage by means of which the altered area may be approached, 
entered, and exited, and which connects the altered area with an 
exterior approach and includes restrooms, telephones, and drinking 
fountains serving the altered area. If changes to the path of travel are 
disproportionate, then only those changes which are not disproportionate 
are to be completed.
    Seven, the final rule specifies that costs exceeding 20 percent 
would be disproportionate. This is consistent with the DOJ. In 
determining costs, the Department intends costs to be based on changes 
to the passenger service area that is scheduled for alteration.
    Finally, the Department has defined the term ``begin'', in the 
context of begin an alteration that is subject to the alteration 
provision to mean when a notice to proceed or work order is issued. Two 
terms are used (instead of only notice to proceed in the context of new 
construction) because many alterations may be carried out by the entity 
itself, in which case the only triggering event would be a work order or 
similar authorization to begin.
    In looking at facility concepts like ``disproportionality'' and ``to 
the maximum extent feasible,'' the Department will consider any expenses 
related to accessibility for passengers. It is not relevant to consider 
non-passenger related improvements (e.g., installing a new track bed) or 
to permit ``gold-plating'' (attributing to accessibility

[[Page 495]]

costs the expense of non-related improvements, such as charging to 
accessibility costs the price of a whole new door, when only adding a 
new handle to the old door was needed for accessibility).

       Section 37.47 Key Stations in Light and Rapid Rail Systems

  Section 37.49 Designation of Responsible Person(s) for Intercity and 
                         Commuter Rail Stations

    This section sets forth a mechanism for determining who bears the 
legal and financial responsibility for accessibility modifications to a 
commuter and/or intercity rail station. The final provision of the 
section is the most important. It authorizes all concerned parties to 
come to their own agreement concerning the allocation of responsibility. 
Such an agreement can allocate responsibility in any way acceptable to 
the parties. The Department strongly encourages parties to come to such 
an agreement.
    In the absence of such an agreement, a statutory/regulatory scheme 
allocates responsibility. In the first, and simplest, situation posed by 
the statute, a single public entity owns more than 50 percent of the 
station. In this case, the public entity is the responsible person and 
nobody else is required to bear any of the responsibility.
    In the second situation, a private entity owns more than 50 percent 
of the station. The private entity need not bear any of the 
responsibility for making the station accessible. A public entity owner 
of the station, who does not operate passenger railroad service through 
the station, is not required to bear any of the responsibility for 
making the station accessible. The total responsibility is divided 
between passenger railroads operating service through the station, on 
the basis of respective passenger boardings. If there is only one 
railroad operating service through the station, it bears the total 
responsibility.
    The Department believes that reference to passenger boardings is the 
most equitable way of dividing responsibility among railroads, since the 
number of people drawn to the station by each is likely to reflect 
``cost causation'' quite closely. The Department notes, however, that, 
as passenger boarding percentages change over time, the portion of 
responsibility assigned to each party also may change. Station 
modifications may involve long-term capital investment and planning, 
while passenger boarding percentages are more volatile. Some railroads 
may stop serving a station, while others may begin service, during the 
period of time before modifications to the station are complete. To help 
accommodate such situations, the rule refers to passenger boardings 
``over the entire period during which the station is made accessible.''
    This language is intended to emphasize that as circumstances change, 
the parties involved have the responsibility to adjust their 
arrangements for cost sharing. For example, suppose Railroad A has 30 
percent of the passenger boardings in year 1, but by year 10 has 60 
percent of the boardings. It would not be fair for Railroad A to pay 
only 30 percent of the costs of station modifications occurring in later 
years. Ultimately, the total cost burden for modifying the station over 
(for example) 20 years would be allocated on the share of the total 
number or boardings attributable to each railroad over the whole 20 year 
period, in order to avoid such unfairness.
    The third, and most complicated, situation is one in which no party 
owns 50 percent of the station. For example, consider the following 
hypothetical situation:

------------------------------------------------------------------------
                                                 Ownership    Boardings
                     Party                       percentage   percentage
------------------------------------------------------------------------
Private freight RR............................           40            0
City..........................................           30            0
Amtrak........................................            0           25
Commuter A....................................           30           50
Commuter B....................................            0           25
------------------------------------------------------------------------

The private freight railroad drops out of the calculation of who is 
responsible. All of the responsibility would be allocated among four 
public entities: the city (a public entity who does not operate railroad 
service), Amtrak, and the two commuter railroads. Half the 
responsibility would go to public entity owners of the station (whether 
or not they are railroads who run passenger service through the 
station). The other half of the responsibility would go to railroads who 
run passenger service through the station (whether or not they are 
station owners).
    On the ownership side of the equation, the city and Commuter A each 
own half of that portion of the station that is not owned by the private 
freight railroad. Therefore, the two parties divide up the ownership 
half of the responsibility equally. Based on their ownership interest, 
each of these two parties bears 25 percent of the responsibility for the 
entire station. Note that, should ownership percentages or owners change 
over the period during which the station is to be made accessible, these 
percentages may change. It is ownership percentage over this entire 
period that ultimately determines the percentage of responsibility.
    On the passenger rail operations side of the equation, 50 percent of 
passenger boardings are attributable to Commuter A and 25 percent each 
to Commuter B and Amtrak. Therefore, half of this portion of the 
responsibility belongs to Commuter A, while a quarter share each goes to 
the other railroads. This means that, based on passenger boardings, 25 
percent of the responsibility

[[Page 496]]

goes to Commuter A, 12.5 percent to Commuter B, and 12.5 percent to 
Amtrak. Again, it is the proportion of passenger boardings over the 
entire length of the period during which the station is made accessible 
that ultimately determines the percentage of responsibility.
    In this hypothetical, Commuter A is responsible for a total of 50 
percent of the responsibility for the station. Commuter A is responsible 
for 25 percent of the responsibility because of its role as a station 
owner and another 25 percent because of its operation of passenger rail 
service through the station.
    The Department recognizes that there will be situations in which 
application of this scheme will be difficult (e.g., involving problems 
with multiple owners of a station whose ownership percentages may be 
difficult to ascertain). The Department again emphasizes that agreement 
among the parties is the best way of resolving these problems, but we 
are willing to work with the parties to ensure a solution consistent 
with this rule.

           Section 37.51 Key Stations in Commuter Rail Systems

    These sections require that key stations in light, rapid, and 
commuter rail systems be made accessible as soon as practicable, but no 
later than July 26, 1993. Being made accessible, for this purpose, means 
complying with the applicable provisions of appendix A to this part. 
``As soon as practicable'' means that, if modification can be made 
before July 26, 1993, they must be. A rail operator that failed to make 
a station accessible by July 1993 would be in noncompliance with the ADA 
and this rule, except in a case where an extension of time had been 
granted.
    What is a key station? A key station is one designated as such by 
the commuter authority or light/rapid rail operator, through the 
planning process and public participation process set forth in this 
section. The five criteria listed in the regulation are intended to 
guide the selection process but, while the entity must take these 
criteria into account (and this consideration must be reflected in the 
planning process and documents), they are not mandatory selection 
standards. That is, it is not required that every station that meets one 
of the criteria be designated as a key station. Since the criteria are 
not mandatory selection standards, the understanding of their terms is 
also a matter appropriately left to the planning process. A tight, 
legalistic definition is not necessary in the context of factors 
intended for consideration. For instance, what constitutes a major 
activity center or how close a station needs to be to another station to 
not be designated as key depend largely on local factors that it would 
not be reasonable to specify in this rule.
    Given the wide discretion permitted to rail operators in identifying 
key stations, there would be no objection to identifying as a key 
station a new (presumably accessible) station now under construction. 
Doing so would involve consideration of the key station criteria and 
would be subject to the planning/public participation process.
    If an extension to a rail system (e.g., a commuter system) is made, 
such that the system comes to include existing inaccessible stations 
that have not previously been part of the system, the Department 
construes the ADA to require application of key station accessibility in 
such a situation. The same would be true for a new start commuter rail 
system that began operations using existing stations. Key station 
planning, designation of key stations, and with being consistent with 
the ADA would be required. The Department would work with the commuter 
authority involved on a case-by-case basis to determine applicable time 
limits for accessibility, consistent with the time frames of the ADA.
    The entity must develop a compliance plan, subject to the public 
participation and planning process set forth in paragraph (d) of each of 
these sections. Note that this plan must be completed by July 26, 1992, 
not January 26, 1992, as in the case of paratransit plans. The key 
station plans must be submitted to FTA at that time. (The statute does 
not require FTA approval of the plans, however.).
    A rail operator may request an extension of the July 1993 completion 
deadline for accessibility modifications to one or more key stations. 
The extension for light and rapid rail stations can be up to July 2020, 
though two thirds of the key stations (per the legislative history of 
the statute, selected in a way to maximize accessibility to the whole 
system) must be accessible by July 2010.
    Commuter rail stations can be extended up to July 2010.
    Requests for extension of time must be submitted by July 26, 1992. 
FTA will review the requests on a station-by-station basis according to 
the statutory criterion, which is whether making the station accessible 
requires extraordinarily expensive alterations. An extraordinarily 
expensive alteration is raising the entire platform, installing an 
elevator, or making another alteration of similar cost and magnitude. If 
another means of making a station accessible (e.g., installation of a 
mini-high platform in a station where it is not necessary to install an 
elevator or to provide access to the platform for wheelchair users), 
then an extension can be granted only if the rail operator shows that 
the cost and magnitude of the alteration is similar to that of an 
elevator installation or platform raising.
    The rule does not include a specific deadline for FTA consideration 
of an extension

[[Page 497]]

request. However, since we are aware that, in the absence of an 
extension request, accessibility must be completed by July 1993, we will 
endeavor to complete review of plans as soon as possible, to give as 
much lead time as possible to local planning and implementation efforts.
    Once an extension is granted, the extension applies to all 
accessibility modifications in the station. However, the rail operator 
should not delay non-extraordinarily expensive modifications to the 
station. The key station plan and any extension request should include a 
schedule for phasing in non-extraordinarily expensive modifications to 
the station. For example, even if a key station is not going to be 
accessible to wheelchair users for 15 years, pending the installation of 
an elevator, the rail operator can improve its accessibility to persons 
with visual impairments by installing tactile strips.
    An extension cannot be granted except for a particular station which 
needs an extraordinarily expensive modification. An extension cannot be 
granted non-extraordinarily expensive changes to Station B because the 
extraordinarily expensive changes to Station A will absorb many 
resources. Non-extraordinarily expensive changes, however costly 
considered collectively for a system, are not, under the statute, 
grounds for granting an extension to one or more stations or the whole 
system. Only particular stations where an extraordinarily expensive 
modification must be made qualify for extensions.
    The FTA Administrator can approve, modify, or disapprove any request 
for an extension. For example, it is not a forgone conclusion that a 
situation for which an extension is granted will have the maximum 
possible extension granted. If it appears that the rail operator can 
make some stations accessible sooner, FTA can grant an extension for a 
shorter period (e.g., 2005 for a particular station rather than 2010).

          Section 37.53 Exception for New York and Philadelphia

    Consistent with the legislative history of the ADA, this section 
formally recognizes the selection of key stations in two identified 
litigation settlement agreements in New York and Philadelphia as in 
compliance with the ADA. Consequently, the entities involved can limit 
their key station planning process to issues concerning the timing of 
key station accessibility. The section references also Sec.  37.9, which 
provides that key station accessibility alterations which have already 
been made, or which are begun before January 26, 1992, and which conform 
to specified prior standards, do not have to be re-modified. On the 
other hand, alterations begun after January 25, 1992 (including 
forthcoming key station modifications under the New York and 
Philadelphia agreements), must meet the requirements of appendix A to 
this part.
    This is an exception only for the two specified agreements. There 
are no situations in which other cities can take advantage of this 
provision. Nor are the provisions of the two agreements normative for 
other cities. Other cities must do their own planning, with involvement 
from local citizens, and cannot rely on agreements unique to New York 
and Philadelphia to determine the appropriate number of percentage of 
key stations or other matters.

                   Section 37.57 Required Cooperation

    This section implements Sec.  242(e)(2)(C) of the ADA, which treats 
as discrimination a failure, by an owner or person in control of an 
intercity rail station, to provide reasonable cooperation to the 
responsible persons' efforts to comply with accessibility requirements. 
For example, the imposition by the owner of an unreasonable insurance 
bond from the responsible person as a condition of making accessibility 
modifications would violate this requirement. See H. Rept. 101-485 at 
53.
    The statute also provides that failure of the owner or person in 
control to cooperate does not create a defense to a discrimination suit 
against the responsible person, but the responsible person would have a 
third party action against the uncooperative owner or person in control. 
The rule does not restate this portion of the statute in the regulation, 
since it would be implemented by the courts if such an action is 
brought. Since cooperation is also a regulatory requirement, however, 
the Department could entertain a section 504 complaint against a 
recipient of Federal funds who failed to cooperate.
    The House Energy and Commerce Committee provided as an example of an 
action under this provision a situation in which a failure to cooperate 
leads to a construction delay, which in turn leads to a lawsuit by an 
individual with disabilities against the responsible person for missing 
an accessibility deadline. The responsible person could not use the lack 
of cooperation as a defense in the lawsuit, but the uncooperative party 
could be made to indemnify the responsible person for damages awarded 
the plaintiff. Also, a responsible person could obtain an injunction to 
force the recalcitrant owner or controller of the station to permit 
accessibility work to proceed. (Id.)
    This provision does not appear to be intended to permit a 
responsible person to seek contribution for a portion of the cost of 
accessibility work from a party involved with the station whom the 
statute and Sec.  37.49 do not identify as a responsible person. It 
simply provides a remedy for a situation in which someone impedes the 
responsible person's efforts to comply with accessibility obligations.

[[Page 498]]

 Section 37.59 Differences in Accessibility Completion Date Requirements

    Portions of the same station may have different accessibility 
completion date requirements, both as the result of different statutory 
time frames for different kinds of stations and individual decisions 
made on requests for extension. The principle at work in responding to 
such situations is that if part of a station may be made accessible 
after another part, the ``late'' part of the work should not get in the 
way of people's use of modifications resulting from the ``early'' part.
    For example, the commuter part of a station may have to be made 
accessible by July 1993 (e.g., there is no need to install an elevator, 
and platform accessibility can be achieved by use of a relatively 
inexpensive mini-high platform). The Amtrak portion of the same station, 
by statute, is required to be accessible as soon as practicable, but no 
later than July 2010. If there is a common entrance to the station, that 
commuter rail passengers and Amtrak passengers both use, or a common 
ticket counter, it would have to be accessible by July 1993. If there 
were a waiting room used by Amtrak passengers but not commuter 
passengers (who typically stand and wait on the platform at this 
station), it would not have to be accessible by July 1993, but if the 
path from the common entrance to the commuter platform went through the 
waiting room, the path would have to be an accessible path by July 1993.

Section 37.61 Public Transportation Programs and Activities in Existing 
                               Facilities

    This section implements section 228(a) of the ADA and establishes 
the general requirement for entities to operate their transportation 
facilities in a manner that, when viewed in its entirety, is accessible 
to and usable by individuals with disabilities. The section clearly 
excludes from this requirement access by persons in wheelchairs, unless 
these changes would be necessitated by the alterations or key station 
provisions.
    This provision is intended to cover activities and programs of an 
entity that do not rise to the level of alteration. Even if an entity is 
not making alterations to a facility, it has a responsibility to conduct 
its program in an accessible manner. Examples of possible activities 
include user friendly farecards, schedules, of edge detection on rail 
platforms, adequate lighting, telecommunication display devices (TDDs) 
or text telephones, and other accommodations for use by persons with 
speech and hearing impairments, signage for people with visual 
impairments, continuous pathways for persons with visual and ambulatory 
impairments, and public address systems and clocks.
    The Department did not prescribe one list of things that would be 
appropriate for all stations. For example, we believe that tactile 
strips are a valuable addition to platforms which have drop-offs. We 
also believe that most larger systems, to the extent they publish 
schedules, should make those schedules readily available in alternative 
formats. We encourage entities to find this another area which benefits 
from its commitment to far-reaching public participation efforts.

    Subpart D--Acquisition of Accessible Vehicles by Public Entities

   Section 37.71 Purchase or Lease of New Non-Rail Vehicles by Public 
                 Entities Operating Fixed Route Systems

    This section generally sets out the basic acquisition requirements 
for a public entity purchasing a new vehicle. The section requires any 
public entity that purchases or leases a new vehicle to acquire an 
accessible vehicle.
    In addition, the waiver request must include copies of 
advertisements in trade publications and inquiries to trade associations 
seeking lifts for the buses. The public entity also must include a full 
justification for the assertion that a delay in the bus procurement 
sufficient to obtain a lift-equipped bus would significantly impair 
transportation services in the community. There is no length of time 
that would be a per se delay constituting a ``significant impairment''. 
It will be more difficult to obtain a waiver if a relatively short 
rather than relatively lengthy delay is involved. A showing of 
timetables, absent a showing of significant impairment of actual transit 
services, would not form a basis for granting a waiver.
    Any waiver granted by the Department under this provision will be a 
conditional waiver. The conditions are intended to ensure that the 
waiver provision does not create a loophole in the accessible vehicle 
acquisition requirement that Congress intended to impose. The ADA 
requires a waiver to be limited in duration and the rule requires a 
termination date to be included. The date will be established on the 
basis of the information the Department receives concerning the 
availability of lifts in the waiver request and elsewhere. In addition, 
so that a waiver does not become open-ended, it will apply only to a 
particular procurement. If a transit agency wants a waiver for a 
subsequent delivery of buses in the procurement, or another procurement 
entirely, it will have to make a separate waiver request.
    For example, if a particular order of buses is delivered over a 
period of time, each delivery would be the potential subject of a waiver 
request. First, the entity would request a waiver for the first shipment 
of buses. If all of the conditions are met, the waiver would be granted, 
with a date specified to coincide

[[Page 499]]

with the due date of the lifts. When the lifts become available those 
buses would have to be retrofitted with the lifts. A subsequent delivery 
of buses--on the same order--would have to receive its own waiver, 
subject to the same conditions and specifications of the first waiver.
    The purpose of the waiver, as the Department construes it, is to 
address a situation in which (because of a sudden increase in the number 
of lift-equipped buses requested) lift manufacturers are unable to 
produce enough lifts to meet the demand in a timely fashion.

  Section 37.73 Purchase or Lease of Used Non-Rail Vehicles by Public 
                 Entities Operating a Fixed Route System

    The basic rule is that an acquisition of a used vehicle would have 
to be for an accessible vehicle.
    There is an exception, however, for situations in which the transit 
provider makes a good faith effort to obtain accessible used vehicles 
but does not succeed in finding them. The ADA requires transit agencies 
to purchase accessible used vehicles, providing a ``demonstrated good 
faith efforts'' exception to the requirement. The reports of the Senate 
Committee on Labor and Human Resources and the House Committee on 
Education and Labor offered the following guidance on what ``good faith 
efforts'' involve:
    The phrase ``demonstrated good faith efforts'' is intended to 
require a nationwide search and not a search limited to a particular 
region. For instance, it would not be enough for a transit operator to 
contact only the manufacturer where the transit authority usually does 
business to see if there are accessible used buses. It involves the 
transit authority advertising in a trade magazine, i.e., Passenger 
Transport, or contacting the transit trade association, American Public 
Transit Association (APTA), to determine whether accessible used 
vehicles are available. It is the Committee's expectation that as the 
number of buses with lifts increases, the burden on the transit 
authority to demonstrate its inability to purchase accessible vehicles 
despite good faith efforts will become more and more difficult to 
satisfy. S. Rept. 101-116 at 49; H. Rept. 101-485 at 90.
    Consistent with this guidance, this section requires that good faith 
efforts include specifying accessible vehicles in bid solicitations. The 
section also requires that the entity retain for two years documentation 
of that effort, and that the information be available to FTA and the 
public.
    It does not meet the good faith efforts requirement to purchase 
inaccessible, rather than accessible, used buses, just because the 
former are less expensive, particularly if the difference is a 
difference attributable to the presence of a lift. There may be 
situations in which good faith efforts involve buying fewer accessible 
buses in preference to more inaccessible buses.
    The public participation requirements involved in the development of 
the paratransit plans for all fixed route operators requires an ongoing 
relationship, including extensive outreach, to the community likely to 
be using its accessible service. We believe that it will be difficult to 
comply with the public participation requirements and not involve the 
affected community in the decisions concerning the purchase or lease of 
used accessible vehicles.
    There is an exception to these requirements for donated vehicles. 
Not all ``zero dollar'' transfers are donations, however. The 
legislative history to this provision provides insight.
    It is not the Committee's intent to make the vehicle accessibility 
provisions of this title applicable to vehicles donated to a public 
entity. The Committee understands that it is not usual to donate 
vehicles to a public entity. However, there could be instances where 
someone could conceivably donate a bus to a public transit operator in a 
will. In such a case, the transit operators should not be prevented from 
accepting a gift.
    The Committee does not intend that this limited exemption for 
donated vehicles be used to circumvent the intent of the ADA. For 
example, a local transit authority could not arrange to be the recipient 
of donated inaccessible buses. This would be a violation of the ADA. S. 
Rpt. 101-116, at 46; H. Rpt. 101-486, at 87.
    Entities interested in accepting donated vehicles must submit a 
request to FTA to verify that the transaction is a donation.
    There is one situation, in which a vehicle has prior use is not 
treated as a used vehicle. If a vehicle has been remanufactured, and it 
is within the period of the extension of its useful life, it is not 
viewed as a used vehicle (see H. Rept. 101-485, Pt 1 at 27). During this 
period, such a vehicle may be acquired by another entity without going 
through the good faith efforts process. This is because, at the time of 
its remanufacture, the bus would have been made as accessible if 
feasible. When the vehicle has completed its extended useful life (e.g., 
the beginning of year six when its useful life has extended five years), 
it becomes subject to used bus requirements.

 Section 37.75 Remanufacture of Non-Rail Vehicles and Purchase or Lease 
 of Remanufactured Non-rail Vehicles by Public Entities Operating Fixed 
                              Route Systems

    This section tracks the statute closely, and contains the following 
provisions. First, it requires any public entity operating a fixed route 
system to purchase an accessible vehicle if the acquisition occurs after 
August 25, 1990, if the vehicle is remanufactured after August 25, 1990, 
or the entity contracts or undertakes the remanufacture of a vehicle

[[Page 500]]

after August 25, 1990. The ADA legislative history makes it clear that 
remanufacture is to include changes to the structure of the vehicle 
which extend the useful life of the vehicle for five years. It clearly 
is not intended to capture things such as engine overhauls and the like.
    The term remanufacture, as used in the ADA context, is different 
from the use of the term in previously issued FTA guidance. The term has 
a specific meaning under the ADA: there must be structural work done to 
the vehicle and the work must extend the vehicle's useful life by five 
years.
    The ADA imposes no requirements on what FTA traditionally considers 
bus rehabilitation. Such work involves rebuilding a bus to original 
specifications and focuses on mechanical systems and interiors. Often 
this work includes replacing components. It is less extensive than 
remanufacture.
    The statute, and the rule, includes an exception for the 
remanufacture of historical vehicles. This exception applies to the 
remanufacture of or purchase of a remanufactured vehicle that (1) is of 
historic character; (2) operates solely on a segment of a fixed route 
system which is on the National Register of Historic Places; and (3) 
making the vehicle accessible would significantly alter the historic 
character of the vehicle. The exception only extends to the 
remanufacture that would alter the historic character of the vehicle. 
All modifications that can be made without altering the historic 
character (such as slip resistant flooring) must be done.

   Section 37.77 Purchase or Lease of New Non-Rail Vehicles by Public 
  Entities Operating a Demand Responsive System for the General Public

    Section 224 of the ADA requires that a public entity operating a 
demand responsive system purchase or lease accessible new vehicles, for 
which a solicitation is made after August 25, 1990, unless the system, 
when viewed in its entirety, provides a level of service to individuals 
with disabilities, including individuals who use wheelchairs, equivalent 
to the level of service provided to individuals without disabilities. 
This section is the same as the October 4, 1990 final rule which 
promulgated the immediately effective acquisition requirements of the 
ADA.
    The Department has been asked to clarify what ``accessible when 
viewed in its entirety'' means in the context of a demand responsive 
system being allowed to purchase an inaccessible vehicle. First, it is 
important to note that this exception applies only to demand responsive 
systems (and not fixed route systems). The term ``equivalent service'' 
was discussed during the passage of the ADA. Material from the 
legislative history indicates that ``when viewed in its entirety/
equivalent service'' means that ``when all aspects of a transportation 
system are analyzed, equal opportunities for each individual with a 
disability to use the transportation system must exist. (H. Rept. 101-
184, Pt. 2, at 95; S. Rept. 101-116 at 54). For example, both reports 
said that ``the time delay between a phone call to access the demand 
responsive system and pick up the individual is not greater because the 
individual needs a lift or ramp or other accommodation to access the 
vehicle.'' (Id.)
    Consistent with this, the Department has specified certain service 
criteria that are to be used when determining if the service is 
equivalent. As in previous rulemakings on this provision, the standards 
(which include service area, response time, fares, hours and days of 
service, trip purpose restrictions, information and reservations 
capability, and other capacity constraints) are not absolute standards. 
They do not say, for example, that a person with a disability must be 
picked up in a specified number of hours. The requirement is that there 
must be equivalent service for all passengers, whether or not they have 
a disability. If the system provides service to persons without 
disabilities within four hours of a call for service, then passengers 
with disabilities must be afforded the same service.
    The Department has been asked specifically where an entity should 
send its ``equivalent level of service'' certifications. We provide the 
following: Equivalent level of service certifications should be 
submitted to the state program office if you are a public entity 
receiving FTA funds through the state. All other entities should submit 
their equivalent level of service certifications to the FTA regional 
office (listed in appendix B of this part). Certifications must be 
submitted before the acquisition of the vehicles.
    Paragraph (e) of this section authorizes a waiver for the 
unavailability of lifts. Since demand responsive systems need not 
purchase accessible vehicles if they can certify equivalent service, the 
Department has been asked what this provision is doing in this section.
    Paragraph (e) applies in the case in which an entity operates a 
demand responsive system, which is not equivalent, and the entity cannot 
find accessible vehicles to acquire. In this case, the waiver provisions 
applicable to a fixed route entity purchasing or leasing inaccessible 
new vehicles applies to the demand responsive operator as well.

Section 37.79 Purchase or Lease of New Rail Vehicles by Public Entities 
                  Operating Rapid or Light Rail Systems

    This section echoes the requirement of Sec.  37.71--all new rail 
cars must be accessible.

[[Page 501]]

Section 37.81 Purchase or Lease of Used Rail Vehicles by Public Entities 
                  Operating Rapid or Light Rail Systems

    This section lays out the requirements for a public entity acquiring 
a used rail vehicle. The requirements and standards are the same as 
those specified for non-rail vehicles in Sec.  37.73. While we recognize 
it may create difficulties for entities in some situations, the statute 
does not include any extension or short-term leases. The Department will 
consider, in a case-by-case basis, how the good faith efforts 
requirement would apply in the case of an agreement between rail 
carriers to permit quick-response, short-term leases of cars over a 
period of time.

 Section 37.83 Remanufacture of Rail Vehicles and Purchase or Lease of 
Remanufactured Rail Vehicles by Public Entities Operating Rapid or Light 
                               Rail System

    This section parallels the remanufacturing section for buses, 
including the exception for historical vehicles. With respect to an 
entity having a class of historic vehicles that may meet the standards 
for the historic vehicle exception (e.g., San Francisco cable cars), the 
Department would not object to a request for application of the 
exception on a system-wide, as approved to car-by-car, basis.

 Section 37.85 Purchase or Lease of New Intercity and Commuter Rail Cars

    This section incorporates the statutory requirement that new 
intercity and commuter rail cars be accessible. The specific 
accessibility provisions of the statute (for example, there are slightly 
different requirements for intercity rail cars versus commuter rail 
cars) are specified in part 38 of this regulation. These standards are 
adopted from the voluntary guidelines issues by the Access Board. The 
section basically parallels the acquisition requirements for buses and 
other vehicles. It should be noted that the definition of commuter rail 
operator clearly allows for additional operators to qualify as commuter, 
since the definition describes the functional characteristics of an 
operator, as well as listing existing commuter rail operators.
    We would point out that the ADA applies this requirement to all new 
vehicles. This includes not only vehicles and systems that currently are 
being operated in the U.S., but new, experimental, or imported vehicles 
and systems. The ADA does not stand in the way of new technology, but it 
does require that new technology, and the benefits it brings, be 
accessible to all persons, including those with disabilities. This point 
applies to all vehicle acquisition provisions of this regulation, 
whether for rail or non-rail, private or public, fixed route or demand 
responsive vehicles and systems.

Section 37.87 Purchase or Lease of Used Intercity and Commuter Rail Cars

    The section also parallels closely the requirements in the ADA for 
the purchase or lease of accessible used rail vehicles. We acknowledge 
that, in some situations, the statutory requirement for to make good 
faith efforts to acquire accessible used vehicles may create 
difficulties for rail operators attempting to lease rail cars quickly 
for a short time (e.g., as fill-ins for cars which need repairs). In 
some cases, it may be possible to mitigate these difficulties through 
means such as making good faith efforts with respect to an overall 
agreement between two rail operators to make cars available to one 
another when needed, rather than each time a car is provided under such 
an agreement.

     Section 37.89 Remanufacture of Intercity and Commuter Rail Cars

    This section requires generally that remanufactured cars be made 
accessible, to the maximum extent feasible. Feasible is defined in 
paragraph (c) of the section to be ``unless an engineering analysis 
demonstrates that remanufacturing the car to be accessible would have a 
significant adverse effect on the structural integrity of the car.'' 
Increased cost is not a reason for viewing other sections of this 
subpart concerning remanufactured vehicles.
    In addition, this section differs from the counterpart sections for 
non-rail vehicles and light and rapid rail vehicles in two ways. First, 
the extension of useful life needed to trigger the section is ten rather 
than five years. Second, there is no historic vehicle exception. Both of 
these differences are statutory.
    Remanufacture of vehicles implies work that extends their expected 
useful life of the vehicle. A mid-life overhaul, not extending the total 
useful life of the vehicle, would not be viewed as a remanufacture of 
the vehicle.

                  Section 37.93 One Car Per Train Rule

    This section implements the statutory directive that all rail 
operators (light, rapid, commuter and intercity) have at least one car 
per train accessible to persons with disabilities, including individuals 
who use wheelchairs by July 26, 1995. (See ADA sections 242(a)(1), 
242(b)(1), 228(b)(1).) Section 37.93 contains this general requirement. 
In some cases, entities will meet the one-car-per train rule through the 
purchase of new cars. In this case, since all new rail vehicles have to 
be accessible, compliance with this provision is straightforward.
    However, certain entities may not be purchasing any new vehicles by 
July 26, 1995, or may not be purchasing enough vehicles to ensure that 
one car per train is accessible. In these cases, these entities will 
have to retrofit existing cars to meet this requirement.

[[Page 502]]

What a retrofitted car must look like to meet the requirement has been 
decided by the Access Board. These standards are contained in part 38 of 
this rule.
    We would point that, consistent with the Access Board standards, a 
rail system using mini-high platforms or wayside lifts is not required, 
in most circumstances, to ``double-stop'' in order to give passengers a 
chance to board the second or subsequent car in a train at the mini-high 
platform or way-side lift. The only exception to this would be a 
situation in which all the wheelchair positions spaces in the first car 
were occupied. In this case, the train would have to double-stop to 
allow a wheelchair user to board, rather than passing the person by when 
there was space available in other than the first car, except where 
doing is necessary to comply with the provisions of section 37.42 of 
this part.

            Section 37.95 Ferries and Other Passenger Vessels

    Although at this time there are no specific requirements for 
vessels, ferries and other passenger vessels operated by public entities 
are subject to the requirements of Sec.  37.5 of this part and 
applicable requirements of 28 CFR part 35, the DOJ rule under title II 
of the ADA.

    Subpart E--Acquisition of Accessible Vehicles by Private Entities

    Section 37.101 Purchase or Lease of Non-Rail Vehicles by Private 
  Entities Not Primarily Engaged in the Business of Transporting People

  Section 37.103 Purchase or Lease of New Non-Rail Vehicles by Private 
    Entities Primarily Engaged in the Business of Transporting People

               Section 37.105 Equivalent Service Standard

    The first two sections spell out the distinctions among the 
different types of service elaborated in the ADA and requirements that 
apply to them. For clarity, we provide the following chart.

               Private Entities ``Not Primarily Engaged''
------------------------------------------------------------------------
           System type             Vehicle capacity       Requirement
------------------------------------------------------------------------
Fixed Route.....................  Over 16...........  Acquire accessible
                                                       vehicle.
Fixed Route.....................  16 or less........  Acquire accessible
                                                       vehicle, or
                                                       equivalency.
Demand Responsive...............  Over 16...........  Acquire accessible
                                                       vehicle, or
                                                       equivalency.
Demand Responsive...............  16 or less........  Equivalency--see
                                                       Sec.   37.171.
------------------------------------------------------------------------


                 Private Entities ``Primarily Engaged''
------------------------------------------------------------------------
                                     Vehicle type/
           System type                 capacity           Requirement
------------------------------------------------------------------------
Fixed route.....................  All new vehicles    Acquire accessible
                                   except auto, van    vehicle.
                                   with less than 8
                                   capacity, or over
                                   the road bus.
Demand responsive...............  Same as above.....  Acquire accessible
                                                       vehicle, or
                                                       equivalency.
Either fixed route or demand      New vans with a     Same as above.
 responsive.                       capacity of less
                                   than 8.
------------------------------------------------------------------------

    Equivalency, for purposes of these requirements, is spelled out in 
Sec.  37.105. It is important to note that some portions of this section 
(referring to response time, reservations capacity, and restrictions on 
trip purpose) apply only to demand responsive systems. Another provision 
(schedules/headways) applies only to fixed route systems. This is 
because these points of comparison apply only to one or the other type 
system. The remaining provisions apply to both kinds of systems.
    In applying the provisions this section, it is important to note 
that they are only points of comparison, not substantive criteria. For 
example, unlike the response time criterion of Sec.  37.131, this 
section does not require that a system provide any particular response 
time. All it says is that, in order for there to be equivalency, if the 
demand responsive system gets a van to a non-disabled person in 2 hours, 
or 8 hours, or a week and a half after a call for service, the system 
must get an accessible van to a person with a disability in 2 hours, or 
8 hours, or a week and a half.
    The vehicle acquisition and equivalency provisions work together in 
the following way. A private entity is about to acquire a vehicle for a 
transportation service in one of the categories to which equivalency is 
relevant. The entity looks at its present service (considered without 
regard to the vehicle it plans to acquire). Does the present service 
meet the equivalency standard? (In answering this question, the point of 
reference is the next potential customer who needs an accessible 
vehicle. The fact that such persons have not called in the past is 
irrelevant). If not, the entity is required to acquire an accessible 
vehicle. If so, the entity may acquire an accessible or an inaccessible 
vehicle. This process must be followed every time the entity purchases 
or leases a vehicle. Given changes in the mixes of both customers and 
vehicles, the answer to the question about equivalency will probably not 
be the same for an entity every time it is asked.
    One difference between the requirements for ``private, not 
primarily'' and ``private, primarily'' entities is that the requirements 
apply to all vehicles purchased or leased for

[[Page 503]]

the former, but only to new vehicles for the latter. This means that 
entities in the latter category are not required to acquire accessible 
vehicles when they purchase or lease used vehicles. Another oddity in 
the statute which entities should note is that the requirement for 
``private, primarily'' entities to acquire accessible vans with less 
than eight passenger capacity (or provide equivalent service) does not 
become effective until after February 25, 1992 (This also date also 
applies no private entities ``primarily engaged'' which purchase 
passenger rail cars). All other vehicle acquisition requirements became 
effective after August 25, 1990.
    The Department views the line between ``private, primarily'' and 
``private, not primarily'' entities as being drawn with respect to the 
bus, van, or other service which the entity is providing. For example, 
there is an obvious sense in which an airline or car rental company is 
primarily engaged in the business of transporting people. If the airline 
or car rental agency runs a shuttle bus from the airport terminal to a 
downtown location or a rental car lot, however, the Department views 
that shuttle service as covered by the ``private, not primarily'' 
requirements of the rule (see discussion of the Applicability sections 
above). This is because the airline or car rental agency is not 
primarily engaged in the business of providing transportation by bus or 
van. The relationship of the bus or van service to an airline's main 
business is analogous to that of a shuttle to a hotel. For this purpose, 
it is of only incidental interest that the main business of the airline 
is flying people around the country instead of putting them up for the 
night.

           Section 37.109 Ferries and Other Passenger Vessels

    Although at this time there are no specific requirements for 
vessels, ferries and other passenger vessels operated by private 
entities are subject to the requirements of Sec.  37.5 of this part and 
applicable requirements of 28 CFR part 36, the DOJ rule under title III 
of the ADA.

      Subpart F--Paratransit as a Complement to Fixed Route Service

  Section 37.121 Requirement for Comparable Complementary Paratransit 
                                 Service

    This section sets forth the basic requirement that all public 
entities who operate a fixed route system have to provide paratransit 
service that is both comparable and complementary to the fixed route 
service. By ``complementary,'' we mean service that acts as a ``safety 
net'' for individuals with disabilities who cannot use the fixed route 
system. By ``comparable,'' we mean service that meets the service 
criteria of this subpart.
    This requirement applies to light and rapid rail systems as well as 
to bus systems, even when rail and bus systems share all or part of the 
same service area. Commuter bus, commuter rail and intercity rail 
systems do not have to provide paratransit, however. The remaining 
provisions of subpart F set forth the details of the eligibility 
requirements for paratransit, the service criteria that paratransit 
systems must meet, the planning process involved, and the procedures for 
applying for waivers based on undue financial burden.
    Paratransit may be provided by a variety of modes. Publicly operated 
dial-a-ride vans, service contracted out to a private paratransit 
provider, user-side subsidy programs, or any combination of these and 
other approaches is acceptable. Entities who feel it necessary to apply 
for an undue financial burden waiver should be aware that one of the 
factors FTA will examine in evaluating waiver requests is efficiencies 
the provider could realize in its paratransit service. Therefore, it is 
important for entities in this situation to use the most economical and 
efficient methods of providing paratransit they can devise.
    It is also important for them to establish and consistently 
implement strong controls against fraud, waste and abuse in the 
paratransit system. Fraud, waste and abuse can drain significant 
resources from a system and control of these problems is an important 
``efficiency for any paratransit system. It will be difficult for the 
Department to grant an undue financial burden waiver to entities which 
do not have a good means of determining if fraud, waste and abuse are 
problems and adequate methods of combating these problems, where they 
are found to exist.

          Section 37.123 ADA Paratransit Eligibility--Standards

                           General Provisions

    This section sets forth the minimum requirements for eligibility for 
complementary paratransit service. All fixed route operators providing 
complementary paratransit must make service available at least to 
individuals meeting these standards. The ADA does not prohibit providing 
paratransit service to anyone. Entities may provide service to 
additional persons as well. Since only service to ADA eligible persons 
is required by the rule, however, only the costs of this service can be 
counted in the context of a request for an undue financial burden 
waiver.
    When the rule says that ADA paratransit eligibility shall be 
strictly limited to persons in the eligible categories, then, it is not 
saying that entities are in any way precluded from serving other people. 
It is saying that the persons who must be provided service, and counting 
the costs of providing them service, in context of an undue burden 
waiver, are limited to the regulatory categories.

[[Page 504]]

                         Temporary Disabilities

    Eligibility may be based on a temporary as well as a permanent 
disability. The individual must meet one of the three eligibility 
criteria in any case, but can do so for a limited period of time. For 
example, if an individual breaks both legs and is in two casts for 
several weeks, becomes a wheelchair user for the duration, and the bus 
route that would normally take him to work is not accessible, the 
individual could be eligible under the second eligibility category. In 
granting eligibility to such a person, the entity should establish an 
expiration date for eligibility consistent with the expected end of the 
period disability.

                        Trip-by-Trip Eligibility

    A person may be ADA paratransit eligible for some trips but not 
others. Eligibility does not inhere in the individual or his or her 
disability, as such, but in meeting the functional criteria of inability 
to use the fixed route system established by the ADA. This inability is 
likely to change with differing circumstances.
    For example, someone whose impairment-related condition is a severe 
sensitivity to temperatures below 20 degrees is not prevented from using 
fixed route transit when the temperature is 75 degrees. Someone whose 
impairment-related condition is an inability to maneuver a wheelchair 
through snow is not prevented from using fixed route transit when there 
is no snow on the ground. Someone with a cognitive disability may have 
learned to take the same bus route to a supported employment job every 
day. This individual is able to navigate the system for work purposes 
and therefore would not be eligible for paratransit for work trips. But 
the individual may be unable to get to other destinations on the bus 
system without getting lost, and would be eligible for paratransit for 
non-work trips. Someone who normally drives his own car to a rail system 
park and ride lot may have a specific impairment related condition 
preventing him from getting to the station when his car is in the shop. 
A person who can use accessible fixed route service can go to one 
destination on an accessible route; another destination would require 
the use of an inaccessible route. The individual would be eligible for 
the latter but not the former.
    In many cases, though the person is eligible for some trips but not 
others, eligibility determinations would not have to be made literally 
on a trip-by-trip basis. It may often be possible to establish the 
conditions on eligibility as part of the initial eligibility 
determination process. Someone with a temperature sensitivity might be 
granted seasonal eligibility. Somebody who is able to navigate the 
system for work but not non-work trips could have this fact noted in his 
or her eligibility documentation. Likewise, someone with a variable 
condition (e.g., multiple sclerosis, HIV disease, need for kidney 
dialysis) could have their eligibility based on the underlying 
condition, with paratransit need for a particular trip dependent on 
self-assessment or a set of medical standards (e.g., trip within a 
certain amount of time after a dialysis session). On the other hand, 
persons in the second eligibility category (people who can use 
accessible fixed route service where it exists) would be given service 
on the basis of the particular route they would use for a given trip.
    Because entities are not precluded from providing service beyond 
that required by the rule, an entity that believes it is too difficult 
to administer a program of trip-by-trip eligibility is not required to 
do so. Nothing prevents an entity from providing all requested trips to 
a person whom the ADA requires to receive service for only some trips. 
In this case, if the entity intends to request an undue financial burden 
waiver, the entity, as provided in the undue burden provisions of this 
rule, must estimate, by a statistically valid technique, the percentage 
of its paratransit trips that are mandated by the ADA. Only that 
percentage of its total costs will be counted in considering the undue 
burden waiver request.

                         Category 1 Eligibility

    The first eligibility category includes, among others, persons with 
mental or visual impairments who, as a result, cannot ``navigate the 
system.'' This eligibility category includes people who cannot board, 
ride, or disembark from an accessible vehicle ``without the assistance 
of another individual.'' This means that, if an individual needs an 
attendant to board, ride, or disembark from an accessible fixed route 
vehicles (including ``navigating the system''), the individual is 
eligible for paratransit. One implication of this language is that an 
individual does not lose paratransit eligibility based on ``inability to 
navigate the system'' because the individual chooses to travel with a 
friend on the paratransit system (even if the friend could help the 
person navigate the fixed route system). Eligibility in this category is 
based on ability to board, ride, and disembark independently.
    Mobility training (e.g., of persons with mental or visual 
impairments) may help to improve the ability of persons to navigate the 
system or to get to a bus stop. Someone who is successfully mobility 
trained to use the fixed route system for all or some trips need not be 
provided paratransit service for those trips. The Department encourages 
entities to sponsor such training as a means of assisting individuals to 
use fixed route rather than paratransit.

[[Page 505]]

                         Category 2 Eligibility

    The second eligibility criterion is the broadest, with respect to 
persons with mobility impairments, but its impact should be reduced over 
time as transit systems become more accessible. This category applies to 
persons who could use accessible fixed route transportation, but 
accessible transportation is not being used at the time, and on the 
route, the persons would travel. This concept is route based, not system 
based.
    Speaking first of bus systems, if a person is traveling from Point A 
to Point B on route 1, and route 1 is accessible, the person is not 
eligible for paratransit for the trip. This is true even though other 
portions of the system are still inaccessible. If the person is 
traveling from Point A to Point C on route 2, which is not accessible, 
the person is eligible for that trip. If the person is traveling from 
Point A to Point B on accessible route 1, with a transfer at B to go on 
inaccessible route 3 to Point D, then the person is eligible for the 
second leg of the trip. (The entity could choose to provide a 
paratransit trip from A to D or a paratransit or on-call bus trip from B 
to D.)
    For purposes of this standard, we view a route as accessible when 
all buses scheduled on the route are accessible. Otherwise, it is 
unlikely that an accessible vehicle could be provided ``within a 
reasonable period of [a] time'' when the individual wants to travel, as 
the provision requires. We recognize that some systems' operations may 
not be organized in a way that permits determining whether a given route 
is accessible, even though a route-by-route determination appears to be 
contemplated by the statute. In such cases, it may be that category 2 
eligibility would persist until the entire system was eligible.
    With respect to a rail system, an individual is eligible under this 
standard if, on the route or line he or she wants to use, there is not 
yet one car per train accessible or if key stations are not yet 
accessible. This eligibility remains even if bus systems covering the 
area served by the rail system have become 100 percent accessible. This 
is necessary because people use rail systems for different kinds of 
trips than bus systems. It would often take much more in the way of 
time, trouble, and transfers for a person to go on the buses of one or 
more transit authorities than to have a direct trip provided by the rail 
operator. Since bus route systems are often designed to feed rail 
systems rather than duplicate them, it may often be true that ``you 
can't get there from here'' relying entirely on bus routes or the 
paratransit service area that parallels them.
    If the lift on a vehicle cannot be deployed at a particular stop, an 
individual is eligible for paratransit under this category with respect 
to the service to the inaccessible stop. If on otherwise accessible 
route 1, an individual wants to travel from Point A to Point E, and the 
lift cannot be deployed at E, the individual is eligible for paratransit 
for the trip. (On-call bus would not work as a mode of providing this 
trip, since a bus lift will not deploy at the stop.) This is true even 
though service from Point A to all other points on the line is fully 
accessible. In this circumstance, the entity should probably think 
seriously about working with the local government involved to have the 
stop moved or made accessible.
    When we say that a lift cannot be deployed, we mean literally that 
the mechanism will not work at the location to permit a wheelchair user 
or other person with a disability to disembark or that the lift will be 
damaged if it is used there. It is not consistent with the rule for a 
transit provider to declare a stop off-limits to someone who uses the 
lift while allowing other passengers to use the stop. However, if 
temporary conditions not under the operator's control (e.g., 
construction, an accident, a landslide) make it so hazardous for anyone 
to disembark that the stop is temporarily out of service for all 
passengers may the operator refuse to allow a passenger to disembark 
using the lift.

                         Category 3 Eligibility

    The third eligibility criterion concerns individuals who have a 
specific impairment-related condition which prevents them from getting 
to or from a stop or station. As noted in the legislative history of the 
ADA, this is intended to be a ``very narrow exception'' to the general 
rule that difficulty in traveling to or from boarding or disembarking 
locations is not a basis for eligibility.
    What is a specific impairment-related condition? The legislative 
history mentions four examples: Chronic fatigue, blindness, a lack of 
cognitive ability to remember and follow directions, or a special 
sensitivity to temperature. Impaired mobility, severe communications 
disabilities (e.g., a combination of serious vision and hearing 
impairments), cardiopulmonary conditions, or various other serious 
health problems may have similar effects. The Department does not 
believe that it is appropriate, or even possible, to create an 
exhaustive list.
    What the rule uses as an eligibility criterion is not just the 
existence of a specific impairment-related condition. To be a basis for 
eligibility, the condition must prevent the individual from traveling to 
a boarding location or from a disembarking location. The word 
``prevent'' is very important. For anyone, going to a bus stop and 
waiting for a bus is more difficult and less comfortable than waiting 
for a vehicle at one's home. This is likely to be all the more true for 
an individual with a disability. But for many persons with disabilities, 
in many circumstances, getting to a bus stop is possible.

[[Page 506]]

If an impairment related condition only makes the job of accessing 
transit more difficult than it might otherwise be, but does not prevent 
the travel, then the person is not eligible.
    For example, in many areas, there are not yet curb cuts. A 
wheelchair user can often get around this problem by taking a less 
direct route to a destination than an ambulatory person would take. That 
involves more time, trouble, and effort than for someone without a 
mobility impairment. But the person can still get to the bus stop. On 
the basis of these architectural barriers, the person would not be 
eligible.
    Entities are cautioned that, particularly in cases involving lack of 
curb cuts and other architectural barrier problems, assertions of 
eligibility should be given tight scrutiny. Only if it is apparent from 
the facts of a particular case that an individual cannot find a 
reasonable alternative path to a location should eligibility be granted.
    If we add a foot of snow to the scenario, then the same person 
taking the same route may be unable to get to the bus stop. It is not 
the snow alone that stops him; it is the interaction of the snow and the 
fact that the individual has a specific-impairment related condition 
that requires him to push a wheelchair through the snow that prevents 
the travel.
    Inevitably, some judgment is required to distinguish between 
situations in which travel is prevented and situations in which it is 
merely made more difficult. In the Department's view, a case of 
``prevented travel'' can be made not only where travel is literally 
impossible (e.g., someone cannot find the bus stop, someone cannot push 
a wheelchair through the foot of snow or up a steep hill) but also where 
the difficulties are so substantial that a reasonable person with the 
impairment-related condition in question would be deterred from making 
the trip.
    The regulation makes the interaction between an impairment-related 
condition and the environmental barrier (whether distance, weather, 
terrain, or architectural barriers) the key to eligibility 
determinations. This is an individual determination. Depending on the 
specifics of their impairment-related condition, one individual may be 
able to get from his home to a bus stop under a given set of conditions, 
while his next-door neighbor may not.

                               Companions

    The ADA requires entities to provide paratransit to one person 
accompanying the eligible individual, with others served on a space-
available basis. The one individual who is guaranteed space on the 
vehicle can be anyone--family member, business associate, friend, date, 
etc. The provider cannot limit the eligible individual's choice of type 
of companion. The transit authority may require that the eligible 
individual reserve a space for the companion when the individual 
reserves his or her own ride. This one individual rides even if this 
means that there is less room for other eligible individuals. Additional 
individuals beyond the first companion are carried only on a space 
available basis; that is, they do not displace other ADA paratransit 
eligible individuals.
    A personal care attendant (i.e., someone designated or employed 
specifically to help the eligible individual meet his or her personal 
needs) always may ride with the eligible individual. If there is a 
personal care attendant on the trip, the eligible individual may still 
bring a companion, plus additional companions on a space available 
basis. The entity may require that, in reserving the trip, the eligible 
individual reserve the space for the attendant.
    To prevent potential abuse of this provision, the rule provides that 
a companion (e.g., friend or family member) does not count as a personal 
care attendant unless the eligible individual regularly makes use of a 
personal care attendant and the companion is actually acting in that 
capacity. As noted under Sec.  37.125, a provider may require that, as 
part of the initial eligibility certification process, an individual 
indicate whether he or she travels with a personal care attendant. If 
someone does not indicate the use of an attendant, then any individual 
accompanying him or her would be regarded simply as a companion.
    To be viewed as ``accompanying'' the eligible individual, a 
companion must have the same origin and destination points as the 
eligible individual. In appropriate circumstances, entities may also 
wish to provide service to a companion who has either an origin or 
destination, but not both, with the eligible individual (e.g., the 
individual's date is dropped off at her own residence on the return trip 
from a concert).

           Section 37.125 ADA Paratransit Eligibility--Process

    This section requires an eligibilty process to be established by 
each operator of complementary paratransit. The details of the process 
are to be devised through the planning and public participation process 
of this subpart. The process may not impose unreasonable administrative 
burdens on applicants, and, since it is part of the entity's 
nondiscrimination obligations, may not involve ``user fees'' or 
application fees to the applicant.
    The process may include functional criteria related to the 
substantive eligibility criteria of Sec.  37.123 and, where appropriate, 
functional evaluation or testing of applicants. The substantive 
eligibility process is not aimed at making a medical or diagnostic 
determination. While evaluation by a physician (or professionals in 
rehabilitation or

[[Page 507]]

other relevant fields) may be used as part of the process, a diagnosis 
of a disability is not dispositive. What is needed is a determination of 
whether, as a practical matter, the individual can use fixed route 
transit in his or her own circumstances. That is a transportation 
decision primarily, not a medical decision.
    The goal of the process is to ensure that only people who meet the 
regulatory criteria, strictly applied, are regarded as ADA paratransit 
eligible. The Department recognizes that transit entities may wish to 
provide service to other persons, which is not prohibited by this rule. 
However, the eligibility process should clearly distinguish those 
persons who are ADA eligible from those who are provided service on 
other grounds. For example, eligibility documentation must clearly state 
whether someone is ADA paratransit eligible or eligible on some other 
basis.
    Often, people tend to think of paratransit exclusively in terms of 
people with mobility impairments. Under the ADA, this is not accurate. 
Persons with visual impairments may be eligible under either the first 
or third eligibility categories. To accommodate them, all documents 
concerning eligibility must be made available in one or more accessible 
formats, on request. Accessible formats include computer disks, braille 
documents, audio cassettes, and large print documents. A document does 
not necessarily need to be made available in the format a requester 
prefers, but it does have to be made available in a format the person 
can use. There is no use giving a computer disk to someone who does not 
have a computer, for instance, or a braille document to a person who 
does not read braille.
    When a person applies for eligibility, the entity will provide all 
the needed forms and instructions. These forms and instructions may 
include a declaration of whether the individual travels with a personal 
care attendant. The entity may make further inquiries concerning such a 
declaration (e.g., with respect to the individual's actual need for a 
personal care attendant).
    When the application process is complete--all necessary actions by 
the applicant taken--the entity should process the application in 21 
days. If it is unable to do so, it must begin to provide service to the 
applicant on the 22nd day, as if the application had been granted. 
Service may be terminated only if and when the entity denies the 
application. All determinations shall be in writing; in the case of a 
denial, reasons must be specified. The reasons must specifically relate 
the evidence in the matter to the eligibility criteria of this rule and 
of the entity's process. A mere recital that the applicant can use fixed 
route transit is not sufficient.
    For people granted eligibility, the documentation of eligibility 
shall include at least the following information:

--The individual's name
--The name of the transit provider
--The telephone number of the entity's paratransit coordinator
--An expiration date for eligibility
--Any conditions or limitations on the individual's eligibility, 
including the use of a personal care attendant.

    The last point refers to the situation in which a person is eligible 
for some trips but not others. Or if the traveler is authorized to have 
a personal care attendant ride free of charge. For example, the 
documentation may say that the individual is eligible only when the 
temperature falls below a certain point, or when the individual is going 
to a destination not on an accessible bus route, or for non-work trips, 
etc.
    As the mention of an expiration date implies, certification is not 
forever. The entity may recertify eligibility at reasonable intervals to 
make sure that changed circumstances have not invalidated or changed the 
individual's eligibility. In the Department's view, a reasonable 
interval for recertification is probably between one and three years. 
Less than one year would probably be too burdensome for consumers; over 
three years would begin to lose the point of doing recertifications. The 
recertification interval should be stated in the entity's plan. Of 
course, a user of the service can apply to modify conditions on his or 
her eligibility at any time.
    The administrative appeal process is intended to give applicants who 
have been denied eligibility the opportunity to have their cases heard 
by some official other than the one who turned them down in the first 
place. In order to have appropriate separation of functions--a key 
element of administrative due process--not only must the same person not 
decide the case on appeal, but that person, to the extent practicable, 
should not have been involved in the first decision (e.g., as a member 
of the same office, or a supervisor or subordinate of the original 
decisionmaker). When, as in the case of a small transit operator, this 
degree of separation is not feasible, the second decisionmaker should at 
least be ``bubbled'' with respect to the original decision (i.e., not 
have participated in the original decision or discussed it with the 
original decisionmaker). In addition, there must be an opportunity to be 
heard in person as well as the chance to present written evidence and 
arguments. All appeals decisions must be in writing, stating the reasons 
for the decision.
    To prevent the filing of stale claims, the entity may establish a 60 
day ``statute of limitations'' on filing of appeals, the time starting 
to run on the date the individual is

[[Page 508]]

notified on the negative initial decision. After the appeals process has 
been completed (i.e., the hearing and/or written submission completed), 
the entity should make a decision within 30 days. If it does not, the 
individual must be provided service beginning the 31st day, until and 
unless an adverse decision is rendered on his or her appeal.
    Under the eligibility criteria of the rule, an individual has a 
right to paratransit if he or she meets the eligibility criteria. As 
noted in the discussion of the nondiscrimination section, an entity may 
refuse service to anindividual with a disability who engages in violent, 
seriously disruptive, or illegal conduct, using the same standards for 
exclusion that would apply to any other person who acted in such an 
inappropriate way.
    The rule also allows an entity to establish a process to suspend, 
for a reasonable period of time, the provision of paratransit service to 
an ADA eligible person who establishes a pattern or practice of missing 
scheduled trips. The purpose of this process would be to deter or deal 
with chronic ``no-shows.'' The sanction system--articulated criteria for 
the imposition of sanctions, length of suspension periods, details of 
the administrative process, etc.--would be developed through the public 
planning and participation process for the entity's paratransit plan, 
and the result reflected in the plan submission to FTA.
    It is very important to note that sanctions could be imposed only 
for a ``pattern or practice'' of missed trips. A pattern or practice 
involves intentional, repeated or regular actions, not isolated, 
accidental, or singular incidents. Moreover, only actions within the 
control of the individual count as part of a pattern or practice. Missed 
trips due to operator error are not attributable to the individual 
passenger for this purpose. If the vehicle arrives substantially after 
the scheduled pickup time, and the passenger has given up on the vehicle 
and taken a taxi or gone down the street to talk to a neighbor, that is 
not a missed trip attributable to the passenger. If the vehicle does not 
arrive at all, or is sent to the wrong address, or to the wrong entrance 
to a building, that is not a missed trip attributable to the passenger. 
There may be other circumstances beyond the individual's control (e.g., 
a sudden turn for the worse in someone with a variable condition, a 
sudden family emergency) that make it impracticable for the individual 
to travel at the scheduled time and also for the individual to notify 
the entity in time to cancel the trip before the vehicle comes. Such 
circumstances also would not form part of a sanctionable pattern or 
practice.
    Once an entity has certified someone as eligible, the individual's 
eligibility takes on the coloration of a property right. (This is not 
merely a theoretical statement. If one depends on transportation one has 
been found eligible for to get to a job, and the eligibility is removed, 
one may lose the job. The same can be said for access to medical care or 
other important services.) Consequently, before eligibility may be 
removed ``for cause'' under this provision, the entity must provide 
administrative due process to the individual.
    If the entity proposes to impose sanctions on someone, it must first 
notify the individual in writing (using accessible formats where 
necessary). The notice must specify the basis of the proposed action 
(e.g., Mr. Smith scheduled trips for 8 a.m. on May 15, 2 p.m. on June 3, 
9 a.m. on June 21, and 9:20 p.m. on July 10, and on each occasion the 
vehicle appeared at the scheduled time and Mr. Smith was nowhere to be 
found) and set forth the proposed sanction (e.g., Mr. Smith would not 
receive service for 15 days).
    The entity would provide the individual an opportunity to be heard 
(i.e., an in-person informal hearing before a decisionmaker) as well as 
to present written and oral information and arguments. All relevant 
entity records and personnel would be made available to the individual, 
and other persons could testify. It is likely that, in many cases, an 
important factual issue would be whether a missed trip was the 
responsibility of the provider or the passenger, and the testimony of 
other persons and the provider's records or personnel are likely to be 
relevant in deciding this issue. While the hearing is intended to be 
informal, the individual could bring a representative (e.g., someone 
from an advocacy organization, an attorney).
    The individual may waive the hearing and proceed on the basis of 
written presentations. If the individual does not respond to the notice 
within a reasonable time, the entity may make, in effect, a default 
finding and impose sanctions. If there is a hearing, and the individual 
needs paratransit service to attend the hearing, the entity must provide 
it. We would emphasize that, prior to a finding against the individual 
after this due process procedure, the individual must continue to 
receive service. The entity cannot suspend service while the matter is 
pending.
    The entity must notify the individual in writing about the decision, 
the reasons for it, and the sanctions imposed, if any. Again, this 
information would be made available in accessible formats. In the case 
of a decision adverse to the individual, the administrative appeals 
process of this section would apply. The sanction would be stayed 
pending an appeal.
    There are means other than sanctions, however, by which a transit 
provider can deal with a ``no-show'' problem in its system. Providers 
who use ``real time scheduling'' report that this technique is very 
effective in reducing no-shows and cancellations, and increasing the mix 
of real time scheduling in a system can probably be of benefit in this 
area. Calling the customer to reconfirm a

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reasonable time before pickup can head off some problems, as can 
educating consumers to call with cancellations ahead of time. Training 
of dispatch and operator personnel can help to avoid miscommunications 
that lead to missed trips.

          Section 37.127 Complementary Paratransit for Visitors

    This section requires each entity having a complementary paratransit 
system to provide service to visitors from out of town on the same basis 
as it is provided to local residents. By ``on the same basis,'' we mean 
under all the same conditions, service criteria, etc., without 
distinction. For the period of a visit, the visitor is treated exactly 
like an eligible local user, without any higher priority being given to 
either.
    A visitor is defined as someone who does not reside in the 
jurisdiction or jurisdictions served by the public entity or other 
public entities with which it coordinates paratransit service. For 
example, suppose a five-county metropolitan area provides coordinated 
paratransit service under a joint plan. A resident of any of the five 
counties would not be regarded as a visitor in any of them. Note that 
the rule talks in terms of ``jurisdiction'' rather than ``service 
area.'' If an individual lives in XYZ County, but outside the fixed 
route service area of that county's transit provider, the individual is 
still not a visitor for purposes of paratransit in PQR County, if PQR is 
one of the counties with which XYZ provides coordinated paratransit 
service.
    A visitor can become eligible in one of two ways. The first is to 
present documentation from his or her ``home'' jurisdiction's 
paratransit system. The local provider will give ``full faith and 
credit'' to the ID card or other documentation from the other entity. If 
the individual has no such documentation, the local provider may require 
the provision of proof of visitor status (i.e., proof of residence 
somewhere else) and, if the individual's disability is not apparent, 
proof of the disability (e.g., a letter from a doctor or rehabilitation 
professional). Once this documentation is presented and is satisfactory, 
the local provider will make service available on the basis of the 
individual's statement that he or she is unable to use the fixed route 
transit system.
    The local provider need serve someone based on visitor eligibility 
for no more than 21 days. After that, the individual is treated the same 
as a local person for eligibility purposes. This is true whether the 21 
days are consecutive or parceled out over several shorter visits. The 
local provider may require the erstwhile visitor to apply for 
eligibility in the usual local manner. A visitor who expects to be 
around longer than 21 days should apply for regular eligibility as soon 
as he arrives. The same approach may be used for a service of requested 
visits totaling 21 days or more in a relating compact period of time. 
Preferably, this application process should be arranged before the 
visitor arrives, by letter, telephone or fax, so that a complete 
application can be processed expeditiously.

                     Section 37.129 Types of Service

    The basic mode of service for complementary paratransit is demand 
responsive, origin-to-destination service. This service may be provided 
for persons in any one of the three eligibility categories, and must 
always be provided to persons in the first category (e.g., people who 
cannot navigate the system). The local planning process should decide 
whether, or in what circumstances, this service is to be provided as 
door-to-door or curb-to-curb service.
    For persons in the second eligibility category (e.g., persons who 
can use accessible buses, but do not have an accessible bus route 
available to take them to their destination), origin-to-destination 
service can be used. Alternatively, the entity can provide either of two 
other forms of service. One is on-call bus, in which the individual 
calls the provider and arranges for one or more accessible buses to 
arrive on the routes he needs to use at the appropriate time. On-call 
bus service must meet all the service criteria of Sec.  37.131, except 
that on-call buses run only on fixed routes and the fare charged can be 
only the fixed route fare that anyone pays on the bus (including 
discounts).
    The second option is ``feeder paratransit'' to an accessible fixed 
route that will take the individual to his or her destination. Feeder 
paratransit, again, would have to meet all the criteria of Sec.  37.131. 
With respect to fares, the paratransit fare could be charged, but the 
individual would not be double charged for the trip. That is, having 
paid the paratransit fare, the transfer to the fixed route would be 
free.
    For persons in the third eligibility category (e.g., persons who can 
use fixed route transit but who, because of a specific impairment-
related condition, cannot get to or from a stop), the ``feeder 
paratransit'' option, under the conditions outlined above, is available. 
For some trips, it might be necessary to arrange for feeder service at 
both ends of the fixed route trip. Given the more complicated logistics 
of such arrangements, and the potential for a mistake that would 
seriously inconvenience the passenger, the transit provider should 
consider carefully whether such a ``double feeder'' system, while 
permissible, is truly workable in its system (as opposed to a simpler 
system that used feeder service only at one end of a trip when the bus 
let the person off at a place from which he or she could independently 
get to the destination). There may be some

[[Page 510]]

situations in which origin to destination service is easier and less 
expensive.

 Section 37.131 Service Criteria for Complementary Paratransit Service 
                                  Area

    The basic bus system service area is a corridor with a width of \3/
4\ of a mile on each side of each fixed route. At the end of a route, 
there is a semicircular ``cap'' on the corridor, consisting of a three-
quarter mile radius from the end point of the route to the parallel 
sides of the corridor.
[GRAPHIC] [TIFF OMITTED] TC02FE91.191

    Complementary paratransit must provide service to any origin or 
destination point within a corridor fitting this description around any 
route in the bus system. Note that this does not say that an eligible 
user must live within a corridor in order to be eligible. If an 
individual lives outside the corridor, and can find a way of getting to 
a pickup point within the corridor, the service must pick him up there. 
The same holds true at the destination end of the trip.
    Another concept involved in this service criterion is the core 
service area. Imagine a bus route map of a typical city. Color the bus 
routes and their corridors blue, against the white outline map. In the 
densely populated areas of the city, the routes (which, with their 
corridors attached, cut 1\1/2\ mile swaths) merge together into a solid 
blue mass. There are few, if any, white spots left uncovered, and they 
are likely to be very small. Paratransit would serve all origins and 
destinations in the solid blue mass.
    But what of the little white spots surrounded by various bus 
corridors? Because it would make sense to avoid providing service to 
such small isolated areas, the rule requires paratransit service there 
as well. So color them in too.
    Outside the core area, though, as bus routes follow radial arteries 
into the suburbs and exurbs (we know real bus route maps are more 
complicated than this, but we simplify for purposes of illustration), 
there are increasingly wide white areas between the blue corridors, 
which may have corridors on either side of them but are not small areas 
completely surrounded by corridors. These white spaces are not part of 
the paratransit service area and the entity does not have to serve 
origins and destinations there. However, if, through the planning 
process, the entity wants to enlarge the width of one or more of the 
blue corridors from the \3/4\ of a mile width, it can do so, to a 
maximum of 1\1/2\ miles on each side of a route. The cost of service 
provided within such an expanded corridor can be counted in connection 
with an undue financial burden waiver request.
    There may be a part of the service area where part of one of the 
corridors overlaps a political boundary, resulting in a requirement to 
serve origins and destinations in a neighboring jurisdiction which the 
entity lacks legal authority to service. The entity is not required to 
serve such origins and destinations, even though the area on the other 
side of the political boundary is within a corridor. This exception to 
the service area criterion does not automatically apply whenever there 
is a political boundary, only when there is a legal bar to the entity 
providing service on the other side of the boundary.
    The rule requires, in this situation, that the entity take all 
practicable steps to get around the problem so that it can provide 
service throughout its service area. The entity should work with the 
state or local governments involved, via coordination plans, reciprocity 
agreements, memoranda of understanding or other means to prevent 
political boundaries from becoming barriers to the travel of individuals 
with disabilities.
    The definition of the service area for rail systems is somewhat 
different, though many of the same concepts apply.

[[Page 511]]

[GRAPHIC] [TIFF OMITTED] TC02FE91.192

    Around each station on the line (whether or not a key station), the 
entity would draw a circle with a radius of \3/4\ mile. Some circles may 
touch or overlap. The series of circles is the rail system's service 
area. (We recognize that, in systems where stations are close together, 
this could result in a service area that approached being a corridor 
like that of a bus line.) The rail system would provide paratransit 
service from any point in one circle to any point in any other circle. 
The entity would not have to provide service to two points within the 
same circle, since a trip between two points in the vicinity of the same 
station is not a trip that typically would be taken by train. Nor would 
the entity have to provide service to spaces between the circles. For 
example, a train trip would not get close to point x; one would have to 
take a bus or other mode of transportation to get from station E or F to 
point x. A paratransit system comparable to the rail service area would 
not be required to take someone there either.
    Rail systems typically provide trips that are not made, or cannot be 
made conveniently, on bus systems. For example, many rail systems cross 
jurisdictional boundaries that bus systems often do not. One can travel 
from Station A to a relatively distant Station E on a rail system in a 
single trip, while a bus trip between the same points, if possible at 
all, may involve a number of indirect routings and transfers, on two bus 
systems that may not interface especially well.
    Rail operators have an obligation to provide paratransit equivalents 
of trips between circles to persons who cannot use fixed route rail 
systems because they cannot navigate the system, because key stations or 
trains are not yet accessible, or because they cannot access stations 
from points within the circles because of a specific impairment-related 
condition. For individuals who are eligible in category 2 because they 
need an accessible key station to use the system, the paratransit 
obligation extends only to transportation among ``circles'' centered on 
designated key stations (since, even when the key station plan is fully 
implemented, these individuals will be unable to use non-key stations).
    It is not sufficient for a rail operator to refer persons with 
disabilities to an accessible bus system in the area. The obligation to 
provide paratransit for a rail system is independent of the operations 
of any bus system serving the same area, whether operated by the same 
entity that operates the rail system or a different entity. Obviously, 
it will be advantageous for bus and rail systems to coordinate their 
paratransit efforts, but a coordinated system would have to ensure 
coverage of trips comparable to rail trips that could not conveniently 
be taken on the fixed route bus system.

                              Response Time

    Under this provision, an entity must make its reservation service 
available during the hours its administrative offices are open. If those 
offices are open 9 to 5, those are the hours during which the 
reservations service must be open, even if the entity's transit service 
operated 6 a.m. to midnight. On days prior to a service day on which the 
administrative offices are not open at all (e.g., a Sunday prior to a 
Monday service day), the reservation service would also be open 9 to 5. 
Note that the reservation service on any day

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does not have to be provided directly by a ``real person.'' An answering 
machine or other technology can suffice.
    Any caller reaching the reservation service during the 9 to 5 
period, in this example, could reserve service for any time during the 
next 6 a.m. to 12 midnight service day. This is the difference between 
``next day scheduling'' and a system involving a 24-hour prior 
reservation requirement, in which a caller would have to reserve a trip 
at 7 a.m. today if he or she wanted to travel at 7 a.m. tomorrow. The 
latter approach is not adequate under this rule.
    The entity may use real time scheduling for all or part of its 
service. Like the Moliere character who spoke prose all his life without 
knowing it, many entities may already be using some real time scheduling 
(e.g., for return trips which are scheduled on a when-needed basis, as 
opposed to in advance). A number of transit providers who have used real 
time scheduling believe that it is more efficient on a per-trip basis 
and reduces cancellations and no-shows significantly. We encourage 
entities to consider this form of service.
    Sometimes users want to schedule service well in advance, to be sure 
of traveling when they want to. The rule tells providers to permit 
reservations to be made as much as 14 days in advance. In addition, 
though an entity may negotiate with a user to adjust pickup and return 
trip times to make scheduling more efficient, the entity cannot insist 
on scheduling a trip more than one hour earlier or later than the 
individual desires to travel. Any greater deviation from desired trip 
would exceed the bounds of comparability.

                                  Fares

    To calculate the proper paratransit fare, the entity would determine 
the route(s) that an individual would take to get from his or her origin 
to his or her destination on the fixed route system. At the time of day 
the person was traveling, what is the fare for that trip on those 
routes? Applicable charges like transfer fees or premium service charges 
may be added to the amount, but discounts (e.g., the half-fare discount 
for off-peak fixed route travel by elderly and handicapped persons) 
would not be subtracted. The transit provider could charge up to twice 
the resulting amount for the paratransit trip.
    The mode through which paratransit is provided does not change the 
method of calculation. For example, if paratransit is provided via user 
side subsidy taxi service rather than publicly operated dial-a-ride van 
service, the cost to the user could still be only twice the applicable 
fixed route fare. The system operates the same regardless of whether the 
paratransit trip is being provided in place of a bus or a rail trip the 
user cannot make on the fixed route system. Where bus and rail systems 
are run by the same provider (or where the same bus provider runs 
parallel local and express buses along the same route), the comparison 
would be made to the mode on which a typical fixed route user would make 
the particular trip, based on schedule, length, convenience, avoidance 
of transfers, etc.
    Companions are charged the same fare as the eligible individual they 
are accompanying. Personal care attendants ride free.
    One exception to the fare requirement is made for social service 
agency (or other organization-sponsored) trips. This exception, which 
allows the transit provider to negotiate a price with the agency that is 
more than twice the relevant fixed route fare, applies to ``agency 
trips,'' by which we mean trips which are guaranteed to the agency for 
its use. That is, if an agency wants 12 slots for a trip to the mall on 
Saturday for clients with disabilities, the agency makes the reservation 
for the trips in its name, the agency will be paying for the 
transportation, and the trips are reserved to the agency, for whichever 
12 people the agency designates, the provider may then negotiate any 
price it can with the agency for the trips. We distinguish this 
situation from one in which an agency employee, as a service, calls and 
makes an individual reservation in the name of a client, where the 
client will be paying for the transportation.

            Restrictions and Priorities Based on Trip Purpose

    This is a simple and straightforward requirement. There can be no 
restrictions or priorities based on trip purpose in a comparable 
complementary paratransit system. When a user reserves a trip, the 
entity will need to know the origin, destination, time of travel, and 
how many people are traveling. The entity does not need to know why the 
person is traveling, and should not even ask.

                        Hours and Days of Service

    This criterion says simply that if a person can travel to a given 
destination using a given fixed route at a given time of day, an ADA 
paratransit eligible person must be able to travel to that same 
destination on paratransit at that time of day. This criterion 
recognizes that the shape of the service area can change. Late at night, 
for example, it is common for certain routes not to be run. Those 
routes, and their paratransit corridors, do not need to be served with 
paratransit when the fixed route system is not running on them. One 
couldn't get to destinations in that corridor by fixed route at those 
times, so paratransit service is not necessary either.
    It should be pointed out that service during low-demand times need 
not be by the same paratransit mode as during higher usage periods. For 
example, if a provider

[[Page 513]]

uses its own paratransit vans during high demand periods, it could use a 
private contractor or user-side subsidy provider during low demand 
periods. This would presumably be a more efficient way of providing late 
night service. A call-forwarding device for communication with the 
auxiliary carrier during these low demand times would be perfectly 
acceptable, and could reduce administrative costs.

                          Capacity Constraints

    This provision specifically prohibits two common mechanisms that 
limit use of a paratransit system so as to constrain demand on its 
capacity. The first is a waiting list. Tyically, a waiting list involves 
a determination by a provider that it can provide service only to a 
given number of eligible persons. Other eligible persons are not able to 
receive service until one of the people being served moves away or 
otherwise no longer uses the service. Then the persons on the waiting 
list can move up. The process is analogous to the wait that persons in 
some cities have to endure to be able to buy season tickets to a sold-
out slate of professional football games.
    The second mechanism specifically mentioned is a number limit on the 
trips a passenger can take in a given period of time. It is a kind of 
rationing in which, for example, if one has taken his quota of 30 trips 
this month, he cannot take further trips for the rest of the month.
    In addition, this paragraph prohibits any operational pattern or 
practice that significantly limits the availability of service of ADA 
paratransit eligible persons. As discussed under Sec.  37.125 in the 
context of missed trips by passengers, a ``pattern or practice'' 
involves, regular, or repeated actions, not isolated, accidental, or 
singular incidents. A missed trip, late arrival, or trip denial now and 
then does not trigger this provision.
    Operational problems outside the control of the entity do not count 
as part of a pattern or practice under this provision. For example, if 
the vehicle has an accident on the way to pick up a passenger, the late 
arrival would not count as part of a pattern or practice. If something 
that could not have been anticipated at the time the trip was scheduled 
(e.g., a snowstorm, an accident or hazardous materials incident that 
traps the paratransit vehicle, like all traffic on a certain highway, 
for hours), the resulting missed trip would not count as part of a 
pattern or practice. On the other hand, if the entity regularly does not 
maintain its vehicles well, such that frequent mechanical breakdowns 
result in missed trips or late arrivals, a pattern or practice may 
exist. This is also true in a situation in which scheduling practices 
fail to take into account regularly occurring traffic conditions (e.g., 
rush hour traffic jams), resulting in frequent late arrivals.
    The rule mentions three specific examples of operational patterns or 
practices that would violate this provision. The first is a pattern or 
practice of substantial numbers of significantly untimely pickups 
(either for initial or return trips). To violate this provision, there 
must be both a substantial number of late arrivals and the late arrivals 
in question must be significant in length. For example, a DOT Inspector 
General's (IG) report on one city's paratransit system disclosed that 
around 30 percent of trips were between one and five hours late. Such a 
situation would trigger this provision. On the other hand, only a few 
instances of trips one to five hours late, or many instances of trips a 
few minutes late, would not trigger this provision.
    The second example is substantial numbers of trip denials or missed 
trips. For example, if on a regular basis the reservation phone lines 
open at 5 a.m. and callers after 7 a.m. are all told that they cannot 
travel, or the phone lines shut down after 7 a.m. and a recorded message 
says to call back the next day, or the phone lines are always so busy 
that no one can get through, this provision would be triggered. 
(Practices of this kind would probably violate the response time 
criterion as well.) Also, if, on a regular basis, the entity misses a 
substantial number of trips (e.g., a trip is scheduled, the passenger is 
waiting, but the vehicle never comes, goes to the wrong address, is 
extremely late, etc.), it would violate this provision.
    The third example is substantial numbers of trips with excessive 
trip lengths. Since paratransit is a shared ride service, paratransit 
rides between Point A and Point B will usually take longer, and involve 
more intermediate stops, than a taxi ride between the same two points. 
However, when the number of intermediate stops and the total trip time 
for a given passenger grows so large as to make use of the system 
prohibitively inconvenient, then this provision would be triggered. For 
example, the IG report referred to above mentioned a situation in which 
9 percent of riders had one way trips averaging between two and four 
hours, with an average of 16 intermediate stops. Such a situation would 
probably trigger this provision.
    Though these three examples probably cover the most frequently cited 
problems in paratransit operations that directly or indirectly limit the 
provision of service that is theoretically available to eligible 
persons, the list is not exhaustive. Other patterns or practices could 
trigger this provision. For example, the Department has heard about a 
situation in which an entity's paratransit contractor was paid on a per-
trip basis, regardless of the length of the trip. The contractor 
therefore had an economic incentive

[[Page 514]]

to provide as many trips as possible. As a result, the contractor 
accepted short trips and routinely denied longer trips. This would be a 
pattern or practice contrary to this provision (and contrary to the 
service area provision as well).

                           Additional Service

    This provision emphasizes that entities may go beyond the 
requirements of this section in providing service to ADA paratransit 
individuals. For example, no one is precluded from offering service in a 
larger service area, during greater hours than the fixed route system, 
or without charge. However, costs of such additional service do not 
count with respect to undue financial burden waiver requests. Where a 
service criterion itself incorporates a range of actions the entity may 
take (e.g., providing wide corridors outside the urban core, using real 
time scheduling), however, costs of providing that optional service may 
be counted for undue financial burden waiver request purposes.

                   Section 37.133 Subscription Service

    As part of its paratransit service, an entity may include a 
subscription service component. However, at any given time of day, this 
component may not absorb more than 50 percent of available capacity on 
the total system. For example, if, at 8 a.m., the system can provide 400 
trips, no more than 200 of these can be subscription trips.
    The one exception to this rule would occur in a situation in which 
there is excess non-subscription capacity available. For example, if 
over a long enough period of time to establish a pattern, there were 
only 150 non-subscription trips requested at 8 a.m., the provider could 
begin to provide 250 subscription trips at that time. Subsequently, if 
non-subscription demand increased over a period of time, such that the 
50 trips were needed to satisfy a regular non-subscription demand at 
that time, and overall system capacity had not increased, the 50 trips 
would have to be returned to the non-subscription category. During times 
of high subscription demand, entities could use the trip time 
negotiation discretion of Sec.  37.131(c)(2) to shift some trips to 
other times.
    Because subscription service is a limited subcomponent of 
paratransit service, the rule permits restrictions to be imposed on its 
use that could not be imposed elsewhere. There may be a waiting list for 
provision of subscription service or the use of other capacity 
constraints. Also, there may be restrictions or priorities based on trip 
purpose. For example, subscription service under peak work trip times 
could be limited to work trips. We emphasize that these limitations 
apply only to subscription service. It is acceptable for a provider to 
put a person on a waiting list for access to subscription service at 8 
a.m. for work trips; the same person could not be wait-listed for access 
to paratransit service in general.

             Section 37.135 Submission of Paratransit Plans

    This section contains the general requirements concerning the 
submission of paratransit plans. Each public entity operating fixed 
route service is required to develop and submit a plan for paratransit 
service. Where you send your plans depends on the type of entity you 
are. There are two categories of entities which should submit their 
plans to states--(1) FTA recipients and (2) entities who are 
administered by the state on behalf of FTA.
    These FTA grantees submit their plans to the states because the 
agency would like the benefit of the states' expertise before final 
review. The states' role is as a commenter, not as a reviewer.
    This section also specifies annual progress reports concerning the 
meeting of previously approved milestones, any slippage (with the 
reasons for it and plans to catch up), and any significant changes in 
the operator's environment, such as the withdrawal from the marketplace 
of a private paratransit provider or whose service the entity has relied 
upon to provide part of its paratransit service.
    Paragraph (d) of this section specifies a maximum time period for 
the phase-in of the implementation of paratransit plans. The Department 
recognizes that it is not reasonable to expect paratransit systems to 
spring into existence fully formed, like Athena from the head of Zeus. 
Under this paragraph, all entities must be in full compliance with all 
paratransit provisions by January 26, 1997, unless the entity has 
received a waiver from FTA based on undue financial burden (which 
applies only to the service criteria of Sec.  37.131, not to eligibility 
requirements or other paratransit provisions).
    While the rule assumes that most entities will take a year to fully 
implement these provisions, longer than a year requires the paratransit 
plans to submit milestones that are susceptible to objective 
verification. Not all plans will be approved with a five-year lead-in 
period. Consistent with the proposed rule, the Department intends to 
look at each plan individually to see what is required for 
implementation in each case. DOT may approve only a shorter phase-in 
period in a given case.

               Section 37.137 Paratransit Plan Development

    Section 35.137 establishes three principal requirements in the 
development of paratransit plans.
    First is the requirement to survey existing paratransit services 
within the service area. This is required by section 223(c)(8) of the 
ADA. While the ADA falls short of explicitly

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requiring coordination, clearly this is one of the goals. The purpose of 
the survey is to determine what is being provided already, so that a 
transit provider can accurately assess what additional service is needed 
to meet the service criteria for comparable paratransit service. The 
plan does not have to discuss private paratransit providers whose 
services will not be used to help meet paratransit requirements under 
this rule. However, the public entity will need to know specifically 
what services are being provided by whom if the entity is to count the 
transportation toward the overall need.
    Since the public entity is required to provide paratransit to all 
ADA paratransit eligible individuals, there is some concern that 
currently provided service may be cut back or eliminated. It is possible 
that this may happen and such action would have a negative effect on 
transportation provided to persons with disabilities in general. The 
Department urges each entity required to submit a plan to work with 
current providers of transportation, not only to determine what 
transportation services they provide, but also to continue to provide 
service into the foreseeable future.
    Second, Sec.  37.137 specifies requirements for public 
participation. First, the entity must perform outreach, to ensure that a 
wide range of persons anticipated to use the paratransit service know 
about and have the opportunity to participate in the development of the 
plan. Not only must the entity identify who these individuals or groups 
are, the entity also must contact the people at an early stage in the 
development process.
    The other public participation requirements are straightforward. 
There must be a public hearing and an opportunity to comment. The 
hearing must be accessible to those with disabilities, and notice of the 
hearing must be accessible as well. There is a special efforts test 
identified in this paragraph for comments concerning a multi-year phase-
in of a paratransit plan.
    The final general requirement of the section specifies that efforts 
at public participation must be made permanent through some mechanism 
that provides for participation in all phases of paratransit plan 
development and submission. The Department is not requiring that there 
be an advisory committee established, although this is one method of 
institutionalizing participation. The Department is not as interested in 
the specific structure used to ensure public participation as we are 
interested in the effectiveness of the effort.
    The Department believes that public participation is a key element 
in the effective implementation of the ADA. The ADA is an opportunity to 
develop programs that will ensure the integration of all persons into 
not just the transportation system of America, but all of the 
opportunities transportation makes possible. This opportunity is not 
without tremendous challenges to the transit providers. It is only 
through dialogue, over the long term, that usable, possible plans can be 
developed and implemented.

                      Section 37.139 Plan Contents

    This section contains substantive categories of information to be 
contained in the paratransit plan: Information on current and changing 
fixed route service; inventory of existing paratransit service; 
discussion of the discrepancies between existing paratransit and what is 
required under this regulation; a discussion of the public participation 
requirements and how they have been met; the plan for paratransit 
service; the budget for paratransit services; efforts to coordinate with 
other transportation providers; a description of the process in place or 
to be used to register ADA paratransit eligible individuals; a 
description of the documentation provided to each individual verifying 
eligibility; and a request for a waiver based on undue financial burden, 
if applicable. The final rule contains a reorganized and slightly 
expanded section on plan contents, reflecting requests to be more 
explicit, rather than less explicit.
    The list of required elements is the same for all entities required 
to submit paratransit plans. There is no document length requirement, 
however. Each entity (or group plan) is unique and we expect the plans 
to reflect this. While we would like the plan elements presented in the 
order listed in this section, the contents most likely will vary 
greatly, depending on the size, geographic area, budget, complexity of 
issues, etc. of the particular submitting agency.
    This section and Sec.  37.139 provide for a maximum phase-in period 
of five years, with an assumed one-year phase-in for all paratransit 
programs. (The required budget has been changed to five years as well.) 
The Department has established a maximum five-year phase-in in the 
belief that not all systems will require that long, but that some, 
particularly those which had chosen to meet compliance with section 504 
requirements with accessible fixed route service, may indeed need five 
years.
    We are confident that, through the public participation process, 
entities can develop a realistic plan for full compliance with the ADA. 
To help ensure this, the paratransit plan contents section now requires 
that any plan which projects full compliance after January 26, 1993 must 
include milestones which can be measured and which result in steady 
progress toward full compliance. For example, it is possible that the 
first part of year one is used to ensure comprehensive registration of 
all eligible persons with disabilities, training of transit provider 
staffs and the development and dissemination of information to users and 
potential users in

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accessible formats and some modest increase in paratransit service is 
provided. A plan would not be permitted to indicate that no activity was 
possible in the first year, but proportionately more progress could be 
planned for later years than for the first year. Implementation must 
begin in January 1992.
    Each plan, including its proposed phase-in period, will be the 
subject of examination by FTA. Not all providers who request a five-year 
phase-in will receive approval for a five-year phase-in. The plan must 
be careful, therefore, to explain what current services are, what the 
projections are, and what methods are in place to determine and provide 
accountability for progress toward full compliance.
    We have been asked for assistance in assessing what the demand for 
paratransit service will be. FTA's ADA Paratransit Manual provides 
detailed assistance in this and many other areas of the plan development 
process.
    The ADA itself contained a figure of 43 million persons with 
disabilities. It should be pointed out that many of these may not 
necessarily be eligible for ADA paratransit service. The Department's 
regulatory impact analysis discussing the probable costs involved in 
implementing this rule places the possible percentage of population who 
would be eligible for paratransit service at between 1.4 and 1.9 
percent. This figure can vary depending on the type and variety of 
services you have available, or on such things as climate, proximity to 
medical care, family, etc. that a person with a disability may need. 
Clearly estimating demand is one of the most critical elements in the 
plan, since it will be used to make decisions about all of the various 
service criteria.
    Section 37.139 contains a new paragraph (j), spelling out in more 
detail requirements related to the annual submission of plans. Since 
there is now the possibility for five-year phase-ins, the annual plan 
demonstrates the progress made to date, and explains any delays.

        Section 37.141 Requirements If a Joint Plan is Submitted

    The Department believes that, particularly in large, multi-provider 
regions, a coordinated regional paratransit plan and system are 
extremely important. Such coordination can do much to ensure that the 
most comprehensive transportation can be provided with the most 
efficient use of available resources. We recognize that the effort of 
putting together such a coordinated system can be a lengthy one. This 
section is intended to facilitate the process of forming such a 
coordinated system.
    If a number of entities wish to submit a joint plan for a 
coordinated system, they must, like other entities, submit a document by 
January 26, 1992. At a minimum, this document must include the 
following:
    (1) A general statement that the participating entities intend to 
file a joint coordinated plan;
    (2) A certification from each participating entity that it is 
committed to providing paratransit as a part of a coordinated plan;
    (3) A certification from each participating entity that it will 
maintain at least current levels of paratransit service until the 
coordinated paratransit service called for by the joint plan is 
implemented;
    (4) As many elements of the plan as possible.
    These provisions ensure that significant planning will precede, and 
plan implementation will begin by, January 26, 1992, without precluding 
entities from cooperating because it was not possible to complete 
coordinating different public entities by that date. The entities 
involved in a joint plan are required to submit all elements of their 
plan by July 26, 1992.
    The final provision in the section notes that an entity may later 
join a coordinated plan, even if it has filed its own plan on January 
26, 1992. An entity must submit its own plan by January 26, 1992, if it 
has not provided a certification of participation in a joint plan.). In 
this case, the entity must provide the assurances and certifications 
required of all of the other participating entities.
    The Department fully expects that many jurisdictions filing joint 
plans will be able to do so by January 26, 1992. For those who cannot, 
the regulatory provision ensures that there will be no decrease in 
paratransit service. Further, since we anticipate coordinated service 
areas to provide more effective service, complete implementation of a 
joint plan could be more rapid than if each entity was providing service 
on its own.
    Entities submitting a joint plan do not have any longer than any 
other entities to fully implement complementary paratransit service. In 
any case, all plans (joint or single) must be fully implemented by 
January 26, 1997, absent a waiver for undue financial burden (which 
would, in the case of a joint plan, be considered on a joint basis).

             Section 37.143 Paratransit Plan Implementation

    As already discussed under Sec.  37.135, the states will receive FTA 
recipient plans for recipients of funding under 49 U.S.C. 5311 
administered by the State or any small urbanized area recipient of funds 
under 49 U.S.C. 5307 administered by a state. Public entities who do not 
receive FTA funds will submit their plans directly to the applicable 
Regional Office (listed in appendix B to the rule).
    The role of the state is to accept the plans on behalf of FTA, to 
ensure that all plans are

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submitted to it and forward the plans, with any comments on the plans, 
to FTA. This comment is very important for FTA to receive, since states 
administer these programs on behalf of FTA. Each state's specific 
knowledge of FTA grantees it administers will provide helpful 
information to FTA in making its decisions.
    The rule lists five questions the states must answer when they 
forward the plans. These questions are gauged to capitalize on the 
working knowledge the states possess on the grantees. FTA will send a 
more specific letter of instruction to each state explaining its role.

                   Section 37.147 FTA Review of Plans

    This provision spells out factors FTA will consider in reviewing 
each plan, including whether the submission is complete, whether the 
plan complies with the substance of the ADA regulation, whether the 
entity complied with the public participation requirements in developing 
the plan, efforts by the entity to coordinate with other entities in a 
plan submission, and any comments submitted by the states.
    These elements are not the only items that will be reviewed by FTA. 
Every portion of the plan will be reviewed and assessed for compliance 
with the regulation. This section merely highlights those provisions 
thought most important by the Department.

            Section 37.151 Waiver for Undue Financial Burden

    The Department has adopted a five-year phase-in for paratransit 
service. Under this scheme, each entity required to provide paratransit 
service will be able to design a phase-in of its service specifically 
geared to local circumstances. While all jurisdictions will not receive 
approval for plans with a five year phase-in, each entity will be able 
to request what it needs based on local circumstances. Generally, the 
section allows an entity to request a wavier at any time it determines 
that it will not be able to meet a five-year phase-in or make measured 
progress toward its full compliance date specified in its original plan.
    A waiver for undue financial burden should be requested if one of 
the following circumstances applies. First, when the entity submits its 
first plan on January 26, 1992, if the entity knows it will not be able 
to reach full compliance within five years, or if the entity cannot make 
measured progress the first year it may submit a waiver request. The 
entity also should apply for a waiver, if, during plan implementation, 
there are changed circumstances which make it unlikely that compliance 
will be possible.
    The concept of measured progress should be given its plain meaning. 
It is not acceptable to submit a plan which shows significant progress 
in implementing a plan in years four and five, but no progress in years 
one and two. Similarly, the progress must be susceptible to objective 
verification. An entity cannot merely ``work toward'' developing a 
particular aspect of a plan.
    The Department intends that undue burden waiver requests will be 
given close scrutiny, and waiver will not be granted highly. In 
reviewing requests, however, as the legislative history indicates, FTA 
will look at the individual financial constraints within which each 
public entity operates its fixed route system. ``Any determination of 
undue financial burden cannot have assumed the collection of additional 
revenues, such as those received through increases in local taxes or 
legislative appropriations, which would not have otherwise been made 
available to the fixed route operator.'' (H. Rept. 101-485, Pt. 1, at 
31)

                 Section 37.153 FTA Waiver Determination

    If the FTA Administrator grants a waiver for undue financial burden, 
the waiver will be for a specified period of time and the Administrator 
will determine what the entity must do to meet its responsibilities 
under the ADA. Each determination will involve a judgment of what is 
appropriate on a case-by-case basis. Since each waiver will be granted 
based on individual circumstances, the Department does not deem it 
appropriate to specify a generally applicable duration for a waiver.
    When a waiver is granted, the rule calls for entities to look first 
at limiting the number of trips provided to each individual as a means 
of providing service that does not create an undue burden. This capacity 
constraint, unlike manipulations of other service criteria, will not 
result in a degradation of the quality of service. An entity intending 
to submit an undue burden waiver request should take this approach into 
account in its planning process.
    It should be noted that requiring an entity to provide paratransit 
service at least during core hours along key routes is one option that 
the Administrator has available in making a decision about the service 
to be provided. This requirement stems from the statutory provision that 
the Administrator can require the entity to provide a minimum level of 
service, even if to do so would be an undue financial burden. Certainly 
part of a request for a waiver could be a locally endorsed alternative 
to this description of basic service. The rule states explicitly the 
Administrator's discretion to return the application for more 
information if necessary.

 Section 37.155 Factors in Decision To Grant an Undue Financial Burden 
                                 Waiver

    Factors the Administrator will consider in making a decision whether 
to grant an

[[Page 518]]

undue financial burden waiver request include effects on current fixed 
route service, reductions in other services, increases in fares, 
resources available to implement complementary paratransit over the 
period of the plan, current level of accessible service (fixed route and 
paratransit), cooperation among transit providers, evidence of increased 
efficiencies that have been or could be used, any unique circumstances 
that may affect the entity's ability to provide paratransit service, the 
level of per capita service being provided, both to the population as a 
whole and what is being or anticipated to be provided to persons who are 
eligible and registered to receive ADA paratransit service.
    This final element allows some measure of comparability, regardless 
of the specific service criteria and should assist in a general 
assessment of level of effort.
    It is only the costs associated with providing paratransit service 
to ADA-paratransit eligible persons that can be counted in assessing 
whether or not there is an undue financial burden. Two cost factors are 
included in the considerations which enhance the Administrator's ability 
to assess real commitment to these paratransit provisions.
    First, the Department will allow a statistically valid methodology 
for estimating number of trips mandated by the ADA. While the regulation 
calls for a trip-by-trip determination of eligibility, this provision 
recognizes that this is not possible for some systems, particularly the 
large systems. Since only those trips provided to a person when he or 
she is ADA eligible may be counted in determining an undue financial 
burden, this provision is necessary.
    Second, in determining costs to be counted toward providing 
paratransit service, paragraph (b)(3) allows an entity to include in its 
paratransit budget dollars to which it is legally entitled, but which, 
as a matter of state or local funding arrangements, are provided to 
another entity that is actually providing the paratransit service.
    For example, a state government may provide a certain formula 
allocation of the revenue from a certain tax to each jurisdiction for 
use in providing transportation service at the local level. The funds, 
depending on local arrangements, may flow either to a transit 
authority--a regulated entity under this rule--or to a city or county 
government. If the funds go to the transit authority, they clearly may 
be counted in an undue burden calculation. In addition, however, this 
provision also allows funds that flow through the city or county 
government to be counted in the undue burden calculation, since they are 
basically the same funds and should not be treated differently based on 
the accident of previously-determined local arrangements. On the other 
hand, this provision does not allow funds of a private non-profit or 
other organization who uses Department of Health and Human Services 
grant or private contributions to be counted toward the entity's 
financial commitment to paratransit.

                     Subpart G--Provision of Service

       Section 37.161 Maintenance of Accessible Features--General

    This section applies to all entities providing transportation 
services, public and private. It requires those entities to maintain in 
operative condition those features or facilities and equipment that make 
facilities and vehicles accessible to and usable by individuals with 
disabilities.
    The ADA requires that, to the maximum extent feasible, facilities be 
accessible to and usable by individuals with disabilities. This section 
recognizes that it is not sufficient to provide features such as lift-
equipped vehicles, elevators, communications systems to provide 
information to people with vision or hearing impairments, etc. if these 
features are not maintained in a manner that enables individuals with 
disabilities to use them. Inoperative lifts or elevators, locked 
accessible doors, accessible paths of travel that are blocked by 
equipment or boxes of materials are not accessible to or usable by 
individuals with disabilities.
    The rule points out that temporary obstructions or isolated 
instances of mechanical failure would not be considered violations of 
the ADA or this rule. Repairs must be made ``promptly.'' The rule does 
not, and probably could not, state a time limit for making particular 
repairs, given the variety of circumstances involved. However, repairing 
accessible features must be made a high priority. Allowing obstructions 
or out of order accessibility equipment to persist beyond a reasonable 
period of time would violate this Part, as would mechanical failures due 
to improper or inadequate maintenance. Failure of the entity to ensure 
that accessible routes are free of obstruction and properly maintained, 
or failure to arrange prompt repair of inoperative elevators, lifts, or 
other accessibility-related equipment, would also violate this part.
    The rule also requires that accommodations be made to individuals 
with disabilities who would otherwise use an inoperative accessibility 
feature. For example, when a rail system discovers that an elevator is 
out of order, blocking access to one of its stations, it could 
accommodate users of the station by announcing the problem at other 
stations to alert passengers and offer accessible shuttle bus service 
around the temporarily inaccessible station. If a public address system 
were out of order, the entity could designate personnel to provide 
information to customers with visual impairments.

[[Page 519]]

  Section 37.163 Keeping Vehicle Lifts in Operative Condition--Public 
                                Entities

    This section applies only to public entities. Of course, like 
vehicle acquisition requirements and other provisions applying to public 
entities, these requirements also apply when private entities ``stand in 
the shoes'' of public entities in contracting situations, as provided in 
Sec.  37.23.
    This section's first requirement is that the entity establish a 
system of regular and frequent maintenance checks of lifts sufficient to 
determine if they are operative.
    Vehicle and equipment maintenance is an important component of 
successful accessible service. In particular, an aggressive preventive 
maintenance program for lifts is essential. Lifts remain rather delicate 
pieces of machinery, with many moving parts, which often must operate in 
a harsh environment of potholes, dust and gravel, variations in 
temperature, snow, slush, and deicing compounds. It is not surprising 
that they sometimes break down.
    The point of a preventive maintenance program is to prevent 
breakdowns, of course. But it is also important to catch broken lifts as 
soon as possible, so that they can be repaired promptly. Especially in a 
bus system with relatively low lift usage, it is possible that a vehicle 
could go for a number of days without carrying a passenger who uses the 
lift. It is highly undesirable for the next passenger who needs a lift 
to be the person who discovers that the lift is broken, when a 
maintenance check by the operator could have discovered the problem days 
earlier, resulting in its repair.
    Therefore, the entity must have a system for regular and frequent 
checks, sufficient to determine if lifts are actually operative. This is 
not a requirement for the lift daily. (Indeed, it is not, as such, a 
requirement for lift cycling at all. If there is another means available 
of checking the lift, it may be used.) If alternate day checks, for 
example, are sufficient to determine that lifts are actually working, 
then they are permitted. If a lift is used in service on a given day, 
that may be sufficient to determine that the lift is operative with 
respect to the next day. It would be a violation of this part, however, 
for the entity to neglect to check lifts regularly and frequently, or to 
exhibit a pattern of lift breakdowns in service resulting in stranded 
passengers when the lifts had not been checked before the vehicle failed 
to provide required accessibility to passengers that day.
    When a lift breaks down in service, the driver must let the entity 
know about the problem by the most immediate means available. If the 
vehicle is equipped with a radio or telephone, the driver must call in 
the problem on the spot. If not, then the driver would have to make a 
phone call at the first opportunity (e.g., from a phone booth during the 
turnaround time at the end of the run). It is not sufficient to wait 
until the end of the day and report the problem when the vehicle returns 
to the barn.
    When a lift is discovered to be inoperative, either because of an 
in-service failure or as the result of a maintenance check, the entity 
must take the vehicle out of service before the beginning of its next 
service day (with the exception discussed below) and repair the lift 
before the vehicle is put back into service. In the case of an in-
service failure, this means that the vehicle can continue its runs on 
that day, but cannot start a new service day before the lift is 
repaired. If a maintenance check in the evening after completion of a 
day's run or in the morning before a day's runs discloses the problem, 
then the bus would not go into service until the repair had taken place.
    The Department realizes that, in the years before bus fleets are 
completely accessible, taking buses with lifts out of service for 
repairs in this way would probably result in an inaccessible spare bus 
being used on the route, but at least attention would have to be paid 
quickly to the lift repair, resulting in a quicker return to service of 
a working accessible bus.
    The rule provides an exception for those situations in which there 
is no spare vehicle (either accessible or inaccessible) available to 
take the place of the vehicle with an operative lift, such that putting 
the latter vehicle into the shop would result in a reduction of service 
to the public (e.g., a scheduled run on a route could not be made). The 
Department would emphasize that the exception does not apply when there 
is any spare vehicle available.
    Where the exception does apply, the provider may keep the vehicle 
with the inoperative lift in service for a maximum of three days (for 
providers operating in an area of over 50,000 population) or five days 
(for providers operating in an area of 50,000 population or less). After 
these times have elapsed, the vehicle must go into the shop, not to 
return until the lift is repaired. Even during the three- or five-day 
period, if an accessible spare bus becomes available at any time, it 
must be used in place of the bus with the inoperative lift or an 
inaccessible spare that is being used in its place.
    In a fixed route system, if a bus is operating without a working 
lift (either on the day when the lift fails in service or as the result 
of the exception discussed above) and headways between accessible buses 
on the route on which the vehicle is operating exceed 30 minutes, the 
entity must accommodate passengers who would otherwise be inconvenienced 
by the lack of an accessible bus. This accommodation would be by a 
paratransit or other special vehicle that would pick up passengers with 
disabilities

[[Page 520]]

who cannot use the regular bus because its lift is inoperative. 
Passengers who need lifts in this situation would, in effect, be ADA 
paratransit eligible under the second eligibility category. However, 
since they would have no way of knowing that the bus they sought to 
catch would not be accessible that day, the transit authority must 
actively provide alternative service to them. This could be done, for 
example, by having a ``shadow'' accessible service available along the 
route or having the bus driver call in the minute he saw an accessible 
passenger he could not pick up (including the original passenger 
stranded by an in-service lift failure), with a short (i.e., less than 
30-minute) response from an accessible vehicle dispatched to pick up the 
stranded passenger. To minimize problems in providing such service, when 
a transit authority is using the ``no spare vehicles'' exception, the 
entity could place the vehicle with the inoperative lift on a route with 
headways between accessible buses shorter than 30 minutes.

                 Section 37.165 Lift and Securement Use

    This provision applies to both public and private entities.
    All people using wheelchairs, as defined in the rule, and other 
powered mobility devices, under the circumstances provided in the rule, 
are to be allowed to ride the entity's vehicles.
    Entities may require wheelchair users to ride in designated 
securement locations. That is, the entity is not required to carry 
wheelchair users whose wheelchairs would have to park in an aisle or 
other location where they could obstruct other persons' passage or where 
they could not be secured or restrained. An entity's vehicle is not 
required to pick up a wheelchair user when the securement locations are 
full, just as the vehicle may pass by other passengers waiting at the 
stop if the bus is full.
    The entity may require that wheelchair users make use of securement 
systems for their mobility devices. The entity, in other words, can 
require wheelchair users to ``buckle up'' their mobility devices. The 
entity is required, on a vehicle meeting part 38 standards, to use the 
securement system to secure wheelchairs as provided in that part. On 
other vehicles (e.g., existing vehicles with securement systems which do 
not comply with part 38 standards), the entity must provide and use a 
securement system to ensure that the mobility device remains within the 
securement area. This latter requirement is a mandate to use best 
efforts to restrain or confine the wheelchair to the securement area. 
The entity does the best it can, given its securement technology and the 
nature of the wheelchair. The Department encourages entities with 
relatively less adequate securement systems on their vehicles, where 
feasible, to retrofit the vehicles with better securement systems, that 
can successfully restrain a wide variety of wheelchairs. It is our 
understanding that the cost of doing so is not enormous.
    An entity may not, in any case, deny transportation to a wheelchair 
and its user because the wheelchair cannot be secured or restrained by a 
vehicle's securement system, to the entity's satisfaction. The same 
point applies to an OPMD and its user, subject to legitimate safety 
requirements.
    Entities have often recommended or required that a wheelchair user 
transfer out of his or her own device into a vehicle seat. Under this 
rule, it is no longer permissible to require such a transfer. The entity 
may provide information on risks and make a recommendation with respect 
to transfer, but the final decision on whether to transfer is up to the 
passenger.
    The entity's personnel have an obligation to ensure that a passenger 
with a disability is able to take advantage of the accessibility and 
safety features on vehicles. Consequently, the driver or other personnel 
must provide assistance with the use of lifts, ramps, and securement 
devices. For example, the driver must deploy the lift properly and 
safely. If the passenger cannot do so independently, the driver must 
assist the passenger with using the securement device. On a vehicle 
which uses a ramp for entry, the driver may have to assist in pushing a 
manual wheelchair up the ramp (particularly where the ramp slope is 
relatively steep). All these actions may involve a driver leaving his 
seat. Even in entities whose drivers traditionally do not leave their 
seats (e.g., because of labor-management agreements or company rules), 
this assistance must be provided. This rule overrides any requirements 
to the contrary.
    Wheelchair users, especially those using electric wheelchairs, often 
have a preference for entering a lift platform and vehicle in a 
particular direction (e.g., backing on or going on frontwards). Except 
where the only way of successfully maneuvering a device onto a vehicle 
or into its securement area or an overriding safety concern (i.e., a 
direct threat) requires one way of doing this or another, the transit 
provider should respect the passenger's preference. We note that most 
electric wheelchairs are usually not equipped with rearview mirrors, and 
that many persons who use them are not able to rotate their heads 
sufficiently to see behind. People using canes or walkers and other 
standees with disabilities who do not use wheelchairs but have 
difficulty using steps (e.g., an elderly person who can walk on a level 
surface without use of a mobility aid but cannot raise his or her legs 
sufficiently to climb bus steps) must also be permitted to use the lift, 
on request.
    A lift conforming to Access Board requirements has a platform 
measuring at least 30

[[Page 521]]

x 48, with a design load of at least 600 pounds (i.e., 
capable of lifting a wheelchair/occupant combination of up to 600 
pounds). Working parts upon which the lift depends for support of the 
load, such as cables, pulleys, and shafts, must have a safety factor of 
at least six times the design load; nonworking parts such as the 
platform, frame, and attachment hardware, which would not be expected to 
wear, must have a safety factor of at least three times the design load.
    If a transportation provider has a vehicle and equipment that meets 
or exceeds standards based on Access Board guidelines, and the vehicle 
and equipment can in fact safely accommodate a given wheelchair, then it 
is not appropriate, under disability nondiscrimination law, for the 
transportation provider to refuse to transport the device and its user. 
Transportation providers must carry a wheelchair and its user, as long 
as the lift can accommodate the size and weight of the wheelchair and 
its user and there is space for the wheelchair on the vehicle. However, 
if in fact a lift or vehicle is unable to accommodate the wheelchair and 
its user, the transportation provider is not required to carry it.
    For example, suppose that a bus or paratransit vehicle lift will 
safely accommodate an 800-pound wheelchair/passenger combination, but 
not a combination exceeding 800 pounds (i.e., a design load of 800 
lbs.). The lift is one that exceeds the part 38 design standard, which 
requires lifts to be able to accommodate a 600-pound wheelchair/
passenger combination. The transportation provider could limit use of 
that lift to a combination of 800 pounds or less. Likewise, if a 
wheelchair or its attachments extends beyond the 30 x 48 inch footprint 
found in part 38's design standards but fits onto the lift and into the 
wheelchair securement area of the vehicle, the transportation provider 
would have to accommodate the wheelchair. However, if such a wheelchair 
was of a size that would block an aisle and interfere with the safe 
evacuation of passengers in an emergency, the operator could deny 
carriage of that wheelchair based on a legitimate safety requirement.

                Section 37.167 Other Service Requirements

    The requirements in this section apply to both public and private 
entities.
    On fixed route systems, the entity must announce stops. These stops 
include transfer points with other fixed routes. This means that any 
time a vehicle is to stop where a passenger can get off and transfer to 
another bus or rail line (or to another form of transportation, such as 
commuter rail or ferry), the stop would be announced. The announcement 
can be made personally by the vehicle operator or can be made by a 
recording system. If the vehicle is small enough so that the operator 
can make himself or herself heard without a P.A. system, it is not 
necessary to use the system.
    Announcements also must be made at major intersections or 
destination points. The rule does not define what major intersections or 
destination points are. This is a judgmental matter best left to the 
local planning process. In addition, the entity must make announcements 
at sufficient intervals along a route to orient a visually impaired 
passenger to his or her location. The other required announcements may 
serve this function in many instances, but if there is a long distance 
between other announcements, fill-in orientation announcements would be 
called for. The entity must announce any stop requested by a passenger 
with a disability, even if it does not meet any of the other criteria 
for announcement.
    When vehicles from more than one route serve a given stop or 
station, the entity must provide a means to assist an individual with a 
visual impairment or other disability in determining which is the proper 
vehicle to enter. Some entities have used external speakers. FTA is 
undertaking a study to determine what is the best available technology 
in this area. Some transit properties have used colored mitts, or 
numbered cards, to allow passengers to inform drivers of what route they 
wanted to use. The idea is to prevent, at a stop where vehicles from a 
number of routes arrive, a person with a visual impairment from having 
to ask every driver whether the bus is the right one. The rule does not 
prescribe what means is to be used, only that some effective means be 
provided.
    Service animals shall always be permitted to accompany their users 
in any private or public transportation vehicle or facility. One of the 
most common misunderstandings about service animals is that they are 
limited to being guide dogs for persons with visual impairments. Dogs 
are trained to assist people with a wide variety of disabilities, 
including individuals with hearing and mobility impairments. Other 
animals (e.g., monkeys) are sometimes used as service animals as well. 
In any of these situations, the entity must permit the service animal to 
accompany its user.
    Part 38 requires a variety of accessibility equipment. This section 
requires that the entity use the equipment it has. For example, it would 
be contrary to this provision for a transit authority to bolt its bus 
lifts shut because transit authority had difficulty maintaining the 
lifts. It does little good to have a public address system on a vehicle 
if the operator does not use it to make announcements (except, as noted 
above, in the situation where the driver can make himself or herself 
heard without recourse to amplification.)
    Entities must make communications and information available, using 
accessible formats and technology (e.g., Braille, large

[[Page 522]]

print, TDDs) to obtain information about transportation services. 
Someone cannot adequately use the bus system if schedule and route 
information is not available in a form he or she can use. If there is 
only one phone line on which ADA paratransit eligible individuals can 
reserve trips, and the line is chronically busy, individuals cannot 
schedule service. Such obstacles to the use of transportation service 
are contrary to this section. (The latter could, in some circumstances, 
be viewed as a capacity constraint.)
    It is inconsistent with this section for a transit provider to 
refuse to let a passenger use a lift at any designated stop, unless the 
lift is physically unable to deploy or the lift would be damaged if it 
did deploy (see discussion under Sec.  37.123). In addition, if a 
temporary situation at the stop (e.g., construction, an accident, a 
landslide) made the stop unsafe for anyone to use, the provider could 
decline to operate the lift there (just as it refused to open the door 
for other passengers at the same point). The provider could not, 
however, declare a stop ``off limits'' to persons with disabilities that 
is used for other persons. If the transit authority has concerns about 
barriers or safety hazards that peculiarly affect individuals with 
disabilities that would use the stop, it should consider making efforts 
to move the stop.
    Under DOT hazardous materials rules, a passenger may bring a 
portable medical oxygen supply on board a vehicle. Since the hazardous 
materials rules permit this, transit providers cannot prohibit it. For 
further information on hazardous materials rules, as they may affect 
transportation of assistive devices, entities may contact the 
Department's Research and Special Programs Administration, Office of 
Hazardous Materials Transportation (202-366-0656).
    One concern that has been expressed is that transportation systems 
(particularly some rail systems) may make it difficult for persons with 
disabilities to board or disembark from vehicles by very rapidly closing 
doors on the vehicles before individuals with disabilities (who may move 
more slowly through crowds in the vehicle or platform than other 
persons) have a chance to get on or off the vehicle. Doing so is 
contrary to the rule; operators must make appropriate provision to give 
individuals with disabilities adequate time to board or disembark.

   Section 37.169 Interim Requirements for Over-the-Road Bus Service 
                      Operated by Private Entities

    Private over-the-road bus (OTRB) service is, first of all, subject 
to all the other private entity requirements of the rule. The 
requirements of this section are in addition to the other applicable 
provisions.
    Boarding assistance is required. The Department cannot require any 
particular boarding assistance devices at this time. Each operator may 
decide what mode of boarding assistance is appropriate for its 
operation. We agree with the discussion in the DOJ Title II rule's 
preamble that carrying is a disfavored method of providing assistance to 
an individual with a disability. However, since accessible private OTRBs 
cannot be required by this rule, there may be times when carrying is the 
only available means of providing access to an OTRB, if the entity does 
not exercise its discretion to provide an alternative means. It is 
required by the rule that any employee who provides boarding 
assistance--above all, who may carry or otherwise directly physically 
assist a passenger--must be trained to provide this assistance 
appropriately and safely.
    The baggage priority provision for wheelchairs and other assistive 
devices involves a similar procedure to that established in the 
Department's Air Carrier Access Act rule (14 CFR part 382). In brief, it 
provides that, at any given stop, a person with a wheelchair or other 
assistive device would have the device loaded before other items at this 
stop. An individual traveling with a wheelchair is not similarly 
situated to a person traveling with luggage. For the wheelchair user, 
the wheelchair is an essential mobility device, without which travel is 
impossible. The rationale of this provision is that, while no one wants 
his or her items left behind, carrying the wheelchair is more important 
to its user than ordinary luggage to a traveler. If it comes to an 
either/or choice (the wheelchair user's luggage would not have any 
priority over other luggage, however). There would be no requirement, 
under this provision, for ``bumping'' baggage already on the bus from 
previous stops in order to make room for the wheelchair.
    The entity could require advance notice from a passenger in only one 
circumstance. If a passenger needed boarding assistance, the entity 
could require up to 48 hours' advance notice for the purpose of 
providing needed assistance. While advance notice requirements are 
generally undesirable, this appears to be a case in which a needed 
accommodation may be able to be provided successfully only if the 
transportation provider knows in advance that some extra staffing is 
needed to accomplish it. While the primary need for advance notice 
appears to be in the situation of an unstaffed station, there could be 
other situations in which advance notice was needed in order to ensure 
that the accommodation could be made. Entities should not ask for 
advance notice in all cases, but just in those cases in which it is 
really needed for this purpose. Even if advance notice is not provided, 
the entity has the obligation to provide boarding assistance if it can 
be provided with available staff.

[[Page 523]]

  Section 37.171 Equivalency Requirement for Demand Responsive Service 
     Operated by Private Entities Not Primarily in the Business of 
                           Transporting People

    This provision is a service requirement closely related to the 
private entity requirements for Sec. Sec.  37.101-37.105 of this part. 
Entities in this category are always required to provide equivalent 
service, regardless of what they are doing with respect to the 
acquisition of vehicles. The effect of this provision may be to require 
some entities to arrange, either through acquiring their own accessible 
vehicles or coordinating with other providers, to have accessible 
vehicles available to meet the equivalency standards of Sec.  37.105 or 
otherwise to comply with those standards.

                         Section 37.173 Training

    A well-trained workforce is essential in ensuring that the 
accessibility-related equipment and accommodations required by the ADA 
actually result in the delivery of good transportation service to 
individuals with disabilities. The utility of training was recognized by 
Congress as well. (See S. Rept. 100-116 at 48.) At the same time, we 
believe that training should be conducted in an efficient and effective 
manner, with appropriate flexibility allowed to the organizations that 
must carry it out. Each transportation provider is to design a training 
program which suits the needs of its particular operation. While we are 
confident of this approach, we are mindful that the apparent lack of 
training has been a source of complaint to FTA and transit providers. 
Good training is difficult and it is essential.
    Several points of this section deserve emphasis. First, the 
requirements for training apply to private as well as to public 
providers, of demand responsive as well as of fixed route service. 
Training is just as necessary for the driver of a taxicab, a hotel 
shuttle, or a tour bus as it is for a driver in an FTA-funded city bus 
system.
    Second, training must be to proficiency. The Department is not 
requiring a specific course of training or the submission of a training 
plan for DOT approval. However, every employee of a transportation 
provider who is involved with service to persons with disabilities must 
have been trained so that he or she knows what needs to be done to 
provide the service in the right way. When it comes to providing service 
to individuals with disabilities, ignorance is no excuse for failure.
    While there is no specific requirement for recurrent or refresher 
training, there is an obligation to ensure that, at any given time, 
employees are trained to proficiency. An employee who has forgotten what 
he was told in past training sessions, so that he or she does not know 
what needs to be done to serve individuals with disabilities, does not 
meet the standard of being trained to proficiency.
    Third, training must be appropriate to the duties of each employee. 
A paratransit dispatcher probably must know how to use a TDD and enough 
about various disabilities to know what sort of vehicle to dispatch. A 
bus driver must know how to operate lifts and securement devices 
properly. A mechanic who works on lifts must know how to maintain them. 
Cross-training, while useful in some instances, is not required, so long 
as each employee is trained to proficiency in what he or she does with 
respect to service to individuals with disabilities.
    Fourth, the training requirement goes both to technical tasks and 
human relations. Employees obviously need to know how to run equipment 
the right way. If an employee will be assisting wheelchair users in 
transferring from a wheelchair to a vehicle seat, the employee needs 
training in how to do this safely. But every public contact employee 
also has to understand the necessity of treating individuals with 
disabilities courteously and respectfully, and the details of what that 
involves.
    One of the best sources of information on how best to train 
personnel to interact appropriately with individuals with disabilities 
is the disability community itself. Consequently, the Department urges 
entities to consult with disability organizations concerning how to 
train their personnel. Involving these groups in the process of 
establishing training programs, in addition to providing useful 
information, should help to establish or improve working relationships 
among transit providers and disability groups that, necessarily, will be 
of long duration. We note that several transit providers use persons 
with disabilities to provide the actual training. Others have reported 
that role playing is an effective method to instill an appreciation of 
the particular perspective of one traveling with a disability.
    Finally, one of the important points in training concerns 
differences among individuals with disabilities. All individuals with 
disabilities, of course, are not alike. The appropriate ways one deals 
with persons with various kinds of disabilities (e.g., mobility, vision, 
hearing, or mental impairments) are likely to differ and, while no one 
expects bus drivers to be trained as disability specialists, recognizing 
relevant differences and responding to them appropriately is extremely 
significant. Public entities who contract with private entities to have 
service provided--above all, complementary paratransit--are responsible 
for ensuring that contractor personnel receive the appropriate training.

[[Page 524]]

     Appendix A to Part 37--Standards for Accessible Transportation 
                               Facilities

    Sections 504(a) and (b) of the Americans with Disabilities Act (ADA) 
require the Access Board to adopt accessibility guidelines; sections 
204(c) and 306(c) of the ADA require the Department of Transportation to 
adopt regulatory standards ``consistent with the minimum guidelines and 
requirements'' issued by the Access Board. In the original 1991 
publication of part 37, the Department complied with this requirement by 
reproducing the Access Board's Americans with Disabilities Act 
Accessibility Guidelines (ADAAG) in their entirety as Appendix A.
    The Access Board revised ADAAG in July 2004. ADAAG, including 
technical amendments issued in July 2005, is codified in Appendices B 
and D to 36 CFR part 1191. In order to avoid duplication of material 
that the Access Board has already included in the CFR, and which is now 
readily available on the Internet, the Department has adopted ADAAG by 
cross-reference in part 37, rather than reproducing the lengthy Access 
Board publication. However, there are certain provisions of ADAAG that 
the Department is modifying for clarity or to preserve requirements that 
have been in effect under the existing standards. Under the ADA, the 
Department, in adopting standards, has the discretion to depart from the 
language of ADAAG as long as the Department's standards remain 
consistent with the Access Board's minimum guidelines. In addition, this 
appendix provides additional guidance concerning some sections of the 
DOT standards as they apply to transportation facilities.

                              Section 201.1

    The basic scoping requirement requires all areas of newly designed 
and newly constructed buildings and facilities to be accessible. Former 
Sec.  4.1.1(5) provided a ``structural impracticability'' exception to 
the requirements for new buildings and facilities. The Access Board 
deleted this exception to avoid duplication with an existing requirement 
to the same effect in Department of Justice regulations (see 28 CFR 
Sec.  36.401(c)). For consistency with the approach taken by the Access 
Board and Department of Justice, and to ensure consistency between 
facilities subject to Titles II and III of the ADA under part 37, the 
Department has added the language of the Department of Justice 
regulation to Sec.  37.41 of this part.

                              Section 206.3

    This section concerns the location of accessible paths. The 
Department is retaining language from former Sec.  10.3.1(1), which 
provides that ``Elements such as ramps, elevators, or other circulation 
devices, fare vending or other ticketing areas, and fare collection 
areas shall be placed to minimize the distance which wheelchair users 
and other persons who cannot negotiate steps may have to travel compared 
to the general public.'' This concept, in our view, is implicit in the 
language of Sec.  206.3. However, we believe it is useful to make 
explicit the concept that, in transportation facilities such as rail 
stations, important facility elements are placed so as to minimize the 
distance persons with disabilities must travel to use them. This 
requirement is intended to affect decisions about where to locate 
entrances, boarding locations (e.g., where a mini-high platform is used 
for boarding), and other key elements of a facility.

                              Section 406.8

    To maintain the status quo with respect to detectable warnings in 
pedestrian facilities, the Department is adding a provision (not found 
in the current version of the new ADAAG) requiring curb ramps to have 
detectable warnings.

                             Section 810.2.2

    The Department recognizes that there will be some situations in 
which the full dimensions of a bus boarding and alighting area complying 
with the Sec.  810.2.2 may not be able to be achieved (e.g., there is 
less than 96 inches of perpendicular space available from the curb or 
roadway edge, because of buildings or terrain features). The Department 
is adding language from former Sec.  37.9 (c) of this part, which 
provides that ``Public entities shall ensure the construction of bus 
boarding and alighting areas comply with 810.2.2, to the extent the 
construction specifications are within their control.'' Where it is not 
feasible to fully comply with Sec.  810.2.2, the Department expects 
compliance to the greatest extent feasible.
    We note that there may be some instances in which it will be 
necessary to make operational adjustments where sufficient clearance is 
not available to permit the deployment of lifts or ramps on vehicles. 
For example, a bus driver could position the bus at a nearby point--even 
if not the precise location of the designated stop--so that a passenger 
needing a lift or ramp to get on or off the bus can do so. To avoid the 
need for such operational adjustments, it is important to place bus 
shelters, signs, etc. so that they do not intrude into the required 
clearances.

                             Section 810.5.3

    This section concerns coordination between rail platforms and rail 
vehicles. The Department is adding language from the former Sec.  10.3.1 
(9) (Exception 2), which provides that ``In light rail, commuter rail, 
and intercity rail systems where it is not operationally or structurally 
feasible to meet the horizontal gap or vertical difference requirements, 
mini-high platforms, car-borne or

[[Page 525]]

platform-mounted lifts, ramps or bridge plates or similarly manually 
deployed devices, meeting the requirements of 49 CFR Part 38 shall be 
permitted.''
    In September 2005, the Department issued guidance concerning the 
relationship of its ADA and 504 rules in the context of rail platform 
accessibility This guidance emphasized that access to all cars of a 
train is significant because, if passengers with disabilities are unable 
to enter all cars from the platform, the passengers will have access 
only to segregated service. This would be inconsistent with the 
nondiscrimination mandate of the ADA. It would also, in the case of 
Federal Transit Administration (FTA) and Federal Railroad Administration 
(FRA)-assisted projects (including Amtrak), be inconsistent with the 
requirement of the Department's section 504 regulation (49 CFR Sec.  
27.7), which requires service in the most integrated setting reasonably 
achievable. This guidance states the Department's views of the meaning 
of its existing rules, and the Department will continue to use this 
guidance in applying the provisions of this rule.
    The Department notes that a related section of 49 CFR part 38 has 
been the source of some misunderstanding. Section 38.71(b)(2) provides 
that ``Vehicles designed for, and operated on, pedestrian malls, city 
streets, or other areas where level-entry boarding is not practicable 
shall provide wayside or car-borne lifts, mini-high platforms, or other 
means of access in compliance with Sec.  38.83 (b) or (c) of this 
part.'' The Department has received some suggestions that this provision 
should be interpreted to mean that, if there is any portion of a system 
in which level-entry boarding is not practicable, then the entire system 
can use some method other than level-entry boarding. Such an 
interpretation is incorrect. The authority to use alternatives to level-
entry boarding pertains only to those portions of a system in which rail 
vehicles are ``operated on'' an area where level-entry boarding is not 
practicable.
    For example, suppose a light rail system's first three stops are on 
a pedestrian/transit mall where it is infeasible to provide level-entry 
boarding. The transit system could use car-borne lifts, mini-high 
platforms, etc. to provide access at those three stops. The system's 
next ten stops are part of a right-of-way in which level-entry boarding 
is practicable. In such a case, level-entry boarding would have to be 
provided at those ten stops. There is nothing inappropriate about the 
same system having different means of boarding in different locations, 
in such a case.
    We also caution against a potential misunderstanding of the sentence 
in Sec.  810.5.3 that provides that ``Low-level platforms shall be 8 
inches minimum (205 mm) above top of rail.'' This does not mean that 
high-level platforms are prohibited or that low-level platforms are the 
only design consistent with the rules. It simply means that where low-
level platforms are otherwise permitted, such platforms must be at least 
8 inches above the top of rail, except where vehicles are boarded from 
the street or a sidewalk.

[56 FR 45621, Sept. 6, 1991, as amended at 61 FR 25416, May 21, 1996; 71 
FR 63266, Oct. 30, 2006; 76 FR 57936, Sept. 19, 2011; 79 FR 21406, Apr. 
16, 2014]



      Sec. Appendix E to Part 37--Reasonable Modification Requests

    A. This appendix explains the Department's interpretation of 
Sec. Sec.  37.5(i) and 37.169. It is intended to be used as the official 
position of the Department concerning the meaning and implementation of 
these provisions. The Department also issues guidance by other means, as 
provided in Sec.  37.15. The Department also may update this appendix 
periodically, provided in response to inquiries about specific 
situations that are of general relevance or interest.
    B. The Department's ADA regulations contain numerous requirements 
concerning fixed route, complementary paratransit, and other types of 
transportation service. Transportation entities necessarily formulate 
policies and practices to meet these requirements (e.g., providing fixed 
route bus service that people with disabilities can use to move among 
stops on the system, providing complementary paratransit service that 
gets eligible riders from their point of origin to their point of 
destination). There may be certain situations, however, in which the 
otherwise reasonable policies and practices of entities do not suffice 
to achieve the regulation's objectives. Implementing a fixed route bus 
policy in the normal way may not allow a passenger with a disability to 
access and use the system at a particular location. Implementing a 
paratransit policy in the usual way may not allow a rider to get from 
his or her origin to his or her destination. In these situations, 
subject to the limitations discussed below, the transportation provider 
must make reasonable modifications of its service in order to comply 
with the underlying requirements of the rule. These underlying 
provisions tell entities the end they must achieve; the reasonable 
modification provision tells entities how to achieve that end in 
situations in which normal policies and practices do not succeed in 
doing so.
    C. As noted above, the responsibility of entities to make requested 
reasonable modifications is not without some limitations. There are four 
classes of situations in which a request may legitimately be denied. The 
first is where granting the request would fundamentally alter the 
entity's services,

[[Page 526]]

programs, or activities. The second is where granting the request would 
create a direct threat to the health or safety of others. The third is 
where without the requested modification, the individual with a 
disability is able to fully use the entity's services, programs, or 
activities for their intended purpose. The fourth, which applies only to 
recipients of Federal financial assistance, is where granting the 
request would cause an undue financial and administrative burden. In the 
examples that follow, these limitations are taken into account.
    D. The examples included in this appendix are neither exhaustive nor 
exclusive. Transportation entities may need to make determinations about 
requests for reasonable modification that are not described in this 
appendix. Importantly, reasonable modification applies to an entities' 
own policies and practices, and not regulatory requirements contained in 
49 CFR parts 27, 37, 38, and 39, such as complementary paratransit 
service going beyond \3/4\ mile of the fixed route, providing same day 
complementary paratransit service, etc.

                                Examples

    1. Snow and Ice. Except in extreme conditions that rise to the level 
of a direct threat to the driver or others, a passenger's request for a 
paratransit driver to walk over a pathway that has not been fully 
cleared of snow and ice should be granted so that the driver can help 
the passenger with a disability navigate the pathway. For example, 
ambulatory blind passengers often have difficulty in icy conditions, and 
allowing the passenger to take the driver's arm will increase both the 
speed and safety of the passenger's walk from the door to the vehicle. 
Likewise, if snow or icy conditions at a bus stop make it difficult or 
impossible for a fixed route passenger with a disability to get to a 
lift, or for the lift to deploy, the driver should move the bus to a 
cleared area for boarding, if such is available within reasonable 
proximity to the stop (see Example 4 below).
    2. Pick Up and Drop Off Locations with Multiple Entrances. A 
paratransit rider's request to be picked up at home, but not at the 
front door of his or her home, should be granted, as long as the 
requested pick-up location does not pose a direct threat. Similarly, in 
the case of frequently visited public places with multiple entrances 
(e.g., shopping malls, employment centers, schools, hospitals, 
airports), the paratransit operator should pick up and drop off the 
passenger at the entrance requested by the passenger, rather than meet 
them in a location that has been predetermined by the transportation 
agency, again assuming that doing so does not involve a direct threat.
    3. Private Property. Paratransit passengers may sometimes seek to be 
picked up on private property (e.g., in a gated community or parking 
lot, mobile home community, business or government facility where 
vehicle access requires authorized passage through a security barrier). 
Even if the paratransit operator does not generally have a policy of 
picking up passengers on such private property, the paratransit operator 
should make every reasonable effort to gain access to such an area 
(e.g., work with the passenger to get the permission of the property 
owner to permit access for the paratransit vehicle). The paratransit 
operator is not required to violate the law or lawful access 
restrictions to meet the passenger's requests. A public or private 
entity that unreasonably denies access to a paratransit vehicle may be 
subject to a complaint to the U.S. Department of Justice or U.S. 
Department of Housing and Urban Development for discriminating against 
services for persons with disabilities.
    4. Obstructions. For fixed route services, a passenger's request for 
a driver to position the vehicle to avoid obstructions to the 
passenger's ability to enter or leave the vehicle at a designated stop 
location, such as parked cars, snow banks, and construction, should be 
granted so long as positioning the vehicle to avoid the obstruction does 
not pose a direct threat. To be granted, such a request should result in 
the vehicle stopping in reasonably close proximity to the designated 
stop location. Transportation entities are not required to pick up 
passengers with disabilities at nondesignated locations. Fixed route 
operators would not have to establish flag stop or route-deviation 
policies, as these would be fundamental alterations to a fixed route 
system rather than reasonable modifications of a system. Likewise, 
subject to the limitations discussed in the introduction to this 
appendix, paratransit operators should be flexible in establishing pick 
up and drop off points to avoid obstructions.
    5. Fare Handling. A passenger's request for transit personnel (e.g., 
the driver, station attendant) to handle the fare media when the 
passenger with a disability cannot pay the fare by the generally 
established means should be granted on fixed route or paratransit 
service (e.g., in a situation where a bus passenger cannot reach or 
insert a fare into the farebox). Transit personnel are not required to 
reach into pockets or backpacks in order to extract the fare media.
    6. Eating and Drinking. If a passenger with diabetes or another 
medical condition requests to eat or drink aboard a vehicle or in a 
transit facility in order to avoid adverse health consequences, the 
request should be granted, even if the transportation provider has a 
policy that prohibits eating or drinking. For example, a person with 
diabetes may need to consume a small amount of orange juice in a closed 
container or a candy bar in order to maintain blood sugar levels.
    7. Medicine. A passenger's request to take medication while aboard a 
fixed route or

[[Page 527]]

paratransit vehicle or in a transit facility should be granted. For 
example, transit agencies should modify their policies to allow 
individuals to administer insulin injections and conduct finger stick 
blood glucose testing. Transit staff need not provide medical 
assistance, however, as this would be a fundamental alteration of their 
function.
    8. Boarding Separately From Wheelchair. A wheelchair user's request 
to board a fixed route or paratransit vehicle separately from his or her 
device when the occupied weight of the device exceeds the design load of 
the vehicle lift should generally be granted. (Note, however, that under 
Sec.  37.165(b), entities are required to accommodate device/user loads 
and dimensions that exceed the former ``common wheelchair'' standard, as 
long as the vehicle and lift will accommodate them.)
    9. Dedicated vehicles or special equipment in a vehicle. A 
paratransit passenger's request for special equipment (e.g., the 
installation of specific hand rails or a front seat in a vehicle for the 
passenger to avoid nausea or back pain) can be denied so long as the 
requested equipment is not required by the Americans with Disabilities 
Act or the Department's rules. Likewise, a request for a dedicated 
vehicle (e.g., to avoid residual chemical odors) or a specific type or 
appearance of vehicle (e.g., a sedan rather than a van, in order to 
provide more comfortable service) can be denied. In all of these cases, 
the Department views meeting the request as involving a fundamental 
alteration of the provider's service.
    10. Exclusive or Reduced Capacity Paratransit Trips. A passenger's 
request for an exclusive paratransit trip may be denied as a fundamental 
alteration of the entity's services. Paratransit is by nature a shared-
ride service.
    11. Outside of the Service Area or Operating Hours. A person's 
request for fixed route or paratransit service may be denied when 
honoring the request would require the transportation provider to travel 
outside of its service area or to operate outside of its operating 
hours. This request would not be a reasonable modification because it 
would constitute a fundamental alteration of the entity's service.
    12. Personal Care Attendant (PCA). While PCAs may travel with a 
passenger with a disability, transportation agencies are not required to 
provide a personal care attendant or personal care attendant services to 
meet the needs of passengers with disabilities on paratransit or fixed 
route trips. For example, a passenger's request for a transportation 
entity's driver to remain with the passenger who, due to his or her 
disability, cannot be left alone without an attendant upon reaching his 
or her destination may be denied. It would be a fundamental alteration 
of the driver's function to provide PCA services of this kind.
    13. Intermediate Stops. The Department views granting a paratransit 
passenger's request for a driver to make an intermediate stop, where the 
driver would be required to wait, as optional. For example, a passenger 
with a disability arranges to be picked up at a medical facility and 
dropped off at home. On the way, the passenger with a disability wishes 
to stop by a pharmacy and requests that the driver park outside of the 
pharmacy, wait for the passenger to return, and then continue the ride 
home. While this can be a very useful service to the rider, and in some 
cases can save the provider's time and money (by scheduling and 
providing a separate trip to and from the drug store), such a stop in 
the context of a shared ride system is not required. Since paratransit 
is, by its nature, a shared ride system, requests that could disrupt 
schedules and inconvenience other passengers could rise to the level of 
a fundamental alteration.
    14. Payment. A passenger's request for a fixed route or paratransit 
driver to provide the transit service when the passenger with a 
disability cannot or refuses to pay the fare may be denied. If the 
transportation agency requires payment to ride, then to provide a free 
service would constitute a fundamental alteration of the entity's 
service.
    15. Caring for Service Animals. A paratransit or fixed route 
passenger's request that the driver take charge of a service animal may 
be denied. Caring for a service animal is the responsibility of the 
passenger or a PCA.
    16. Opening Building Doors. For paratransit services, a passenger's 
request for the driver to open an exterior entry door to a building to 
provide boarding and/or alighting assistance to a passenger with a 
disability should generally be granted as long as providing this 
assistance would not pose a direct threat, or leave the vehicle 
unattended or out of visual observation for a lengthy period of time.\1\ 
Note that a request for ``door-through-door'' service (i.e., assisting 
the passenger past the door to the building) generally would not need to 
be granted because it could rise to the level of a fundamental 
alteration.
---------------------------------------------------------------------------

    \1\ Please see guidance issued on this topic. U.S. Department of 
Transportation, Origin-to-Destination Service, September 1, 2005, 
available at http://www.fta.dot.gov/12325_3891.html (explaining that, 
``the Department does not view transit providers' obligations as 
extending to the provision of personal services. . . . Nor would 
drivers, for lengthy periods of time, have to leave their vehicles 
unattended or lose the ability to keep their vehicles under visual 
observation, or take actions that would be clearly unsafe . . .'').
---------------------------------------------------------------------------

    17. Exposing Vehicle to Hazards. If the passenger requests that a 
vehicle follow a path

[[Page 528]]

to a pick up or drop off point that would expose the vehicle and its 
occupants to hazards, such as running off the road, getting stuck, 
striking overhead objects, or reversing the vehicle down a narrow alley, 
the request can be denied as creating a direct threat.
    18. Hard-to-Maneuver Stops. A passenger may request that a 
paratransit vehicle navigate to a pick-up point to which it is difficult 
to maneuver a vehicle. A passenger's request to be picked up in a 
location that is difficult, but not impossible or impracticable, to 
access should generally be granted as long as picking up the passenger 
does not expose the vehicle to hazards that pose a direct threat (e.g., 
it is unsafe for the vehicle and its occupants to get to the pick-up 
point without getting stuck or running off the road).
    19. Specific Drivers. A passenger's request for a specific driver 
may be denied. Having a specific driver is not necessary to afford the 
passenger the service provided by the transit operator.
    20. Luggage and Packages. A passenger's request for a fixed route or 
paratransit driver to assist with luggage or packages may be denied in 
those instances where it is not the normal policy or practice of the 
transportation agency to assist with luggage or packages. Such 
assistance is a matter for the passenger or PCA, and providing this 
assistance would be a fundamental alteration of the driver's function.
    21. Request to Avoid Specific Passengers. A paratransit passenger's 
request not to ride with certain passengers may be denied. Paratransit 
is a shared-ride service. As a result, one passenger may need to share 
the vehicle with people that he or she would rather not.
    22. Navigating an Incline, or Around Obstacles. A paratransit 
passenger's request for a driver to help him or her navigate an incline 
(e.g., a driveway or sidewalk) with the passenger's wheeled device 
should generally be granted. Likewise, assistance in traversing a 
difficult sidewalk (e.g., one where tree roots have made the sidewalk 
impassible for a wheelchair) should generally be granted, as should 
assistance around obstacles (e.g., snowdrifts, construction areas) 
between the vehicle and a door to a passenger's house or destination 
should generally be granted. These modifications would be granted 
subject, of course, to the proviso that such assistance would not cause 
a direct threat, or leave the vehicle unattended or out of visual 
observation for a lengthy period of time.
    23. Extreme Weather Assistance. A passenger's request to be assisted 
from his or her door to a vehicle during extreme weather conditions 
should generally be granted so long as the driver leaving the vehicle to 
assist would not pose a direct threat, or leave the vehicle unattended 
or out of visual observation for a lengthy period of time. For example, 
in extreme weather (e.g., very windy or stormy conditions), a person who 
is blind or vision-impaired or a frail elderly person may have 
difficulty safely moving to and from a building.
    24. Unattended Passengers. Where a passenger's request for 
assistance means that the driver will need to leave passengers aboard a 
vehicle unattended, transportation agencies should generally grant the 
request as long as accommodating the request would not leave the vehicle 
unattended or out of visual observation for a lengthy period of time, 
both of which could involve direct threats to the health or safety of 
the unattended passengers. It is important to keep in mind that, just as 
a driver is not required to act as a PCA for a passenger making a 
request for assistance, so a driver is not intended to act as a PCA for 
other passengers in the vehicle, such that he or she must remain in 
their physical presence at all times.
    25. Need for Return Trip Assistance. A passenger with a disability 
may need assistance for a return trip when he or she did not need that 
assistance on the initial trip. For example, a dialysis patient may have 
no problem waiting at the curb for a ride to go to the dialysis center, 
but may well require assistance to the door on his or her return trip 
because of physical weakness or fatigue. To the extent that this need is 
predictable, it should be handled in advance, either as part of the 
eligibility process or the provider's reservations process. If the need 
arises unexpectedly, then it would need to be handled on an ad hoc 
basis. The paratransit operator should generally provide such 
assistance, unless doing so would create a direct threat, or leave the 
vehicle unattended or out of visual observation for a lengthy period of 
time.
    26. Five-Minute Warning or Notification of Arrival Calls. A 
passenger's request for a telephone call 5 minutes (or another 
reasonable interval) in advance or at time of vehicle arrival generally 
should be granted. As a matter of courtesy, such calls are encouraged as 
a good customer service model and can prevent ``no shows.'' Oftentimes, 
these calls can be generated through an automated system. In those 
situations where automated systems are not available and paratransit 
drivers continue to rely on hand-held communication devices (e.g., 
cellular telephones) drivers should comply with any State or Federal 
laws related to distracted driving.
    27. Hand-Carrying. Except in emergency situations, a passenger's 
request for a driver to lift the passenger out of his or her mobility 
device should generally be denied because of the safety, dignity, and 
privacy issues implicated by hand-carrying a passenger. Hand-

[[Page 529]]

carrying a passenger is also a PCA-type service which is outside the 
scope of driver duties, and hence a fundamental alteration.

[80 FR 13261, Mar. 13, 2015, as amended at 80 FR 26196, May 7, 2015]



PART 38_AMERICANS WITH DISABILITIES ACT (ADA) ACCESSIBILITY SPECIFICATIONS 
FOR TRANSPORTATION VEHICLES--Table of Contents



                            Subpart A_General

Sec.
38.1 Purpose.
38.2 Equivalent facilitation.
38.3 Definitions.
38.4 Miscellaneous instructions.

                    Subpart B_Buses, Vans and Systems

38.21 General.
38.23 Mobility aid accessibility.
38.25 Doors, steps and thresholds.
38.27 Priority seating signs.
38.29 Interior circulation, handrails and stanchions.
38.31 Lighting.
38.33 Fare box.
38.35 Public information system.
38.37 Stop request.
38.39 Destination and route signs.

                Subpart C_Rapid Rail Vehicles and Systems

38.51 General.
38.53 Doorways.
38.55 Priority seating signs.
38.57 Interior circulation, handrails and stanchions.
38.59 Floor surfaces.
38.61 Public information system.
38.63 Between-car barriers.

                Subpart D_Light Rail Vehicles and Systems

38.71 General.
38.73 Doorways.
38.75 Priority seating signs.
38.77 Interior circulation, handrails and stanchions.
38.79 Floors, steps and thresholds.
38.81 Lighting.
38.83 Mobility aid accessibility.
38.85 Between-car barriers.
38.87 Public information system.

                Subpart E_Commuter Rail Cars and Systems

38.91 General.
38.93 Doorways.
38.95 Mobility aid accessibility.
38.97 Interior circulation, handrails and stanchions.
38.99 Floors, steps and thresholds.
38.101 Lighting.
38.103 Public information system.
38.105 Priority seating signs.
38.107 Restrooms.
38.109 Between-car barriers.

                Subpart F_Intercity Rail Cars and Systems

38.111 General.
38.113 Doorways.
38.115 Interior circulation, handrails and stanchions.
38.117 Floors, steps and thresholds.
38.119 Lighting.
38.121 Public information system.
38.123 Restrooms.
38.125 Mobility aid accessibility.
38.127 Sleeping compartments.

                Subpart G_Over-the-Road Buses and Systems

38.151 General.
38.153 Doors, steps and thresholds.
38.155 Interior circulation, handrails and stanchions.
38.157 Lighting.
38.159 Mobility aid accessibility.
38.161 Moveable aisle armrests.

                  Subpart H_Other Vehicles and Systems

38.171 General.
38.173 Automated guideway transit vehicles and systems.
38.175 High-speed rail cars, monorails and systems.
38.177 Ferries, excursion boats and other vessels. [Reserved]
38.179 Trams, and similar vehicles, and systems.

Figures to Part 38
Appendix to Part 38--Guidance Material

    Authority: 42 U.S.C. 12101-12213; 49 U.S.C. 322.

    Source: 56 FR 45756, Sept. 6, 1991, unless otherwise noted.



                            Subpart A_General



Sec.  38.1  Purpose.

    This part provides minimum guidelines and requirements for 
accessibility standards in part 37 of this title for transportation 
vehicles required to be accessible by the Americans With Disabilities 
Act (ADA) of 1990 (42 U.S.C. 1201 et seq.).



Sec.  38.2  Equivalent facilitation.

    Departures from particular technical and scoping requirements of 
these guidelines by use of other designs and

[[Page 530]]

technologies are permitted where the alternative designs and 
technologies used will provide substantially equivalent or greater 
access to and usability of the vehicle. Departures are to be considered 
on a case-by-case basis under procedures set forth in Sec.  37.7 of this 
title.



Sec.  38.3  Definitions.

    See Sec.  37.3 of this title.



Sec.  38.4  Miscellaneous instructions.

    (a) Dimensional conventions. Dimensions that are not noted as 
minimum or maximum are absolute.
    (b) Dimensional tolerances. All dimensions are subject to 
conventional engineering tolerances for material properties and field 
conditions, including normal anticipated wear not exceeding accepted 
industry-wide standards and practices.
    (c) Notes. The text of these guidelines does not contain notes or 
footnotes. Additional information, explanations, and advisory materials 
are located in the Appendix.
    (d) General terminology. (1) Comply with means meet one or more 
specification of these guidelines.
    (2) If or if * * * then denotes a specification that applies only 
when the conditions described are present.
    (3) May denotes an option or alternative.
    (4) Shall denotes a mandatory specification or requirement.
    (5) Should denotes an advisory specification or recommendation.



                    Subpart B_Buses, Vans and Systems



Sec.  38.21  General.

    (a) New, used or remanufactured buses and vans (except over-the-road 
buses covered by subpart G of this part), to be considered accessible by 
regulations in part 37 of this title shall comply with the applicable 
provisions of this subpart.
    (b) If portions of the vehicle are modified in a way that affects or 
could affect accessibility, each such portion shall comply, to the 
extent practicable, with the applicable provisions of this subpart. This 
provision does not require that inaccessible buses be retrofitted with 
lifts, ramps or other boarding devices.



Sec.  38.23  Mobility aid accessibility.

    (a) General. All vehicles covered by this subpart shall provide a 
level-change mechanism or boarding device (e.g., lift or ramp) complying 
with paragraph (b) or (c) of this section and sufficient clearances to 
permit a wheelchair or other mobility aid user to reach a securement 
location. At least two securement locations and devices, complying with 
paragraph (d) of this section, shall be provided on vehicles in excess 
of 22 feet in length; at least one securement location and device, 
complying with paragraph (d) of this section, shall be provided on 
vehicles 22 feet in length or less.
    (b) Vehicle lift--(1) Design load. The design load of the lift shall 
be at least 600 pounds. Working parts, such as cables, pulleys, and 
shafts, which can be expected to wear, and upon which the lift depends 
for support of the load, shall have a safety factor of at least six, 
based on the ultimate strength of the material. Nonworking parts, such 
as platform, frame, and attachment hardware which would not be expected 
to wear, shall have a safety factor of at least three, based on the 
ultimate strength of the material.
    (2) Controls--(i) Requirements. The controls shall be interlocked 
with the vehicle brakes, transmission, or door, or shall provide other 
appropriate mechanisms or systems, to ensure that the vehicle cannot be 
moved when the lift is not stowed and so the lift cannot be deployed 
unless the interlocks or systems are engaged. The lift shall deploy to 
all levels (i.e., ground, curb, and intermediate positions) normally 
encountered in the operating environment. Where provided, each control 
for deploying, lowering, raising, and stowing the lift and lowering the 
roll-off barrier shall be of a momentary contact type requiring 
continuous manual pressure by the operator and shall not allow improper 
lift sequencing when the lift platform is occupied. The controls shall 
allow reversal of the lift operation sequence, such as raising or 
lowering a platform that is part way down, without allowing an occupied

[[Page 531]]

platform to fold or retract into the stowed position.
    (ii) Exception. Where the lift is designed to deploy with its long 
dimension parallel to the vehicle axis and which pivots into or out of 
the vehicle while occupied (i.e., ``rotary lift''), the requirements of 
this paragraph prohibiting the lift from being stowed while occupied 
shall not apply if the stowed position is within the passenger 
compartment and the lift is intended to be stowed while occupied.
    (3) Emergency operation. The lift shall incorporate an emergency 
method of deploying, lowering to ground level with a lift occupant, and 
raising and stowing the empty lift if the power to the lift fails. No 
emergency method, manual or otherwise, shall be capable of being 
operated in a manner that could be hazardous to the lift occupant or to 
the operator when operated according to manufacturer's instructions, and 
shall not permit the platform to be stowed or folded when occupied, 
unless the lift is a rotary lift and is intended to be stowed while 
occupied.
    (4) Power or equipment failure. Platforms stowed in a vertical 
position, and deployed platforms when occupied, shall have provisions to 
prevent their deploying, falling, or folding any faster than 12 inches/
second or their dropping of an occupant in the event of a single failure 
of any load carrying component.
    (5) Platform barriers. The lift platform shall be equipped with 
barriers to prevent any of the wheels of a wheelchair or mobility aid 
from rolling off the platform during its operation. A movable barrier or 
inherent design feature shall prevent a wheelchair or mobility aid from 
rolling off the edge closest to the vehicle until the platform is in its 
fully raised position. Each side of the lift platform which extends 
beyond the vehicle in its raised position shall have a barrier a minimum 
1\1/2\ inches high. Such barriers shall not interfere with maneuvering 
into or out of the aisle. The loading-edge barrier (outer barrier) which 
functions as a loading ramp when the lift is at ground level, shall be 
sufficient when raised or closed, or a supplementary system shall be 
provided, to prevent a power wheelchair or mobility aid from riding over 
or defeating it. The outer barrier of the lift shall automatically raise 
or close, or a supplementary system shall automatically engage, and 
remain raised, closed, or engaged at all times that the platform is more 
than 3 inches above the roadway or sidewalk and the platform is 
occupied. Alternatively, a barrier or system may be raised, lowered, 
opened, closed, engaged, or disengaged by the lift operator, provided an 
interlock or inherent design feature prevents the lift from rising 
unless the barrier is raised or closed or the supplementary system is 
engaged.
    (6) Platform surface. The platform surface shall be free of any 
protrusions over \1/4\ inch high and shall be slip resistant. The 
platform shall have a minimum clear width of 28\1/2\ inches at the 
platform, a minimum clear width of 30 inches measured from 2 inches 
above the platform surface to 30 inches above the platform, and a 
minimum clear length of 48 inches measured from 2 inches above the 
surface of the platform to 30 inches above the surface of the platform. 
(See Fig. 1)
    (7) Platform gaps. Any openings between the platform surface and the 
raised barriers shall not exceed \5/8\ inch in width. When the platform 
is at vehicle floor height with the inner barrier (if applicable) down 
or retracted, gaps between the forward lift platform edge and the 
vehicle floor shall not exceed \1/2\ inch horizontally and \5/8\ inch 
vertically. Platforms on semi-automatic lifts may have a hand hold not 
exceeding 1\1/2\ inches by 4\1/2\ inches located between the edge 
barriers.
    (8) Platform entrance ramp. The entrance ramp, or loading-edge 
barrier used as a ramp, shall not exceed a slope of 1:8, measured on 
level ground, for a maximum rise of 3 inches, and the transition from 
roadway or sidewalk to ramp may be vertical without edge treatment up to 
\1/4\ inch. Thresholds between \1/4\ inch and \1/2\ inch high shall be 
beveled with a slope no greater than 1:2.
    (9) Platform deflection. The lift platform (not including the 
entrance ramp) shall not deflect more than 3 degrees (exclusive of 
vehicle roll or pitch) in any direction between its unloaded position 
and its position when loaded with 600 pounds applied through a 26

[[Page 532]]

inch by 26 inch test pallet at the centroid of the platform.
    (10) Platform movement. No part of the platform shall move at a rate 
exceeding 6 inches/second during lowering and lifting an occupant, and 
shall not exceed 12 inches/second during deploying or stowing. This 
requirement does not apply to the deployment or stowage cycles of lifts 
that are manually deployed or stowed. The maximum platform horizontal 
and vertical acceleration when occupied shall be 0.3g.
    (11) Boarding direction. The lift shall permit both inboard and 
outboard facing of wheelchair and mobility aid users.
    (12) Use by standees. Lifts shall accommodate persons using walkers, 
crutches, canes or braces or who otherwise have difficulty using steps. 
The platform may be marked to indicate a preferred standing position.
    (13) Handrails. Platforms on lifts shall be equipped with handrails 
on two sides, which move in tandem with the lift, and which shall be 
graspable and provide support to standees throughout the entire lift 
operation. Handrails shall have a usable component at least 8 inches 
long with the lowest portion a minimum 30 inches above the platform and 
the highest portion a maximum 38 inches above the platform. The 
handrails shall be capable of withstanding a force of 100 pounds 
concentrated at any point on the handrail without permanent deformation 
of the rail or its supporting structure. The handrail shall have a 
cross-sectional diameter between 1\1/4\ inches and 1\1/2\ inches or 
shall provide an equivalent grasping surface, and have eased edges with 
corner radii of not less than \1/8\ inch. Handrails shall be placed to 
provide a minimum 1\1/2\ inches knuckle clearance from the nearest 
adjacent surface. Handrails shall not interfere with wheelchair or 
mobility aid maneuverability when entering or leaving the vehicle.
    (c) Vehicle ramp--(1) Design load. Ramps 30 inches or longer shall 
support a load of 600 pounds, placed at the centroid of the ramp 
distributed over an area of 26 inches by 26 inches, with a safety factor 
of at least 3 based on the ultimate strength of the material. Ramps 
shorter than 30 inches shall support a load of 300 pounds.
    (2) Ramp surface. The ramp surface shall be continuous and slip 
resistant; shall not have protrusions from the surface greater than \1/
4\ inch high; shall have a clear width of 30 inches; and shall 
accommodate both four-wheel and three-wheel mobility aids.
    (3) Ramp threshold. The transition from roadway or sidewalk and the 
transition from vehicle floor to the ramp may be vertical without edge 
treatment up to \1/4\ inch. Changes in level between \1/4\ inch and \1/
2\ inch shall be beveled with a slope no greater than 1:2.
    (4) Ramp barriers. Each side of the ramp shall have barriers at 
least 2 inches high to prevent mobility aid wheels from slipping off.
    (5) Slope. Ramps shall have the least slope practicable and shall 
not exceed 1:4 when deployed to ground level. If the height of the 
vehicle floor from which the ramp is deployed is 3 inches or less above 
a 6-inch curb, a maximum slope of 1:4 is permitted; if the height of the 
vehicle floor from which the ramp is deployed is 6 inches or less, but 
greater than 3 inches, above a 6-inch curb, a maximum slope of 1:6 is 
permitted; if the height of the vehicle floor from which the ramp is 
deployed is 9 inches or less, but greater than 6 inches, above a 6-inch 
curb, a maximum slope of 1:8 is permitted; if the height of the vehicle 
floor from which the ramp is deployed is greater than 9 inches above a 
6-inch curb, a slope of 1:12 shall be achieved. Folding or telescoping 
ramps are permitted provided they meet all structural requirements of 
this section.
    (6) Attachment. When in use for boarding or alighting, the ramp 
shall be firmly attached to the vehicle so that it is not subject to 
displacement when loading or unloading a heavy power mobility aid and 
that no gap between vehicle and ramp exceeds \5/8\ inch.
    (7) Stowage. A compartment, securement system, or other appropriate 
method shall be provided to ensure that stowed ramps, including portable 
ramps stowed in the passenger area, do not impinge on a passenger's 
wheelchair or mobility aid or pose any hazard to passengers in the event 
of a sudden stop or maneuver.

[[Page 533]]

    (8) Handrails. If provided, handrails shall allow persons with 
disabilities to grasp them from outside the vehicle while starting to 
board, and to continue to use them throughout the boarding process, and 
shall have the top between 30 inches and 38 inches above the ramp 
surface. The handrails shall be capable of withstanding a force of 100 
pounds concentrated at any point on the handrail without permanent 
deformation of the rail or its supporting structure. The handrail shall 
have a cross-sectional diameter between 1\1/4\ inches and 1\1/2\ inches 
or shall provide an equivalent grasping surface, and have eased edges 
with corner radii of not less than \1/8\ inch. Handrails shall not 
interfere with wheelchair or mobility aid maneuverability when entering 
or leaving the vehicle.
    (d) Securement devices--(1) Design load. Securement systems on 
vehicles with GVWRs of 30,000 pounds or above, and their attachments to 
such vehicles, shall restrain a force in the forward longitudinal 
direction of up to 2,000 pounds per securement leg or clamping mechanism 
and a minimum of 4,000 pounds for each mobility aid. Securement systems 
on vehicles with GVWRs of up to 30,000 pounds, and their attachments to 
such vehicles, shall restrain a force in the forward longitudinal 
direction of up to 2,500 pounds per securement leg or clamping mechanism 
and a minimum of 5,000 pounds for each mobility aid.
    (2) Location and size. The securement system shall be placed as near 
to the accessible entrance as practicable and shall have a clear floor 
area of 30 inches by 48 inches. Such space shall adjoin, and may 
overlap, an access path. Not more than 6 inches of the required clear 
floor space may be accommodated for footrests under another seat 
provided there is a minimum of 9 inches from the floor to the lowest 
part of the seat overhanging the space. Securement areas may have fold-
down seats to accommodate other passengers when a wheelchair or mobility 
aid is not occupying the area, provided the seats, when folded up, do 
not obstruct the clear floor space required. (See Fig. 2)
    (3) Mobility aids accommodated. The securement system shall secure 
common wheelchairs and mobility aids and shall either be automatic or 
easily attached by a person familiar with the system and mobility aid 
and having average dexterity.
    (4) Orientation. In vehicles in excess of 22 feet in length, at 
least one securement device or system required by paragraph (a) of this 
section shall secure the wheelchair or mobility aid facing toward the 
front of the vehicle. Additional securement devices or systems shall 
secure the wheelchair or mobility aid facing forward, or rearward with a 
padded barrier, extending from a height of 38 inches from the vehicle 
floor to a height of 56 inches from the vehicle floor with a width of 18 
inches, laterally centered immediately in back of the seated individual. 
In vehicles 22 feet in length or less, the required securement device 
may secure the wheelchair or mobility aid either facing toward the front 
of the vehicle or facing rearward, with a padded barrier as described. 
Additional securement locations shall be either forward or rearward 
facing with a padded barrier. Such barriers need not be solid provided 
equivalent protection is afforded.
    (5) Movement. When the wheelchair or mobility aid is secured in 
accordance with manufacturer's instructions, the securement system shall 
limit the movement of an occupied wheelchair or mobility aid to no more 
than 2 inches in any direction under normal vehicle operating 
conditions.
    (6) Stowage. When not being used for securement, or when the 
securement area can be used by standees, the securement system shall not 
interfere with passenger movement, shall not present any hazardous 
condition, shall be reasonably protected from vandalism, and shall be 
readily accessed when needed for use.
    (7) Seat belt and shoulder harness. For each wheelchair or mobility 
aid securement device provided, a passenger seat belt and shoulder 
harness, complying with all applicable provisions of part 571 of this 
title, shall also be provided for use by wheelchair or mobility aid 
users. Such seat belts and shoulder harnesses shall not be used in lieu 
of a device which secures the wheelchair or mobility aid itself.

[[Page 534]]



Sec.  38.25  Doors, steps and thresholds.

    (a) Slip resistance. All aisles, steps, floor areas where people 
walk and floors in securement locations shall have slip-resistant 
surfaces.
    (b) Contrast. All step edges, thresholds and the boarding edge of 
ramps or lift platforms shall have a band of color(s) running the full 
width of the step or edge which contrasts from the step tread and riser, 
or lift or ramp surface, either light-on-dark or dark-on-light.
    (c) Door height. For vehicles in excess of 22 feet in length, the 
overhead clearance between the top of the door opening and the raised 
lift platform, or highest point of a ramp, shall be a minimum of 68 
inches. For vehicles of 22 feet in length or less, the overhead 
clearance between the top of the door opening and the raised lift 
platform, or highest point of a ramp, shall be a minimum of 56 inches.



Sec.  38.27  Priority seating signs.

    (a) Each vehicle shall contain sign(s) which indicate that seats in 
the front of the vehicle are priority seats for persons with 
disabilities, and that other passengers should make such seats available 
to those who wish to use them. At least one set of forward-facing seats 
shall be so designated.
    (b) Each securement location shall have a sign designating it as 
such.
    (c) Characters on signs required by paragraphs (a) and (b) of this 
section shall have a width-to-height ratio between 3:5 and 1:1 and a 
stroke width-to-height ratio between 1:5 and 1:10, with a minimum 
character height (using an upper case ``X'') of \5/8\ inch, with 
``wide'' spacing (generally, the space between letters shall be \1/16\ 
the height of upper case letters), and shall contrast with the 
background either light-on-dark or dark-on-light.



Sec.  38.29  Interior circulation, handrails and stanchions.

    (a) Interior handrails and stanchions shall permit sufficient 
turning and maneuvering space for wheelchairs and other mobility aids to 
reach a securement location from the lift or ramp.
    (b) Handrails and stanchions shall be provided in the entrance to 
the vehicle in a configuration which allows persons with disabilities to 
grasp such assists from outside the vehicle while starting to board, and 
to continue using such assists throughout the boarding and fare 
collection process. Handrails shall have a cross-sectional diameter 
between 1\1/4\ inches and 1\1/2\ inches or shall provide an equivalent 
grasping surface, and have eased edges with corner radii of not less 
than \1/8\ inch. Handrails shall be placed to provide a minimum 1\1/2\ 
inches knuckle clearance from the nearest adjacent surface. Where on-
board fare collection devices are used on vehicles in excess of 22 feet 
in length, a horizontal passenger assist shall be located across the 
front of the vehicle and shall prevent passengers from sustaining 
injuries on the fare collection device or windshield in the event of a 
sudden deceleration. Without restricting the vestibule space, the assist 
shall provide support for a boarding passenger from the front door 
through the boarding procedure. Passengers shall be able to lean against 
the assist for security while paying fares.
    (c) For vehicles in excess of 22 feet in length, overhead 
handrail(s) shall be provided which shall be continuous except for a gap 
at the rear doorway.
    (d) Handrails and stanchions shall be sufficient to permit safe 
boarding, on-board circulation, seating and standing assistance, and 
alighting by persons with disabilities.
    (e) For vehicles in excess of 22 feet in length with front-door 
lifts or ramps, vertical stanchions immediately behind the driver shall 
either terminate at the lower edge of the aisle-facing seats, if 
applicable, or be ``dog-legged'' so that the floor attachment does not 
impede or interfere with wheelchair footrests. If the driver seat 
platform must be passed by a wheelchair or mobility aid user entering 
the vehicle, the platform, to the maximum extent practicable, shall not 
extend into the aisle or vestibule beyond the wheel housing.
    (f) For vehicles in excess of 22 feet in length, the minimum 
interior height along the path from the lift to the securement location 
shall be 68 inches. For vehicles of 22 feet in length or less, the 
minimum interior height from lift to securement location shall be 56 
inches.

[[Page 535]]



Sec.  38.31  Lighting.

    (a) Any stepwell or doorway immediately adjacent to the driver shall 
have, when the door is open, at least 2 foot-candles of illumination 
measured on the step tread or lift platform.
    (b) Other stepwells and doorways, including doorways in which lifts 
or ramps are installed, shall have, at all times, at least 2 foot-
candles of illumination measured on the step tread, or lift or ramp, 
when deployed at the vehicle floor level.
    (c) The vehicle doorways, including doorways in which lifts or ramps 
are installed, shall have outside light(s) which, when the door is open, 
provide at least 1 foot-candle of illumination on the street surface for 
a distance 3 feet (915 mm) perpendicular to the bottom step tread or 
lift outer edge. Such light(s) shall be shielded to protect the eyes of 
entering and exiting passengers.

[56 FR 45756, Sept. 6, 1991, as amended at 63 FR 51697, 51702, Sept. 28, 
1998]



Sec.  38.33  Fare box.

    Where provided, the farebox shall be located as far forward as 
practicable and shall not obstruct traffic in the vestibule, especially 
wheelchairs or mobility aids.



Sec.  38.35  Public information system.

    (a) Vehicles in excess of 22 feet in length, used in multiple-stop, 
fixed-route service, shall be equipped with a public address system 
permitting the driver, or recorded or digitized human speech messages, 
to announce stops and provide other passenger information within the 
vehicle.
    (b) [Reserved]



Sec.  38.37  Stop request.

    (a) Where passengers may board or alight at multiple stops at their 
option, vehicles in excess of 22 feet in length shall provide controls 
adjacent to the securement location for requesting stops and which 
alerts the driver that a mobility aid user wishes to disembark. Such a 
system shall provide auditory and visual indications that the request 
has been made.
    (b) Controls required by paragraph (a) of this section shall be 
mounted no higher than 48 inches and no lower than 15 inches above the 
floor, shall be operable with one hand and shall not require tight 
grasping, pinching, or twisting of the wrist. The force required to 
activate controls shall be no greater than 5 lbf (22.2 N).



Sec.  38.39  Destination and route signs.

    (a) Where destination or route information is displayed on the 
exterior of a vehicle, each vehicle shall have illuminated signs on the 
front and boarding side of the vehicle.
    (b) Characters on signs required by paragraph (a) of this section 
shall have a width-to-height ratio between 3:5 and 1:1 and a stroke 
width-to-height ratio between 1:5 and 1:10, with a minimum character 
height (using an upper case ``X'') of 1 inch for signs on the boarding 
side and a minimum character height of 2 inches for front ``headsigns'', 
with ``wide'' spacing (generally, the space between letters shall be \1/
16\ the height of upper case letters), and shall contrast with the 
background, either dark-on-light or light-on-dark.



                Subpart C_Rapid Rail Vehicles and Systems



Sec.  38.51  General.

    (a) New, used and remanufactured rapid rail vehicles, to be 
considered accessible by regulations in part 37 of this title, shall 
comply with this subpart.
    (b) If portions of the vehicle are modified in a way that affects or 
could affect accessibility, each such portion shall comply, to the 
extent practicable, with the applicable provisions of this subpart. This 
provision does not require that inaccessible vehicles be retrofitted 
with lifts, ramps or other boarding devices.
    (c) Existing vehicles which are retrofitted to comply with the 
``one-car-per-train rule'' of Sec.  37.93 of this title shall comply 
with Sec. Sec.  38.55, 38.57(b), 38.59 of this part and shall have, in 
new and key stations, at least one door complying with Sec. Sec.  38.53 
(a)(1), (b) and (d) of this part. Removal of seats is not required. 
Vehicles previously designed and manufactured in accordance with the 
accessibility requirements of part 609 of this title or the Secretary of

[[Page 536]]

Transportation regulations implementing section 504 of the 
Rehabilitation Act of 1973 that were in effect before October 7, 1991, 
and which can be entered and used from stations in which they are to be 
operated, may be used to satisfy the requirements of Sec.  37.93 of this 
title.



Sec.  38.53  Doorways.

    (a) Clear width. (1) Passenger doorways on vehicle sides shall have 
clear openings at least 32 inches wide when open.
    (2) If doorways connecting adjoining cars in a multi-car train are 
provided, and if such doorway is connected by an aisle with a minimum 
clear width of 30 inches to one or more spaces where wheelchair or 
mobility aid users can be accommodated, then such doorway shall have a 
minimum clear opening of 30 inches to permit wheelchair and mobility aid 
users to be evacuated to an adjoining vehicle in an emergency.
    (b) Signage. The International Symbol of Accessibility shall be 
displayed on the exterior of accessible vehicles operating on an 
accessible rapid rail system unless all vehicles are accessible and are 
not marked by the access symbol. (See Fig. 6.)
    (c) Signals. Auditory and visual warning signals shall be provided 
to alert passengers of closing doors.
    (d) Coordination with boarding platform--(1) Requirements. Where new 
vehicles will operate in new stations, the design of vehicles shall be 
coordinated with the boarding platform design such that the horizontal 
gap between each vehicle door at rest and the platform shall be no 
greater than 3 inches and the height of the vehicle floor shall be 
within plus or minus \5/8\ inch of the platform height under all normal 
passenger load conditions. Vertical alignment may be accomplished by 
vehicle air suspension or other suitable means of meeting the 
requirement.
    (2) Exception. New vehicles operating in existing stations may have 
a floor height within plus or minus 1\1/2\ inches of the platform 
height. At key stations, the horizontal gap between at least one door of 
each such vehicle and the platform shall be no greater than 3 inches.
    (3) Exception. Retrofitted vehicles shall be coordinated with the 
platform in new and key stations such that the horizontal gap shall be 
no greater than 4 inches and the height of the vehicle floor, under 50% 
passenger load, shall be within plus or minus 2 inches of the platform 
height.



Sec.  38.55  Priority seating signs.

    (a) Each vehicle shall contain sign(s) which indicate that certain 
seats are priority seats for persons with disabilities, and that other 
passengers should make such seats available to those who wish to use 
them.
    (b) Characters on signs required by paragraph (a) of this section 
shall have a width-to-height ratio between 3:5 and 1:1 and a stroke 
width-to-height ratio between 1:5 and 1:10, with a minimum character 
height (using an upper case ``X'') of \5/8\ inch, with ``wide'' spacing 
(generally, the space between letters shall be \1/16\ the height of 
upper case letters), and shall contrast with the background, either 
light-on-dark or dark-on-light.



Sec.  38.57  Interior circulation, handrails and stanchions.

    (a) Handrails and stanchions shall be provided to assist safe 
boarding, on-board circulation, seating and standing assistance, and 
alighting by persons with disabilities.
    (b) Handrails, stanchions, and seats shall allow a route at least 32 
inches wide so that at least two wheelchair or mobility aid users can 
enter the vehicle and position the wheelchairs or mobility aids in 
areas, each having a minimum clear space of 48 inches by 30 inches, 
which do not unduly restrict movement of other passengers. Space to 
accommodate wheelchairs and mobility aids may be provided within the 
normal area used by standees and designation of specific spaces is not 
required. Particular attention shall be given to ensuring maximum 
maneuverability immediately inside doors. Ample vertical stanchions from 
ceiling to seat-back rails shall be provided. Vertical stanchions from 
ceiling to floor shall not interfere with wheelchair or mobility aid 
user circulation and shall be kept to a minimum in the vicinity of 
doors.

[[Page 537]]

    (c) The diameter or width of the gripping surface of handrails and 
stanchions shall be 1\1/4\ inches to 1\1/2\ inches or provide an 
equivalent gripping surface and shall provide a minimum 1\1/2\ inches 
knuckle clearance from the nearest adjacent surface.



Sec.  38.59  Floor surfaces.

    Floor surfaces on aisles, places for standees, and areas where 
wheelchair and mobility aid users are to be accommodated shall be slip-
resistant.



Sec.  38.61  Public information system.

    (a)(1) Requirements. Each vehicle shall be equipped with a public 
address system permitting transportation system personnel, or recorded 
or digitized human speech messages, to announce stations and provide 
other passenger information. Alternative systems or devices which 
provide equivalent access are also permitted. Each vehicle operating in 
stations having more than one line or route shall have an external 
public address system to permit transportation system personnel, or 
recorded or digitized human speech messages, to announce train, route, 
or line identification information.
    (2) Exception. Where station announcement systems provide 
information on arriving trains, an external train speaker is not 
required.
    (b) [Reserved]



Sec.  38.63  Between-car barriers.

    (a) Requirement. Suitable devices or systems shall be provided to 
prevent, deter or warn individuals from inadvertently stepping off the 
platform between cars. Acceptable solutions include, but are not limited 
to, pantograph gates, chains, motion detectors or similar devices.
    (b) Exception. Between-car barriers are not required where platform 
screens are provided which close off the platform edge and open only 
when trains are correctly aligned with the doors.



                Subpart D_Light Rail Vehicles and Systems



Sec.  38.71  General.

    (a) New, used and remanufactured light rail vehicles, to be 
considered accessible by regulations in part 37 of this title shall 
comply with this subpart.
    (b)(1) Vehicles intended to be operated solely in light rail systems 
confined entirely to a dedicated right-of-way, and for which all 
stations or stops are designed and constructed for revenue service after 
the effective date of standards for design and construction in 
Sec. Sec.  37.21 and 37.23 of this title shall provide level boarding 
and shall comply with Sec. Sec.  38.73(d)(1) and 38.85 of this part.
    (2) Vehicles designed for, and operated on, pedestrian malls, city 
streets, or other areas where level boarding is not practicable shall 
provide wayside or car-borne lifts, mini-high platforms, or other means 
of access in compliance with Sec.  38.83 (b) or (c) of this part.
    (c) If portions of the vehicle are modified in a way that affects or 
could affect accessibility, each such portion shall comply, to the 
extent practicable, with the applicable provisions of this subpart. This 
provision does not require that inaccessible vehicles be retrofitted 
with lifts, ramps or other boarding devices.
    (d) Existing vehicles retrofitted to comply with the ``one-car-per-
train rule'' at Sec.  37.93 of this title shall comply with Sec.  38.75, 
Sec.  38.77(c), Sec.  38.79(a) and Sec.  38.83(a) of this part and shall 
have, in new and key stations, at least one door which complies with 
Sec. Sec.  38.73 (a)(1), (b) and (d) of this part. Vehicles previously 
designed and manufactured in accordance with the accessibility 
requirements of part 609 of this title or the Secretary of 
Transportation regulations implementing section 504 of the 
Rehabilitation Act of 1973 that were in effect before October 7, 1991, 
and which can be entered and used from stations in which they are to be 
operated, may be used to satisfy the requirements of Sec.  37.93 of this 
title.

[[Page 538]]



Sec.  38.73  Doorways.

    (a) Clear width. (1) All passenger doorways on vehicle sides shall 
have minimum clear openings of 32 inches when open.
    (2) If doorways connecting adjoining cars in a multi-car train are 
provided, and if such doorway is connected by an aisle with a minimum 
clear width of 30 inches to one or more spaces where wheelchair or 
mobility aid users can be accommodated, then such doorway shall have a 
minimum clear opening of 30 inches to permit wheelchair and mobility aid 
users to be evacuated to an adjoining vehicle in an emergency.
    (b) Signage. The International Symbol of Accessibility shall be 
displayed on the exterior of each vehicle operating on an accessible 
light rail system unless all vehicles are accessible and are not marked 
by the access symbol (see fig. 6).
    (c) Signals. Auditory and visual warning signals shall be provided 
to alert passengers of closing doors.
    (d) Coordination with boarding platform--(1) Requirements. The 
design of level-entry vehicles shall be coordinated with the boarding 
platform or mini-high platform design so that the horizontal gap between 
a vehicle at rest and the platform shall be no greater than 3 inches and 
the height of the vehicle floor shall be within plus or minus \5/8\ inch 
of the platform height. Vertical alignment may be accomplished by 
vehicle air suspension, automatic ramps or lifts, or any combination.
    (2) Exception. New vehicles operating in existing stations may have 
a floor height within plus or minus 1\1/2\ inches of the platform 
height. At key stations, the horizontal gap between at least one door of 
each such vehicle and the platform shall be no greater than 3 inches.
    (3) Exception. Retrofitted vehicles shall be coordinated with the 
platform in new and key stations such that the horizontal gap shall be 
no greater than 4 inches and the height of the vehicle floor, under 50% 
passenger load, shall be within plus or minus 2 inches of the platform 
height.
    (4) Exception. Where it is not operationally or structurally 
practicable to meet the horizontal or vertical requirements of 
paragraphs (d) (1), (2) or (3) of this section, platform or vehicle 
devices complying with Sec.  38.83(b) or platform or vehicle mounted 
ramps or bridge plates complying with Sec.  38.83(c) shall be provided.



Sec.  38.75  Priority seating signs.

    (a) Each vehicle shall contain sign(s) which indicate that certain 
seats are priority seats for persons with disabilities, and that other 
passengers should make such seats available to those who wish to use 
them.
    (b) Where designated wheelchair or mobility aid seating locations 
are provided, signs shall indicate the location and advise other 
passengers of the need to permit wheelchair and mobility aid users to 
occupy them.
    (c) Characters on signs required by paragraphs (a) or (b) of this 
section shall have a width-to-height ratio between 3:5 and 1:1 and a 
stroke width-to-height ratio between 1:5 and 1:10, with a minimum 
character height (using an upper case ``X'') of \5/8\ inch, with 
``wide'' spacing (generally, the space between letters shall be \1/16\ 
the height of upper case letters), and shall contrast with the 
background, either light-on-dark or dark-on-light.



Sec.  38.77  Interior circulation, handrails and stanchions.

    (a) Handrails and stanchions shall be sufficient to permit safe 
boarding, on-board circulation, seating and standing assistance, and 
alighting by persons with disabilities.
    (b) At entrances equipped with steps, handrails and stanchions shall 
be provided in the entrance to the vehicle in a configuration which 
allows passengers to grasp such assists from outside the vehicle while 
starting to board, and to continue using such handrails or stanchions 
throughout the boarding process. Handrails shall have a cross-sectional 
diameter between 1\1/4\ inches and 1\1/2\ inches or shall provide an 
equivalent grasping surface, and have eased edges with corner radii of 
not less than \1/8\ inch. Handrails shall be placed to provide a minimum 
1\1/2\ inches knuckle clearance from the nearest adjacent surface. Where 
on-board fare collection devices are used, a horizontal passenger assist 
shall be located

[[Page 539]]

between boarding passengers and the fare collection device and shall 
prevent passengers from sustaining injuries on the fare collection 
device or windshield in the event of a sudden deceleration. Without 
restricting the vestibule space, the assist shall provide support for a 
boarding passenger from the door through the boarding procedure. 
Passengers shall be able to lean against the assist for security while 
paying fares.
    (c) At all doors on level-entry vehicles, and at each entrance 
accessible by lift, ramp, bridge plate or other suitable means, 
handrails, stanchions, passenger seats, vehicle driver seat platforms, 
and fare boxes, if applicable, shall be located so as to allow a route 
at least 32 inches wide so that at least two wheelchair or mobility aid 
users can enter the vehicle and position the wheelchairs or mobility 
aids in areas, each having a minimum clear space of 48 inches by 30 
inches, which do not unduly restrict movement of other passengers. Space 
to accommodate wheelchairs and mobility aids may be provided within the 
normal area used by standees and designation of specific spaces is not 
required. Particular attention shall be given to ensuring maximum 
maneuverability immediately inside doors. Ample vertical stanchions from 
ceiling to seat-back rails shall be provided. Vertical stanchions from 
ceiling to floor shall not interfere with wheelchair or mobility aid 
circulation and shall be kept to a minimum in the vicinity of accessible 
doors.



Sec.  38.79  Floors, steps and thresholds.

    (a) Floor surfaces on aisles, step treads, places for standees, and 
areas where wheelchair and mobility aid users are to be accommodated 
shall be slip-resistant.
    (b) All thresholds and step edges shall have a band of color(s) 
running the full width of the step or threshold which contrasts from the 
step tread and riser or adjacent floor, either light-on-dark or dark-on-
light.



Sec.  38.81  Lighting.

    (a) Any stepwell or doorway with a lift, ramp or bridge plate 
immediately adjacent to the driver shall have, when the door is open, at 
least 2 foot-candles of illumination measured on the step tread or lift 
platform.
    (b) Other stepwells, and doorways with lifts, ramps or bridge 
plates, shall have, at all times, at least 2 foot-candles of 
illumination measured on the step tread or lift or ramp, when deployed 
at the vehicle floor level.
    (c) The doorways of vehicles not operating at lighted station 
platforms shall have outside lights which provide at least 1 foot-candle 
of illumination on the station platform or street surface for a distance 
of 3 feet perpendicular to all points on the bottom step tread. Such 
lights shall be located below window level and shielded to protect the 
eyes of entering and exiting passengers.



Sec.  38.83  Mobility aid accessibility.

    (a)(1) General. All new light rail vehicles, other than level entry 
vehicles, covered by this subpart shall provide a level-change mechanism 
or boarding device (e.g., lift, ramp or bridge plate) complying with 
either paragraph (b) or (c) of this section and sufficient clearances to 
permit at least two wheelchair or mobility aid users to reach areas, 
each with a minimum clear floor space of 48 inches by 30 inches, which 
do not unduly restrict passenger flow. Space to accommodate wheelchairs 
and mobility aids may be provided within the normal area used by 
standees and designation of specific spaces is not required.
    (2) Exception. If lifts, ramps or bridge plates meeting the 
requirements of this section are provided on station platforms or other 
stops required to be accessible, or mini-high platforms complying with 
Sec.  38.73(d) of this part are provided, the vehicle is not required to 
be equipped with a car-borne device. Where each new vehicle is 
compatible with a single platform-mounted access system or device, 
additional systems or devices are not required for each vehicle provided 
that the single device could be used to provide access to each new 
vehicle if passengers using wheelchairs or mobility aids could not be 
accommodated on a single vehicle.
    (b) Vehicle lift--(1) Design load. The design load of the lift shall 
be at least 600 pounds. Working parts, such as cables, pulleys, and 
shafts, which can be

[[Page 540]]

expected to wear, and upon which the lift depends for support of the 
load, shall have a safety factor of at least six, based on the ultimate 
strength of the material. Nonworking parts, such as platform, frame, and 
attachment hardware which would not be expected to wear, shall have a 
safety factor of at least three, based on the ultimate strength of the 
material.
    (2) Controls--(i) Requirements. The controls shall be interlocked 
with the vehicle brakes, propulsion system, or door, or shall provide 
other appropriate mechanisms or systems, to ensure that the vehicle 
cannot be moved when the lift is not stowed and so the lift cannot be 
deployed unless the interlocks or systems are engaged. The lift shall 
deploy to all levels (i.e., ground, curb, and intermediate positions) 
normally encountered in the operating environment. Where provided, each 
control for deploying, lowering, raising, and stowing the lift and 
lowering the roll-off barrier shall be of a momentary contact type 
requiring continuous manual pressure by the operator and shall not allow 
improper lift sequencing when the lift platform is occupied. The 
controls shall allow reversal of the lift operation sequence, such as 
raising or lowering a platform that is part way down, without allowing 
an occupied platform to fold or retract into the stowed position.
    (ii) Exception. Where physical or safety constraints prevent the 
deployment at some stops of a lift having its long dimension 
perpendicular to the vehicle axis, the transportation entity may specify 
a lift which is designed to deploy with its long dimension parallel to 
the vehicle axis and which pivots into or out of the vehicle while 
occupied (i.e., ``rotary lift''). The requirements of paragraph 
(b)(2)(i) of this section prohibiting the lift from being stowed while 
occupied shall not apply to a lift design of this type if the stowed 
position is within the passenger compartment and the lift is intended to 
be stowed while occupied.
    (iii) Exception. The brake or propulsion system interlocks 
requirement does not apply to a station platform mounted lift provided 
that a mechanical, electrical or other system operates to ensure that 
vehicles do not move when the lift is in use.
    (3) Emergency operation. The lift shall incorporate an emergency 
method of deploying, lowering to ground level with a lift occupant, and 
raising and stowing the empty lift if the power to the lift fails. No 
emergency method, manual or otherwise, shall be capable of being 
operated in a manner that could be hazardous to the lift occupant or to 
the operator when operated according to manufacturer's instructions, and 
shall not permit the platform to be stowed or folded when occupied, 
unless the lift is a rotary lift intended to be stowed while occupied.
    (4) Power or equipment failure. Lift platforms stowed in a vertical 
position, and deployed platforms when occupied, shall have provisions to 
prevent their deploying, falling, or folding any faster than 12 inches/
second or their dropping of an occupant in the event of a single failure 
of any load carrying component.
    (5) Platform barriers. The lift platform shall be equipped with 
barriers to prevent any of the wheels of a wheelchair or mobility aid 
from rolling off the lift during its operation. A movable barrier or 
inherent design feature shall prevent a wheelchair or mobility aid from 
rolling off the edge closest to the vehicle until the lift is in its 
fully raised position. Each side of the lift platform which extends 
beyond the vehicle in its raised position shall have a barrier a minimum 
1\1/2\ inches high. Such barriers shall not interfere with maneuvering 
into or out of the aisle. The loading-edge barrier (outer barrier) which 
functions as a loading ramp when the lift is at ground level, shall be 
sufficient when raised or closed, or a supplementary system shall be 
provided, to prevent a power wheelchair or mobility aid from riding over 
or defeating it. The outer barrier on the outboard of the lift shall 
automatically rise or close, or a supplementary system shall 
automatically engage, and remain raised, closed, or engaged at all times 
that the lift is more than 3 inches above the station platform or 
roadway and the lift is occupied. Alternatively, a barrier or system may 
be

[[Page 541]]

raised, lowered, opened, closed, engaged or disengaged by the lift 
operator provided an interlock or inherent design feature prevents the 
lift from rising unless the barrier is raised or closed or the 
supplementary system is engaged.
    (6) Platform surface. The lift platform surface shall be free of any 
protrusions over \1/4\ inch high and shall be slip resistant. The lift 
platform shall have a minimum clear width of 28\1/2\ inches at the 
platform, a minimum clear width of 30 inches measured from 2 inches 
above the lift platform surface to 30 inches above the surface, and a 
minimum clear length of 48 inches measured from 2 inches above the 
surface of the platform to 30 inches above the surface. (See Fig. 1)
    (7) Platform gaps. Any openings between the lift platform surface 
and the raised barriers shall not exceed \5/8\ inch wide. When the lift 
is at vehicle floor height with the inner barrier (if applicable) down 
or retracted, gaps between the forward lift platform edge and vehicle 
floor shall not exceed \1/2\ inch horizontally and \5/8\ inch 
vertically. Platforms on semi-automatic lifts may have a hand hold not 
exceeding 1\1/2\ inches by 4\1/2\ inches located between the edge 
barriers.
    (8) Platform entrance ramp. The entrance ramp, or loading-edge 
barrier used as a ramp, shall not exceed a slope of 1:8 measured on 
level ground, for a maximum rise of 3 inches, and the transition from 
the station platform or roadway to ramp may be vertical without edge 
treatment up to \1/4\ inch. Thresholds between \1/4\ inch and \1/2\ inch 
high shall be beveled with a slope no greater than 1:2.
    (9) Platform deflection. The lift platform (not including the 
entrance ramp) shall not deflect more than 3 degrees (exclusive of 
vehicle roll) in any direction between its unloaded position and its 
position when loaded with 600 pounds applied through a 26 inch by 26 
inch test pallet at the centroid of the lift platform.
    (10) Platform movement. No part of the platform shall move at a rate 
exceeding 6 inches/second during lowering and lifting an occupant, and 
shall not exceed 12 inches/second during deploying or stowing. This 
requirement does not apply to the deployment or stowage cycles of lifts 
that are manually deployed or stowed. The maximum platform horizontal 
and vertical acceleration when occupied shall be 0.3g.
    (11) Boarding direction. The lift shall permit both inboard and 
outboard facing of wheelchairs and mobility aids.
    (12) Use by standees. Lifts shall accommodate persons using walkers, 
crutches, canes or braces or who otherwise have difficulty using steps. 
The lift may be marked to indicate a preferred standing position.
    (13) Handrails. Platforms on lifts shall be equipped with handrails, 
on two sides, which move in tandem with the lift which shall be 
graspable and provide support to standees throughout the entire lift 
operation. Handrails shall have a usable component at least 8 inches 
long with the lowest portion a minimum 30 inches above the platform and 
the highest portion a maximum 38 inches above the platform. The 
handrails shall be capable of withstanding a force of 100 pounds 
concentrated at any point on the handrail without permanent deformation 
of the rail or its supporting structure. Handrails shall have a cross-
sectional diameter between 1\1/4\ inches and 1\1/2\ inches or shall 
provide an equivalent grasping surface, and have eased edges with corner 
radii of not less than \1/8\ inch. Handrails shall be placed to provide 
a minimum 1\1/2\ inches knuckle clearance from the nearest adjacent 
surface. Handrails shall not interfere with wheelchair or mobility aid 
maneuverability when entering or leaving the vehicle.
    (c) Vehicle ramp or bridge plate--(1) Design load. Ramps or bridge 
plates 30 inches or longer shall support a load of 600 pounds, placed at 
the centroid of the ramp or bridge plate distributed over an area of 26 
inches, with a safety factor of at least 3 based on the ultimate 
strength of the material. Ramps or bridge plates shorter than 30 inches 
shall support a load of 300 pounds.
    (2) Ramp surface. The ramp or bridge plate surface shall be 
continuous and slip resistant, shall not have protrusions from the 
surface greater then \1/4\ inch, shall have a clear width of 30 inches, 
and shall accommodate both four-wheel and three-wheel mobility aids.

[[Page 542]]

    (3) Ramp threshold. The transition from roadway or station platform 
and the transition from vehicle floor to the ramp or bridge plate may be 
vertical without edge treatment up to \1/4\ inch. Changes in level 
between \1/4\ inch and \1/2\ inch shall be beveled with a slope no 
greater than 1:2.
    (4) Ramp barriers. Each side of the ramp or bridge plate shall have 
barriers at least 2 inches high to prevent mobility aid wheels from 
slipping off.
    (5) Slope. Ramps or bridge plates shall have the least slope 
practicable. If the height of the vehicle floor, under 50% passenger 
load, from which the ramp is deployed is 3 inches or less above the 
station platform a maximum slope of 1:4 is permitted; if the height of 
the vehicle floor, under 50% passenger load, from which the ramp is 
deployed is 6 inches or less, but more than 3 inches, above the station 
platform a maximum slope of 1:6 is permitted; if the height of the 
vehicle floor, under 50% passenger load, from which the ramp is deployed 
is 9 inches or less, but more than 6 inches, above the station platform 
a maximum slope of 1:8 is permitted; if the height of the vehicle floor, 
under 50% passenger load, from which the ramp is deployed is greater 
than 9 inches above the station platform a slope of 1:12 shall be 
achieved. Folding or telescoping ramps are permitted provided they meet 
all structural requirements of this section.
    (6) Attachment--(i) Requirement. When in use for boarding or 
alighting, the ramp or bridge plate shall be attached to the vehicle, or 
otherwise prevented from moving such that it is not subject to 
displacement when loading or unloading a heavy power mobility aid and 
that any gaps between vehicle and ramp or bridge plate, and station 
platform and ramp or bridge plate, shall not exceed \5/8\ inch.
    (ii) Exception. Ramps or bridge plates which are attached to, and 
deployed from, station platforms are permitted in lieu of vehicle 
devices provided they meet the displacement requirements of paragraph 
(c)(6)(i) of this section.
    (7) Stowage. A compartment, securement system, or other appropriate 
method shall be provided to ensure that stowed ramps or bridge plates, 
including portable ramps or bridges plates stowed in the passenger area, 
do not impinge on a passenger's wheelchair or mobility aid or pose any 
hazard to passengers in the event of a sudden stop.
    (8) Handrails. If provided, handrails shall allow persons with 
disabilities to grasp them from outside the vehicle while starting to 
board, and to continue to use them throughout the boarding process, and 
shall have the top between 30 inches and 38 inches above the ramp 
surface. The handrails shall be capable of withstanding a force of 100 
pounds concentrated at any point on the handrail without permanent 
deformation of the rail or its supporting structure. The handrail shall 
have a cross- sectional diameter between 1\1/4\ inches and 1\1/2\ inches 
or shall provide an equivalent grasping surface, and have ``eased'' 
edges with corner radii of not less than \1/8\ inch. Handrails shall not 
interfere with wheelchair or mobility aid maneuverability when entering 
or leaving the vehicle.



Sec.  38.85  Between-car barriers.

    Where vehicles operate in a high-platform, level-boarding mode, 
devices or systems shall be provided to prevent, deter or warn 
individuals from inadvertently stepping off the platform between cars. 
Appropriate devices include, but are not limited to, pantograph gates, 
chains, motion detectors or other suitable devices.



Sec.  38.87  Public information system.

    (a) Each vehicle shall be equipped with an interior public address 
system permitting transportation system personnel, or recorded or 
digitized human speech messages, to announce stations and provide other 
passenger information. Alternative systems or devices which provide 
equivalent access are also permitted.
    (b) [Reserved]



                Subpart E_Commuter Rail Cars and Systems



Sec.  38.91  General.

    (a) New, used and remanufactured commuter rail cars, to be 
considered accessible by regulations in part 37 of this title, shall 
comply with this subpart.

[[Page 543]]

    (b) If portions of the car are modified in such a way that it 
affects or could affect accessibility, each such portion shall comply, 
to the extent practicable, with the applicable provisions of this 
subpart. This provision does not require that inaccessible cars be 
retrofitted with lifts, ramps or other boarding devices.
    (c)(1) Commuter rail cars shall comply with Sec. Sec.  38.93(d) and 
38.109 of this part for level boarding unless structurally or 
operationally impracticable.
    (2) Where level boarding is structurally or operationally 
impracticable, commuter rail cars shall comply Sec.  38.95 of this part.
    (d) Existing vehicles retrofitted to comply with the ``one-car-per-
train rule'' at Sec.  37.93 of this title shall comply with Sec. Sec.  
38.93(e), 38.95(a) and 38.107 of this part and shall have, in new and 
key stations at least one door on each side from which passengers board 
which complies with Sec.  38.93(d) of this part. Vehicles previously 
designed and manufactured in accordance with the program accessibility 
requirements of section 504 of the Rehabilitation Act of 1973, or 
implementing regulations of the Secretary of Transportation that were in 
effect before October 7, 1991; and which can be entered and used from 
stations in which they are to be operated, may be used to satisfy the 
requirements of Sec.  37.93 of this title.

[56 FR 45756, Sept. 6, 1991, as amended at 76 FR 57939, Sept. 19, 2011]



Sec.  38.93  Doorways.

    (a) Clear width. (1) At least one door on each side of the car from 
which passengers board opening onto station platforms and at least one 
adjacent doorway into the passenger coach compartment, if provided, 
shall have a minimum clear opening of 32 inches.
    (2) If doorways connecting adjoining cars in a multi-car train are 
provided, and if such doorway is connected by an aisle with a minimum 
clear width of 30 inches to one or more spaces where wheelchair or 
mobility aid users can be accommodated, then such doorway shall have, to 
the maximum extent practicable in accordance with the regulations issued 
under the Federal Railroad Safety Act of 1970 (49 CFR parts 229 and 
231), a clear opening of 30 inches.
    (b) Passageways. A route at least 32 inches wide shall be provided 
from doors required to be accessible by paragraph (a)(1) of this section 
to seating locations complying with Sec.  38.95(d) of this part. In cars 
where such doorways require passage through a vestibule, such vestibule 
shall have a minimum width of 42 inches. (See Fig. 3.)
    (c) Signals. If doors to the platform close automatically or from a 
remote location, auditory and visual warning signals shall be provided 
to alert passengers or closing doors.
    (d) Coordination with boarding platform--(1) Requirements. Cars 
operating in stations with high platforms, or mini-high platforms, shall 
be coordinated with the boarding platform design such that the 
horizontal gap between a car at rest and the platform shall be no 
greater than 3 inches and the height of the car floor shall be within 
plus or minus \5/8\ inch of the platform height. Vertical alignment may 
be accomplished by car air suspension, platform lifts or other devices, 
or any combination.
    (2) Exception. New vehicles operating in existing stations may have 
a floor height within plus or minus 1\1/2\ inches of the platform 
height. At key stations, the horizontal gap between at least one 
accessible door of each such vehicle and the platform shall be no 
greater than 3 inches.
    (3) Exception. Where platform set-backs do not allow the horizontal 
gap or vertical alignment specified in paragraph (d)(1) or (d)(2) of 
this section, car, platform or portable lifts complying with Sec.  
38.95(b) of this part, or car or platform ramps or bridge plates, 
complying with Sec.  38.95(c) of this part, shall be provided,ensuring 
compliance with section 37.42, where applicable.
    (4) Exception. Retrofitted vehicles shall be coordinated with the 
platform in new and key stations such that the horizontal gap shall be 
no greater than 4 inches and the height of the vehicle floor, under 50% 
passenger load, shall be within plus or minus 2 inches of the platform 
height.
    (e) Signage. The International Symbol of Accessibility shall be 
displaced on the exterior of all doors complying

[[Page 544]]

with this section unless all cars are accessible and are not marked by 
the access symbol (see Fig. 6). Appropriate signage shall also indicate 
which accessible doors are adjacent to an accessible restroom, if 
applicable.

[56 FR 45756, Sept. 6, 1991, as amended at 76 FR 57939, Sept. 19, 2011]



Sec.  38.95  Mobility aid accessibility.

    (a)(1) General. All new commuter rail cars, other than level entry 
cars, covered by this subpart shall provide a level-change mechanism or 
boarding device (e.g., lift, ramp or bridge plate) complying with either 
paragraph (b) or (c) of this section; sufficient clearances to permit a 
wheelchair or mobility aid user to reach a seating location; and at 
least two wheelchair or mobility aid seating locations complying with 
paragraph (d) of this section.
    (2) Exception. If level-entry boarding, portable or platform lifts, 
ramps or bridge plates meeting the applicable requirements of this 
section are provided on station platforms or other stops required to be 
accessible, or mini-high platforms complying with Sec.  38.93(d) are 
provided, the car is not required to be equipped with a car-borne 
device. The access systems or devices used at a station to which section 
37.42 applies must permit compliance with that section.
    (b) Car Lift--(1) Design load. The design load of the lift shall be 
at least 600 pounds. Working parts, such as cables, pulleys, and shafts, 
which can be expected to wear, and upon which the lift depends for 
support of the load, shall have a safety factor of at least six, based 
on the ultimate strength of the material. Nonworking parts, such as 
platform, frame, and attachment hardware which would not be expected to 
wear, shall have a safety factor of at least three, based on the 
ultimate strength of the material.
    (2) Controls--(i) Requirements. The controls shall be interlocked 
with the car brakes, propulsion system, or door, or shall provide other 
appropriate mechanisms or systems, to ensure that the car cannot be 
moved when the lift is not stowed and so the lift cannot be deployed 
unless the interlocks or systems are engaged. The lift shall deploy to 
all platform levels normally encountered in the operating environment. 
Where provided, each control for deploying, lowering, raising, and 
stowing the lift and lowering the roll-off barrier shall be of a 
monetary contact type requiring continuous manual pressure by the 
operator and shall not allow improper lift sequencing when the lift 
platform is occupied. The controls shall allow reversal of the lift 
operation sequence, such as raising or lowering a platform that is part 
way down, without allowing an occupied platform to fold or retract into 
the stowed position.
    (ii) Exception. Where physical or safety constraints prevent the 
deployment at some stops of a lift having its long dimension 
perpendicular to the car axis, the transportation entity may specify a 
lift which is designed to deploy with its long dimension parallel to the 
car axis and which pivots into or out of the car while occupied (i.e., 
``rotary lift''). The requirements of paragraph (b)(2)(i) of this 
section prohibiting the lift from being stowed while occupied shall not 
apply to a lift design of this type if the stowed position is within the 
passenger compartment and the lift is intended to be stowed while 
occupied.
    (iii) Exception. The brake or propulsion system interlock 
requirement does not apply to a platform mounted or portable lift 
provided that a mechanical, electrical or other system operates to 
ensure that cars do not move when the lift is in use.
    (3) Emergency operation. The lift shall incorporate an emergency 
method of deploying, lowering to ground or platform level with a lift 
occupant, and raising and stowing the empty lift if the power to the 
lift fails. No emergency method, manual or otherwise, shall be capable 
of being operated in a manner that could be hazardous to the lift 
occupant or to the operator when operated according to manufacturer's 
instructions, and shall not permit the platform to be stowed or folded 
when occupied, unless the lift is a rotary lift intended to be stowed 
while occupied.
    (4) Power or equipment failure. Platforms stowed in a vertical 
position, and deployed platforms when occupied, shall have provisions to 
prevent their deploying, falling, or folding any faster

[[Page 545]]

than 12 inches/second or their dropping of an occupant in the event of a 
single failure of any load carrying component.
    (5) Platform barriers. The lift platform shall be equipped with 
barriers to prevent any of the wheels of a wheelchair or mobility aid 
from rolling off the lift during its operation. A movable barrier or 
inherent design feature shall prevent a wheelchair or mobility aid from 
rolling off the edge closest to the car until the lift is in its fully 
raised position. Each side of the lift platform which, in its raised 
position, extends beyond the car shall have a barrier a minimum 1\1/2\ 
inches high. Such barriers shall not interfere with maneuvering into or 
out of the car. The loading-edge barrier (outer barrier) which functions 
as a loading ramp when the lift is at ground or station platform level, 
shall be sufficient when raised or closed, or a supplementary system 
shall be provided, to prevent a power wheelchair or mobility aid from 
riding over or defeating it. The outer barrier of the lift shall 
automatically rise or close, or a supplementary system shall 
automatically engage, and remain raised, closed, or engaged at all times 
that the lift platform is more than 3 inches above the station platform 
and the lift is occupied. Alternatively, a barrier or system may be 
raised, lowered, opened, closed, engaged or disengaged by the lift 
operator provided an interlock or inherent design feature prevents the 
lift from rising unless the barrier is raised or closed or the 
supplementary system is engaged.
    (6) Platform surface. The lift platform surface shall be free of any 
protrusions over \1/4\ inch high and shall be slip resistant. The lift 
platform shall have a minimum clear width of 28\1/2\ inches at the 
platform, a minimum clear width of 30 inches measured from 2 inches 
above the lift platform surface to 30 inches above the surface, and a 
minimum clear length of 48 inches measured from 2 inches above the 
surface of the platform to 30 inches above the surface. (See Fig. 1)
    (7) Platform gaps. Any openings between the lift platform surface 
and the raised barriers shall not exceed \5/8\ inch wide. When the lift 
is at car floor height with the inner barrier down (if applicable) or 
retracted, gaps between the forward lift platform edge and car floor 
shall not exceed \1/2\ inch horizontally and \5/8\ inch vertically.
    (8) Platform entrance ramp. The entrance ramp, or loading-edge 
barrier used as a ramp, shall not exceed a slope of 1:8, when measured 
on level ground, for a maximum rise of 3 inches, and the transition from 
station platform to ramp may be vertical without edge treatment up to 
\1/4\ inch. Thresholds between \1/4\ inch and \1/2\ inch high shall be 
beveled with a slope no greater than 1:2.
    (9) Platform deflection. The lift platform (not including the 
entrance ramp) shall not deflect more than 3 degrees (exclusive of 
vehicle roll) in any direction between its unloaded position and its 
position when loaded with 600 pounds applied through a 26 inch by 26 
inch test pallet at the centroid of the lift platform.
    (10) Platform movement. No part of the platform shall move at a rate 
exceeding 6 inches/second during lowering and lifting an occupant, and 
shall not exceed 12 inches/second during deploying or stowing. This 
requirement does not apply to the deployment or stowage cycles of lifts 
that are manually deployed or stowed. The maximum platform horizontal 
and vertical acceleration when occupied shall be 0.3g.
    (11) Boarding direction. The lift shall permit both inboard and 
outboard facing of wheelchairs and mobility aids.
    (12) Use by standees. Lifts shall accommodate persons using walkers, 
crutches, canes or braces or who otherwise have difficulty using steps. 
The lift may be marked to indicate a preferred standing position.
    (13) Handrails. Platforms on lifts shall be equipped with handrails, 
on two sides, which move in tandem with the lift which shall be 
graspable and provide support to standees throughout the entire lift 
operation. Handrails shall have a usable component at least 8 inches 
long with the lowest portion a minimum 30 inches above the platform and 
the highest portion a maximum 38 inches above the platform. The 
handrails shall be capable of withstanding a force of 100 pounds 
concentrated at any

[[Page 546]]

point on the handrail without permanent deformation of the rail or its 
supporting structure. The handrail shall have a cross-sectional diameter 
between 1\1/4\ inches and 1\1/2\ inches or shall provide an equivalent 
grasping surface, and have eased edges with corner radii of not less 
than \1/8\ inch. Handrails shall be placed to provide a minimum 1\1/2\ 
inches knuckle clearance from the nearest adjacent surface. Handrails 
shall not interfere with wheelchair or mobility aid maneuverability when 
entering or leaving the car.
    (c) Car ramp or bridge plate--(1) Design load. Ramps or bridge 
plates 30 inches or longer shall support a load of 600 pounds, placed at 
the centroid of the ramp or bridge plate distributed over an area of 26 
inches by 26 inches, with a safety factor of at least 3 based on the 
ultimate strength of the material. Ramps or bridge plates shorter than 
30 inches shall support a load of 300 pounds.
    (2) Ramp surface. The ramp or bridge plate surface shall be 
continuous and slip resistant, shall not have protrusions from the 
surface greater than \1/4\ inch high, shall have a clear width of 30 
inches and shall accommodate both four-wheel and three-wheel mobility 
aids.
    (3) Ramp threshold. The transition from station platform to the ramp 
or bridge plate and the transition from car floor to the ramp or bridge 
plate may be vertical without edge treatment up to \1/4\ inch. Changes 
in level between \1/4\ inch and \1/2\ inch shall be beveled with a slope 
no greater than 1:2.
    (4) Ramp barriers. Each side of the ramp or bridge plate shall have 
barriers at least 2 inches high to prevent mobility aid wheels from 
slipping off.
    (5) Slope. Ramps or bridge plates shall have the least slope 
practicable. If the height of the vehicle floor, under 50% passenger 
load, from which the ramp is deployed is 3 inches or less above the 
station platform a maximum slope of 1:4 is permitted; if the height of 
the vehicle floor, under 50% passenger load, from which the ramp is 
deployed is 6 inches or less, but more than 3 inches, above the station 
platform a maximum slope of 1:6 is permitted; if the height of the 
vehicle floor, under 50% passenger load, from which the ramp is deployed 
is 9 inches or less, but more than 6 inches, above the station platform 
a maximum slope of 1:8 is permitted; if the height of the vehicle floor, 
under 50% passenger load, from which the ramp is deployed is greater 
than 9 inches above the station platform a slope of 1:12 shall be 
achieved. Folding or telescoping ramps are permitted provided they meet 
all structural requirements of this section.
    (6) Attachment--(i) Requirement. When in use for boarding or 
alighting, the ramp or bridge plate shall be attached to the vehicle, or 
otherwise prevented from moving such that it is not subject to 
displacement when loading or unloading a heavy power mobility aid and 
that any gaps between vehicle and ramp or bridge plate, and station 
platform and ramp or bridge plate, shall not exceed \5/8\ inch.
    (ii) Exception. Ramps or bridge plates which are attached to, and 
deployed from, station platforms are permitted in lieu of car devices 
provided they meet the displacement requirements of paragraph (c)(6)(i) 
of this section.
    (7) Stowage. A compartment, securement system, or other appropriate 
method shall be provided to ensure that stowed ramps or bridge plates, 
including portable ramps or bridge plates stowed in the passenger area, 
do not impinge on a passenger's wheelchair or mobility aid or pose any 
hazard to passengers in the event of a sudden stop.
    (8) Handrails. If provided, handrails shall allow persons with 
disabilities to grasp them from outside the car while starting to board, 
and to continue to use them throughout the boarding process, and shall 
have the top between 30 inches and 38 inches above the ramp surface. The 
handrails shall be capable of withstanding a force of 100 pounds 
concentrated at any point on the handrail without permanent deformation 
of the rail or its supporting structure. The handrail shall have a 
cross-sectional diameter between 1\1/4\ inches and 1\1/2\ inches or 
shall provide an equivalent grasping surface, and have eased edges with 
corner radii of not less than \1/8\ inch. Handrails shall not interfere 
with wheelchair or mobility aid maneuverability when entering or leaving 
the car.

[[Page 547]]

    (d) Mobility aid seating location. Spaces for persons who wish to 
remain in their wheelchairs or mobility aids shall have a minimum clear 
floor space 48 inches by 30 inches. Such spaces shall adjoin, and may 
overlap, an accessible path. Not more than 6 inches of the required 
clear floor space may be accommodated for footrests under another seat 
provided there is a minimum of 9 inches from the floor to the lowest 
part of the seat overhanging the space. Seating spaces may have fold-
down or removable seats to accommodate other passengers when a 
wheelchair or mobility aid user is not occupying the area, provided the 
seats, when folded up, do not obstruct the clear floor space required. 
(See Fig. 2.)

[56 FR 45756, Sept. 6, 1991, as amended at 76 FR 57939, Sept. 19, 2011]



Sec.  38.97  Interior circulation, handrails and stanchions.

    (a) Where provided, handrails or stanchions within the passenger 
compartment shall be placed to permit sufficient turning and maneuvering 
space for wheelchairs and other mobility aids to reach a seating 
location, complying with Sec.  38.95(d) of this part, from an accessible 
entrance. The diameter or width of the gripping surface of interior 
handrails and stanchions shall be 1\1/4\ inches to 1\1/2\ inches or 
shall provide an equivalent gripping surface. Handrails shall be placed 
to provide a minimum 1\1/2\ inches knuckle clearance from the nearest 
adjacent surface.
    (b) Where provided, handrails or stanchions shall be sufficient to 
permit safe boarding, on-board circulation, seating and standing 
assistance, and alighting by persons with disabilities.
    (c) At entrances equipped with steps, handrails or stanchions shall 
be provided in the entrance to the car in a configuration which allows 
passengers to grasp such assists from outside the car while starting to 
board, and to continue using such assists throughout the boarding 
process, to the extent permitted by part 231 of this title.



Sec.  38.99  Floors, steps and thresholds.

    (a) Floor surfaces on aisles, step treads, places for standees, and 
areas where wheelchair and mobility aid users are to be accommodated 
shall be slip-resistant.
    (b) All thresholds and step edges shall have a band of color(s) 
running the full width of the step or threshold which contrasts from the 
step tread and riser or adjacent floor, either light-on-dark or dark-on-
light.



Sec.  38.101  Lighting.

    (a) Any stepwell or doorway with a lift, ramp or bridge plate shall 
have, when the door is open, at least 2 footcandles of illumination 
measured on the step tread, ramp, bridge plate, or lift platform.
    (b) The doorways of cars not operating at lighted station platforms 
shall have outside lights which, when the door is open, provide at least 
1 footcandle of illumination on the station platform surface for a 
distance of 3 feet perpendicular to all points on the bottom step tread 
edge. Such lights shall be shielded to protect the eyes of entering and 
exiting passengers.



Sec.  38.103  Public information system.

    (a) Each car shall be equipped with an interior public address 
system permitting transportation system personnel, or recorded or 
digitized human speech messages, to announce stations and provide other 
passenger information. Alternative systems or devices which provide 
equivalent access are also permitted.
    (b) [Reserved]



Sec.  38.105  Priority seating signs.

    (a) Each car shall contain sign(s) which indicate that certain seats 
are priority seats for persons with disabilities and that other 
passengers should make such seats available to those who wish to use 
them.
    (b) Characters on signs required by paragraph (a) shall have a 
width-to-height ratio between 3:5 and 1:1 and a stroke width-to-height 
ratio between 1:5 and 1:10, with a minimum character height (using an 
upper case ``X'') of \5/8\ inch, with ``wide'' spacing (generally, the 
space between letters shall be \1/16\ the height of upper case letters), 
and shall contrast with the background either light-on-dark or dark-on-
light.

[[Page 548]]



Sec.  38.107  Restrooms.

    (a) If a restroom is provided for the general public, it shall be 
designed so as to allow a person using a wheelchair or mobility aid to 
enter and use such restroom as specified in paragraphs (a) (1) through 
(5) of this section.
    (1) The minimum clear floor area shall be 35 inches by 60 inches. 
Permanently installed fixtures may overlap this area a maximum of 6 
inches, if the lowest portion of the fixture is a minimum of 9 inches 
above the floor, and may overlap a maximum of 19 inches, if the lowest 
portion of the fixture is a minimum of 29 inches above the floor, 
provided such fixtures do not interfere with access to the water closet. 
Fold-down or retractable seats or shelves may overlap the clear floor 
space at a lower height provided they can be easily folded up or moved 
out of the way.
    (2) The height of the water closet shall be 17 inches to 19 inches 
measured to the top of the toilet seat. Seats shall not be sprung to 
return to a lifted position.
    (3) A grab bar at least 24 inches long shall be mounted behind the 
water closet, and a horizontal grab bar at least 40 inches long shall be 
mounted on at least one side wall, with one end not more than 12 inches 
from the back wall, at a height between 33 inches and 36 inches above 
the floor.
    (4) Faucets and flush controls shall be operable with one hand and 
shall not require tight grasping, pinching, or twisting of the wrist. 
The force required to activate controls shall be no greater than 5 lbf 
(22.2 N). Controls for flush valves shall be mounted no more than 44 
inches above the floor.
    (5) Doorways on the end of the enclosure, opposite the water closet, 
shall have a minimum clear opening width of 32 inches. Doorways on the 
side wall shall have a minimum clear opening width of 39 inches. Door 
latches and hardware shall be operable with one hand and shall not 
require tight grasping, pinching, or twisting of the wrist.
    (b) Restrooms required to be accessible shall be in close proximity 
to at least one seating location for persons using mobility aids and 
shall be connected to such a space by an unobstructed path having a 
minimum width of 32 inches.



Sec.  38.109  Between-car barriers.

    Where vehicles operate in a high-platform, level-boarding mode, and 
where between-car bellows are not provided, devices or systems shall be 
provided to prevent, deter or warn individuals from inadvertently 
stepping off the platform between cars. Appropriate devices include, but 
are not limited to, pantograph gates, chains, motion detectors or other 
suitable devices.



                Subpart F_Intercity Rail Cars and Systems



Sec.  38.111  General.

    (a) New, used and remanufactured intercity rail cars, to be 
considered accessible by regulations in part 37 of this title shall 
comply with this subpart to the extent required for each type of car as 
specified below.
    (1) Single-level rail passenger coaches and food service cars (other 
than single-level dining cars) shall comply with Sec. Sec.  38.113 
through 38.123 of this part. Compliance with Sec.  38.125 of this part 
shall be required only to the extent necessary to meet the requirements 
of paragraph (d) of this section.
    (2) Single-level dining and lounge cars shall have at least one 
connecting doorway complying with Sec.  38.113(a)(2) of this part 
connected to a car accessible to persons using wheelchairs or mobility 
aids, and at least one space complying with Sec. Sec.  38.125(d) (2) and 
(3) of this part, to provide table service to a person who wishes to 
remain in his or her wheelchair, and space to fold and store a 
wheelchair for a person who wishes to transfer to an existing seat.
    (3) Bi-level dining cars shall comply with Sec. Sec.  38.113(a)(2), 
38.115(b), 38.117(a), and 38.121 of this part.
    (4) Bi-level lounge cars shall have doors on the lower level, on 
each side of the car from which passengers board, complying with Sec.  
38.113, a restroom complying with Sec.  38.123, and at least one space 
complying with Sec.  38.125(d) (2) and (3) to provide table service to a 
person who wishes to remain in his or her wheelchair and space to fold 
and store a wheelchair for a person who wishes to transfer to an 
existing seat.
    (5) Restrooms, complying with Sec.  38.123 shall be provided in 
single-level rail

[[Page 549]]

passenger coaches and food services cars adjacent to the accessible 
seating locations required by paragraph (d) of this section. Accessible 
restrooms are required in dining and lounge cars only if restrooms are 
provided for other passengers.
    (6) Sleeper cars shall comply with Sec. Sec.  38.113 (b) through 
(d), 38.115 through 38.121, and 38.125, of this part, and have at least 
one compartment which can be entered and used by a person using a 
wheelchair or mobility aid and complying with Sec.  38.127 of this part.
    (b)(1) Unless structurally or operationally impracticable, intercity 
rail cars shall comply with Sec.  38.113(d) of this part for level 
boarding.
    (2) Where level boarding is structurally or operationally 
impracticable, intercity rail cars shall comply with Sec.  38.125.
    (c) If portions of the car are modified in a way that it affects or 
could affect accessibility, each such portion shall comply, to the 
extent practicable, with the applicable provisions of this subpart. This 
provision does not require that inaccessible cars be retrofitted with 
lifts, ramps or other boarding devices.
    (d) Passenger coaches or food service cars shall have the number of 
spaces complying with Sec.  38.125(d)(2) of this part and the number of 
spaces complying with Sec.  38.125(d)(3) of this part, as required by 
Sec.  37.91 of this title.
    (e) Existing cars retrofitted to meet the seating requirements of 
Sec.  37.91 of this title shall comply with Sec.  38.113(e), Sec.  
38.123, Sec.  38.125(d) of this part and shall have at least one door on 
each side from which passengers board complying with Sec.  38.113(d) of 
this part. Existing cars designed and manufactured to be accessible in 
accordance with the Secretary of Transportation regulations implementing 
section 504 of the Rehabilitation Act of 1973 that were in effect before 
October 7, 1991, shall comply with Sec.  38.125(a) of this part.

[56 FR 45756, Sept. 6, 1991, as amended at 76 FR 57939, Sept. 19, 2011]



Sec.  38.113  Doorways.

    (a) Clear width. (1) At least one doorway, on each side of the car 
from which passengers board, of each car required to be accessible by 
Sec.  38.111(a) and where the spaces required by Sec.  38.111(d) of this 
part are located, and at least one adjacent doorway into coach passenger 
compartments shall have a minimum clear opening width of 32 inches.
    (2) Doorways at ends of cars connecting two adjacent cars, to the 
maximum extent practicable in accordance with regulations issued under 
the Federal Railroad Safety Act of 1970 (49 CFR parts 229 and 231), 
shall have a clear opening width of 32 inches to permit wheelchair and 
mobility aid users to enter into a single-level dining car, if 
available.
    (b) Passageway. Doorways required to be accessible by paragraph (a) 
of this section shall permit access by persons using mobility aids and 
shall have an unobstructed passageway at least 32 inches wide leading to 
an accessible sleeping compartment complying with Sec.  38.127 of this 
part or seating locations complying with Sec.  38.125(d) of this part. 
In cars where such doorways require passage through a vestibule, such 
vestibule shall have a minimum width of 42 inches. (see Fig. 4)
    (c) Signals. If doors to the platform close automatically or from a 
remote location, auditory and visual warning signals shall be provided 
to alert passengers of closing doors.
    (d) Coordination with boarding platforms--(1) Requirements. Cars 
which provide level-boarding in stations with high platforms shall be 
coordinated with the boarding platform or mini-high platform design such 
that the horizontal gap between a car at rest and the platform shall be 
no greater than 3 inches and the height of the car floor shall be within 
plus or minus \5/8\ inch of the platform height. Vertical alignment may 
be accomplished by car air suspension, platform lifts or other devices, 
or any combination.
    (2) Exception. New cars operating in existing stations may have a 
floor height within plus or minus 1\1/2\ inches of the platform height.
    (3) Exception. Where platform set-backs do not allow the horizontal 
gap or vertical alignment specified in paragraph (d) (1) or (2), 
platform or portable lifts complying with Sec.  38.125(b) of this part, 
or car or platform bridge plates, complying with Sec.  38.125(c) of this 
part,

[[Page 550]]

may be provided ensuring compliance with section 37.42, where 
applicable.
    (4) Exception. Retrofitted vehicles shall be coordinated with the 
platform in existing stations such that the horizontal gap shall be no 
greater than 4 inches and the height of the vehicle floor, under 50% 
passenger load, shall be within plus or minus 2 inches of the platform 
height.
    (e) Signage. The International Symbol of Accessibility shall be 
displayed on the exterior of all doors complying with this section 
unless all cars and doors are accessible and are not marked by the 
access symbol (see fig. 6). Appropriate signage shall also indicate 
which accessible doors are adjacent to an accessible restroom, if 
applicable.

[56 FR 45756, Sept. 6, 1991, as amended at 58 FR 63103, Nov. 30, 1993; 
76 FR 57939, Sept. 19, 2011]



Sec.  38.115  Interior circulation, handrails and stanchions.

    (a) Where provided, handrails or stanchions within the passenger 
compartment shall be placed to permit sufficient turning and maneuvering 
space for wheelchairs and other mobility aids to reach a seating 
location, complying with Sec.  38.125(d) of this part, from an 
accessible entrance. The diameter or width of the gripping surface of 
interior handrails and stanchions shall be 1\1/4\ inches to 1\1/2\ 
inches or shall provide an equivalent gripping surface. Handrails shall 
be placed to provide a minimum 1\1/2\ inches knuckle clearance from the 
nearest adjacent surface.
    (b) Where provided, handrails and stanchions shall be sufficient to 
permit safe boarding, on-board circulation, seating and standing 
assistance, and alighting by persons with disabilities.
    (c) At entrances equipped with steps, handrails or stanchions shall 
be provided in the entrance to the car in a configuration which allows 
passengers to grasp such assists from outside the car while starting to 
board, and to continue using such assists throughout the boarding 
process, to the extent permitted by part 231 of this title.



Sec.  38.117  Floors, steps and thresholds.

    (a) Floor surfaces on aisles, step treads and areas where wheelchair 
and mobility aid users are to be accommodated shall be slip-resistant.
    (b) All step edges and thresholds shall have a band of color(s) 
running the full width of the step or threshold which contrasts from the 
step tread and riser or adjacent floor, either light-on-dark or dark-on-
light.



Sec.  38.119  Lighting.

    (a) Any stepwell, or doorway with a lift, ramp or bridge plate, 
shall have, when the door is open, at least 2 foot-candles of 
illumination measured on the step tread, ramp, bridge plate or lift 
platform.
    (b) The doorways of cars not operating at lighted station platforms 
shall have outside lights which, when the door is open, provide at least 
1 foot-candle of illumination on the station platform surface for a 
distance of 3 feet perpendicular to all points on the bottom step tread 
edge. Such lights shall be shielded to protect the eyes of entering and 
exiting passengers.



Sec.  38.121  Public information system.

    (a) Each car shall be equipped with a public address system 
permitting transportation system personnel, or recorded or digitized 
human speech messages, to announce stations and provide other passenger 
information. Alternative systems or devices which provide equivalent 
access are also permitted.
    (b) [Reserved]



Sec.  38.123  Restrooms.

    (a) If a restroom is provided for the general public, and an 
accessible restroom is required by Sec.  38.111 (a) and (e) of this 
part, it shall be designed so as to allow a person using a wheelchair or 
mobility aid to enter and use such restroom as specified in paragraphs 
(a) (1) through (5) of this section.
    (1) The minimum clear floor area shall be 35 inches by 60 inches. 
Permanently installed fixtures may overlap this area a maximum of 6 
inches, if the lowest portion of the fixture is a minimum of 9 inches 
above the floor, and may overlap a maximum of 19 inches, if the lowest 
portion of the fixture is a minimum of 29 inches above the floor. 
Fixtures shall not interfere with access to and use of the water closet. 
Fold-

[[Page 551]]

down or retractable seats or shelves may overlap the clear floor space 
at a lower height provided they can be easily folded up or moved out of 
the way.
    (2) The height of the water closet shall be 17 inches to 19 inches 
measured to the top of the toilet seat. Seats shall not be sprung to 
return to a lifted position.
    (3) A grab bar at least 24 inches long shall be mounted behind the 
water closet, and a horizontal grab bar at least 40 inches long shall be 
mounted on at least one side wall, with one end not more than 12 inches 
from the back wall, at a height between 33 inches and 36 inches above 
the floor.
    (4) Faucets and flush controls shall be operable with one hand and 
shall not require tight grasping, pinching, or twisting of the wrist. 
The force required to activate controls shall be no greater than 5 lbf 
(22.2 N). Controls for flush valves shall be mounted no more than 44 
inches above the floor.
    (5) Doorways on the end of the enclosure, opposite the water closet, 
shall have a minimum clear opening width of 32 inches. Doorways on the 
side wall shall have a minimum clear opening width of 39 inches. Door 
latches and hardware shall be operable with one hand and shall not 
require tight grasping, pinching, or twisting of the wrist.
    (b) Restrooms required to be accessible shall be in close proximity 
to at least one seating location for persons using mobility aids 
complying with Sec.  38.125(d) of this part and shall be connected to 
such a space by an unobstructed path having a minimum width of 32 
inches.



Sec.  38.125  Mobility aid accessibility.

    (a)(1) General. All intercity rail cars, other than level entry 
cars, required to be accessible by Sec. Sec.  38.111 (a) and (e) of this 
subpart shall provide a level-change mechanism or boarding device (e.g., 
lift, ramp or bridge plate) complying with either paragraph (b) or (c) 
of this section and sufficient clearances to permit a wheelchair or 
other mobility aid user to reach a seating location complying with 
paragraph (d) of this section.
    (2) Exception. If level-entry boarding, portable or platform lifts, 
ramps or bridge plates meeting the applicable requirements of this 
section are provided on station platforms or other stops required to be 
accessible, or mini-high platforms complying with Sec.  38.113(d) are 
provided, the car is not required to be equipped with a car-borne 
device. The access systems or devices used at a station to which section 
37.42 applies must permit compliance with that section.
    (b) Car Lift--(1) Design load. The design load of the lift shall be 
at least 600 pounds. Working parts, such as cables, pulleys, and shafts, 
which can be expected to wear, and upon which the lift depends for 
support of the load, shall have a safety factor of at least six, based 
on the ultimate strength of the material. Nonworking parts, such as 
platform, frame, and attachment hardware which would not be expected to 
wear, shall have a safety factor of at least three, based on the 
ultimate strength of the material.
    (2) Controls--(i) Requirements. The controls shall be interlocked 
with the car brakes, propulsion system, or door, or shall provide other 
appropriate mechanisms or systems, to ensure that the car cannot be 
moved when the lift is not stowed and so the lift cannot be deployed 
unless the interlocks or systems are engaged. The lift shall deploy to 
all platform levels normally encountered in the operating environment. 
Where provided, each control for deploying, lowering, raising, and 
stowing the lift and lowering the roll-off barrier shall be of a 
monetary contact type requiring continuous manual pressure by the 
operator and shall not allow improper lift sequencing when the lift 
platform is occupied. The controls shall allow reversal of the lift 
operation sequence, such as raising or lowering a platform that is part 
way down, without allowing an occupied platform to fold or retract into 
the stowed position.
    (ii) Exception. Where physical or safety constraints prevent the 
deployment at some stops of a lift having its long dimension 
perpendicular to the car axis, the transportation entity may specify a 
lift which is designed to deploy with its long dimension parallel to the 
car axis and which pivots into or

[[Page 552]]

out of the car while occupied (i.e., ``rotary lift''). The requirements 
of paragraph (b)(2)(i) of this section prohibiting the lift from being 
stowed while occupied shall not apply to a lift design of this type if 
the stowed position is within the passenger compartment and the lift is 
intended to be stowed while occupied.
    (iii) Exception. The brake or propulsion system interlocks 
requirement does not apply to platform mounted or portable lifts 
provided that a mechanical, electrical or other system operates to 
ensure that cars do not move when the lift is in use.
    (3) Emergency operation. The lift shall incorporate an emergency 
method of deploying, lowering to ground or station platform level with a 
lift occupant, and raising and stowing the empty lift if the power to 
the lift fails. No emergency method, manual or otherwise, shall be 
capable of being operated in a manner that could be hazardous to the 
lift occupant or to the operator when operated according to 
manufacturer's instructions, and shall not permit the platform to be 
stowed or folded when occupied, unless the lift is a rotary lift and is 
intended to be stowed while occupied.
    (4) Power or equipment failure. Platforms stowed in a vertical 
position, and deployed platforms when occupied, shall have provisions to 
prevent their deploying, falling, or folding any faster than 12 inches/
second or their dropping of an occupant in the event of a single failure 
of any load carrying component.
    (5) Platform barriers. The lift platform shall be equipped with 
barriers to prevent any of the wheels of a wheelchair or mobility aid 
from rolling off the lift during its operation. A movable barrier or 
inherent design feature shall prevent a wheelchair or mobility aid from 
rolling off the edge closest to the car until the lift is in its fully 
raised position. Each side of the lift platform which, in its raised 
position, extends beyond the car shall have a barrier a minimum 1\1/2\ 
inches high. Such barriers shall not interfere with maneuvering into or 
out of the car. The loading-edge barrier (outer barrier) which functions 
as a loading ramp when the lift is at ground or station platform level, 
shall be sufficient when raised or closed, or a supplementary system 
shall be provided, to prevent a power wheelchair or mobility aid from 
riding over or defeating it. The outer barrier of the lift shall 
automatically rise or close, or a supplementary system shall 
automatically engage, and remain raised, closed, or engaged at all times 
that the lift platform is more than 3 inches above the station platform 
and the lift is occupied. Alternatively, a barrier or system may be 
raised, lowered, opened, closed, engaged or disengaged by the lift 
operator provided an interlock or inherent design feature prevents the 
lift from rising unless the barrier is raised or closed or the 
supplementary system is engaged.
    (6) Platform surface. The lift platform surface shall be free of any 
protrusions over \1/4\ inch high and shall be slip resistant. The lift 
platform shall have a minimum clear width of 28\1/2\ inches at the 
platform, a minimum clear width of 30 inches measured from 2 inches 
above the lift platform surface to 30 inches above the surface, and a 
minimum clear length of 48 inches measured from 2 inches above the 
surface of the platform to 30 inches above the surface. (See Fig. 1.)
    (7) Platform gaps. Any openings between the lift platform surface 
and the raised barriers shall not exceed \5/8\ inch wide. When the lift 
is at car floor height with the inner barrier (if applicable) down or 
retracted, gaps between the forward lift platform edge and car floor 
shall not exceed \1/2\ inch horizontally and \5/8\ inch vertically.
    (8) Platform entrance ramp. The entrance ramp, or loading-edge 
barrier used as a ramp, shall not exceed a slope of 1:8, when measured 
on level ground, for a maximum rise of 3 inches, and the transition from 
station platform to ramp may be vertical without edge treatment up to 
\1/4\ inch. Thresholds between \1/4\ inch and \1/2\ inch high shall be 
beveled with a slope no greater than 1:2.
    (9) Platform deflection. The lift platform (not including the 
entrance ramp) shall not deflect more than 3 degrees (exclusive of car 
roll) in any direction between its unloaded position and its position 
when loaded with 600 pounds applied through a 26 inch by 26 inch

[[Page 553]]

test pallet at the centroid of the lift platform.
    (10) Platform movement. No part of the platform shall move at a rate 
exceeding 6 inches/second during lowering and lifting an occupant, and 
shall not exceed 12 inches/second during deploying or stowing. This 
requirement does not apply to the deployment or stowage cycles of lifts 
that are manually deployed or stowed. The maximum platform horizontal 
and vertical acceleration when occupied shall be 0.3g.
    (11) Boarding direction. The lift shall permit both inboard and 
outboard facing of wheelchairs and mobility aids.
    (12) Use by standees. Lifts shall accommodate persons using walkers, 
crutches, canes or braces or who otherwise have difficulty using steps. 
The lift may be marked to indicate a preferred standing position.
    (13) Handrails. Platforms on lifts shall be equipped with handrails, 
on two sides, which move in tandem with the lift, and which shall be 
graspable and provide support to standees throughout the entire lift 
operation. Handrails shall have a usable component at least 8 inches 
long with the lowest portion a minimum 30 inches above the platform and 
the highest portion a maximum 38 inches above the platform. The 
handrails shall be capable of withstanding a force of 100 pounds 
concentrated at any point on the handrail without permanent deformation 
of the rail or its supporting structure. The handrail shall have a 
cross-sectional diameter between 1\1/4\ inches and 1\1/2\ inches or 
shall provide an equivalent grasping surface, and have eased edges with 
corner radii of not less than \1/8\ inch. Handrails shall be placed to 
provide a minimum 1\1/2\ inches knuckle clearance from the nearest 
adjacent surface. Handrails shall not interfere with wheelchair or 
mobility aid maneuverability when entering or leaving the car.
    (c) Car ramp or bridge plate--(1) Design load. Ramps or bridge 
plates 30 inches or longer shall support a load of 600 pounds, placed at 
the centroid of the ramp or bridge plate distributed over an area of 26 
inches by 26 inches, with a safety factor of at least 3 based on the 
ultimate strength of the material. Ramps or bridge plates shorter than 
30 inches shall support a load of 300 pounds.
    (2) Ramp surface. The ramp or bridge plate surface shall be 
continuous and slip resistant, shall not have protrusions from the 
surface greater than \1/4\ inch high, shall have a clear width of 30 
inches and shall accommodate both four-wheel and three-wheel mobility 
aids.
    (3) Ramp threshold. The transition from station platform to the ramp 
or bridge plate and the transition from car floor to the ramp or bridge 
plate may be vertical without edge treatment up to \1/4\ inch. Changes 
in level between \1/4\ inch and \1/2\ inch shall be beveled with a slope 
no greater than 1:2.
    (4) Ramp barriers. Each side of the ramp or bridge plate shall have 
barriers at least 2 inches high to prevent mobility aid wheels from 
slipping off.
    (5) Slope. Ramps or bridge plates shall have the least slope 
practicable. If the height of the vehicle floor, under 50% passenger 
load, from which the ramp is deployed is 3 inches or less above the 
station platform a maximum slope of 1:4 is permitted; if the height of 
the vehicle floor, under 50% passenger load, from which the ramp is 
deployed is 6 inches or less, but more than 3 inches, above the station 
platform a maximum slope of 1:6 is permitted; if the height of the 
vehicle floor, under 50% passenger load, from which the ramp is deployed 
is 9 inches or less, but more than 6 inches, above the station platform 
a maximum slope of 1:8 is permitted; if the height of the vehicle floor, 
under 50% passenger load, from which the ramp is deployed is greater 
than 9 inches above the station platform a slope of 1:12 shall be 
achieved. Folding or telescoping ramps are permitted provided they meet 
all structural requirements of this section.
    (6) Attachment--(i) Requirement. When in use for boarding or 
alighting, the ramp or bridge plate shall be attached to the vehicle, or 
otherwise prevented from moving such that it is not subject to 
displacement when loading or unloading a heavy power mobility aid and 
that any gaps between vehicle and ramp or bridge plate, and station 
platform and ramp or bridge plate, shall not exceed \5/8\ inch.

[[Page 554]]

    (ii) Exception. Ramps or bridge plates which are attached to, and 
deployed from, station platforms are permitted in lieu of car devices 
provided they meet the displacement requirements of paragraph (c)(6)(i) 
of this section.
    (7) Stowage. A compartment, securement system, or other appropriate 
method shall be provided to ensure that stowed ramps or bridge plates, 
including portable ramps or bridge plates stowed in the passenger area, 
do not impinge on a passenger's wheelchair or mobility aid or pose any 
hazard to passengers in the event of a sudden stop.
    (8) Handrails. If provided, handrails shall allow persons with 
disabilities to grasp them from outside the car while starting to board, 
and to continue to use them throughout the boarding process, and shall 
have the top between 30 inches and 38 inches above the ramp surface. The 
handrails shall be capable of withstanding a force of 100 pounds 
concentrated at any point on the handrail without permanent deformation 
of the rail or its supporting structure. The handrail shall have a 
cross-sectional diameter between 1\1/4\ inches and 1\1/2\ inches or 
shall provide an equivalent grasping surface, and have eased edges with 
corner radii of not less than \1/8\ inch. Handrails shall not interfere 
with wheelchair or mobility aid maneuverability when entering or leaving 
the car.
    (d) Seating--(1) Requirements. All intercity rail cars required to 
be accessible by Sec. Sec.  38.111 (a) and (e) of this subpart shall 
provide at least one, but not more than two, mobility aid seating 
location(s) complying with paragraph (d)(2) of this section; and at 
least one, but not more than two, seating location(s) complying with 
paragraph (d)(3) of this section which adjoin or overlap an accessible 
route with a minimum clear width of 32 inches.
    (2) Wheelchair or mobility aid spaces. Spaces for persons who wish 
to remain in their wheelchairs or mobility aids shall have a minimum 
clear floor space 48 inches by 30 inches. Such spaces shall adjoin, and 
may overlap, an accessible path. Not more than 6 inches of the required 
clear floor space may be accommodated for footrests under another seat 
provided there is a minimum of 9 inches from the floor to the lowest 
part of the seat overhanging the space. Seating spaces may have fold-
down or removable seats to accommodate other passengers when a 
wheelchair or mobility aid user is not occupying the area, provided the 
seats, when folded up, do not obstruct the clear floor space provided 
(See Fig. 2).
    (3) Other spaces. Spaces for individuals who wish to transfer shall 
include a regular coach seat or dining car booth or table seat and space 
to fold and store the passenger's wheelchair.

[56 FR 45756, Sept. 6, 1991, as amended at 58 FR 63103, Nov. 30, 1993; 
76 FR 57939, Sept. 19, 2011]



Sec.  38.127  Sleeping compartments.

    (a) Sleeping compartments required to be accessible shall be 
designed so as to allow a person using a wheelchair or mobility aid to 
enter, maneuver within and approach and use each element within such 
compartment. (See Fig. 5.)
    (b) Each accessible compartment shall contain a restroom complying 
with Sec.  38.123(a) which can be entered directly from such 
compartment.
    (c) Controls and operating mechanisms (e.g., heating and air 
conditioning controls, lighting controls, call buttons, electrical 
outlets, etc.) shall be mounted no more than 48 inches, and no less than 
15 inches, above the floor and shall have a clear floor area directly in 
front a minimum of 30 inches by 48 inches. Controls and operating 
mechanisms shall be operable with one hand and shall not require tight 
grasping, pinching, or twisting of the wrist.



                Subpart G_Over-the-Road Buses and Systems



Sec.  38.151  General.

    (a) New, used and remanufactured over-the-road buses, to be 
considered accessible by regulations in part 37 of this title, shall 
comply with this subpart.
    (b) Over-the-road buses covered by Sec.  37.7 (c) of this title 
shall comply with Sec.  38.23 and this subpart.



Sec.  38.153  Doors, steps and thresholds.

    (a) Floor surfaces on aisles, step treads and areas where wheelchair 
and

[[Page 555]]

mobility aid users are to be accommodated shall be slip-resistant.
    (b) All step edges shall have a band of color(s) running the full 
width of the step which contrasts from the step tread and riser, either 
dark-on-light or light-on-dark.
    (c)(1) Doors shall have a minimum clear width when open of 30 inches 
(760 mm), measured from the lowest step to a height of at least 48 
inches (1220 mm), from which point they may taper to a minimum width of 
18 inches (457 mm). The clear width may be reduced by a maximum of 4 
inches (100 mm) by protrusions of hinges or other operating mechanisms.
    (2) Exception. Where compliance with the door width requirement of 
paragraph (c)(1) of this section is not feasible, the minimum door width 
shall be 27 in (685 mm).
    (d) The overhead clearance between the top of the lift door opening 
and the sill shall be the maximum practicable but not less than 65 
inches (1651 mm).

[56 FR 45756, Sept. 6, 1991, as amended at 63 FR 51698, 51702, Sept. 28, 
1998]



Sec.  38.155  Interior circulation, handrails and stanchions.

    (a) Handrails and stanchions shall be provided in the entrance to 
the vehicle in a configuration which allows passengers to grasp such 
assists from outside the vehicle while starting to board, and to 
continue using such handrails or stanchions throughout the boarding 
process. Handrails shall have a cross-sectional diameter between 1\1/4\ 
inches and 1\1/2\ inches or shall provide an equivalent grasping 
surface, and have eased edges with corner radii of not less than \1/8\ 
inch. Handrails shall be placed to provide a minimum 1\1/2\ inches 
knuckle clearance from the nearest adjacent surface. Where on-board fare 
collection devices are used, a horizontal passenger assist shall be 
located between boarding passengers and the fare collection device and 
shall prevent passengers from sustaining injuries on the fare collection 
device or windshield in the event of a sudden deceleration. Without 
restricting the vestibule space, the assist shall provide support for a 
boarding passenger from the door through the boarding procedure. 
Passengers shall be able to lean against the assist for security while 
paying fares.
    (b) Where provided within passenger compartments, handrails or 
stanchions shall be sufficient to permit safe on-board circulation, 
seating and standing assistance, and alighting by persons with 
disabilities.



Sec.  38.157  Lighting.

    (a) Any stepwell or doorway immediately adjacent to the driver shall 
have, when the door is open, at least 2 foot-candles of illumination 
measured on the step tread.
    (b) The vehicle doorway shall have outside light(s) which, when the 
door is open, provide at least 1 foot-candle of illumination on the 
pathway to the door for a distance of 3 feet (915 mm) to the bottom step 
tread or lift outer edge. Such light(s) shall be shielded to protect the 
eyes of entering and exiting passengers.

[56 FR 45756, Sept. 6, 1991, as amended at 63 FR 51698, 51702, Sept. 28, 
1998]



Sec.  38.159  Mobility aid accessibility.

    (a)(1) General. All vehicles covered by this subpart shall provide a 
level-change mechanism or boarding device (e.g., lift or ramp) complying 
with paragraph (b) or (c) of this section and sufficient clearances to 
permit a wheelchair or other mobility aid user to reach a securement 
location. At least two securement locations and devices, complying with 
paragraph (d) of this section, shall be provided.
    (2) Exception. If portable or station-based lifts, ramps or bridge 
plates meeting the applicable requirements of this section are provided 
at stations or other stops required to be accessible under regulations 
issued by the Department of Transportation, the bus is not required to 
be equipped with a vehicle-borne device.
    (b) Vehicle lift--(1) Design load. The design load of the lift shall 
be at least 600 pounds (2665 N). Working parts, such as cables, pulleys, 
and shafts, which can be expected to wear, and upon which the lift 
depends for support of the load, shall have a safety factor of at least 
six, based on the ultimate strength of the material. Nonworking parts, 
such as platform, frame and attachment hardware which would not be

[[Page 556]]

expected to wear, shall have a safety factor of at least three, based on 
the ultimate strength of the material.
    (2) Controls--(i) Requirements. The controls shall be interlocked 
with the vehicle brakes, transmission, or door, or shall provide other 
appropriate mechanisms or systems, to ensure that the vehicle cannot be 
moved when the lift is not stowed and so the lift cannot be deployed 
unless the interlocks or systems are engaged. The lift shall deploy to 
all levels (i.e., ground, curb, and intermediate positions) normally 
encountered in the operating environment. Where provided, each control 
for deploying, lowering, raising, and stowing the lift and lowering the 
roll-off barrier shall be of a momentary contact type requiring 
continuous manual pressure by the operator and shall not allow improper 
lift sequencing when the lift platform is occupied. The controls shall 
allow reversal of the lift operation sequence, such as raising or 
lowering a platform that is part way down, without allowing an occupied 
platform to fold or retract into the stowed position.
    (ii) Exception. Where the lift is designed to deploy with its long 
dimension parallel to the vehicle axis and which pivots into or out of 
the vehicle while occupied (i.e., ``rotary lift''), the requirements of 
this paragraph (b)(2) prohibiting the lift from being stowed while 
occupied shall not apply if the stowed position is within the passenger 
compartment and the lift is intended to be stowed while occupied.
    (3) Emergency operation. The lift shall incorporate an emergency 
method of deploying, lowering to ground level with a lift occupant, and 
raising and stowing the empty lift if the power to the lift fails. No 
emergency method, manual or otherwise, shall be capable of being 
operated in a manner that could be hazardous to the lift occupant or to 
the operator when operated according to manufacturer's instructions, and 
shall not permit the platform to be stowed or folded when occupied, 
unless the lift is a rotary lift and is intended to be stowed while 
occupied.
    (4) Power or equipment failure. Platforms stowed in a vertical 
position, and deployed platforms when occupied, shall have provisions to 
prevent their deploying, falling, or folding any faster than 12 inches/
second (305 mm/sec) or their dropping of an occupant in the event of a 
single failure of any load carrying component.
    (5) Platform barriers. The lift platform shall be equipped with 
barriers to prevent any of the wheels of a wheelchair or mobility aid 
from rolling off the platform during its operation. A movable barrier or 
inherent design feature shall prevent a wheelchair or mobility aid from 
rolling off the edge closest to the vehicle until the platform is in its 
fully raised position. Each side of the lift platform which extends 
beyond the vehicle in its raised position shall have a barrier a minimum 
1\1/2\ inches (13 mm) high. Such barriers shall not interfere with 
maneuvering into or out of the aisle. The loading-edge barrier (outer 
barrier) which functions as a loading ramp when the lift is at ground 
level, shall be sufficient when raised or closed, or a supplementary 
system shall be provided, to prevent a power wheelchair or mobility aid 
from riding over or defeating it. The outer barrier of the lift shall 
automatically raise or close, or a supplementary system shall 
automatically engage, and remain raised, closed, or engaged at all times 
that the platform is more than 3 inches (75 mm) above the roadway or 
sidewalk and the platform is occupied. Alternatively, a barrier or 
system may be raised, lowered, opened, closed, engaged, or disengaged by 
the lift operator, provided an interlock or inherent design feature 
prevents the lift from rising unless the barrier is raised or closed or 
the supplementary system is engaged.
    (6) Platform surface. The platform surface shall be free of any 
protrusions of \1/4\ inch (6.5 mm) high and shall be slip resistant. The 
platform shall have a minimum clear width of 28\1/2\ inches (725 mm) at 
the platform, a minimum clear width of 30 inches (760 mm) measured from 
2 inches (50 mm) above the platform surface to 30 inches (760 mm) above 
the platform, and a minimum clear length of 48 inches (1220 mm) measured 
from 2 inches (50 mm) above the surface of the platform to 30 inches 
(760 mm) above the surface of the platform. (See Figure 1 to this part.)

[[Page 557]]

    (7) Platform gaps. Any openings between the platform surface and the 
raised barriers shall not exceed \5/8\ inch (16 mm) in width. When the 
platform is at vehicle floor height with the inner barrier (if 
applicable) down or retracted, gaps between the forward lift platform 
edge and the vehicle floor shall not exceed \1/2\ inch (13 mm) 
horizontally and \5/8\ inch (16 mm) vertically. Platforms on semi-
automatic lifts may have a hand hold not exceeding 1\1/2\ inches (28 mm) 
by 4\1/2\ inches (113 mm) located between the edge barriers.
    (8) Platform entrance ramp. The entrance ramp, or loading-edge 
barrier used as a ramp, shall not exceed a slope of 1:8, measured on 
level ground, for a maximum rise of 3 inches (75 mm), and the transition 
from roadway or sidewalk to ramp may be vertical without edge treatment 
up to \1/4\ inch (6.5 mm) . Thresholds between \1/4\ inch (6.5 mm) and 
\1/2\ inch (13 mm) high shall be beveled with a slope no greater than 
1:2.
    (9) Platform deflection. The lift platform (not including the 
entrance ramp) shall not deflect more than 3 degrees (exclusive of 
vehicle roll or pitch) in any direction between its unloaded position 
and its position when loaded with 600 pounds (2665 N) applied through a 
26 inch (660 mm) by 26 inch test pallet at the centroid of the platform.
    (10) Platform movement. No part of the platform shall move at a rate 
exceeding 6 inches/second (150 mm/sec) during lowering and lifting an 
occupant, and shall not exceed 12 inches/second (300 mm/sec) during 
deploying or stowing. This requirement does not apply to the deployment 
or stowage cycles of lifts that are manually deployed or stowed. The 
maximum platform horizontal and vertical acceleration when occupied 
shall be 0.3g.
    (11) Boarding direction. The lift shall permit both inboard and 
outboard facing of wheelchair and mobility aid users.
    (12) Use by standees. Lifts shall accommodate persons using walkers, 
crutches, canes or braces or who otherwise have difficulty using steps. 
The platform may be marked to indicate a preferred standing position.
    (13) Handrails. Platforms on lifts shall be equipped with handrails 
on two sides, which move in tandem with the lift, and which shall be 
graspable and provide support to standees throughout the entire lift 
operation. Handrails shall have a usable component at least 8 inches 
(200 mm) long with the lowest portion a minimum 30 inches (760 mm) above 
the platform and the highest portion a maximum 38 inches (965 mm) above 
the platform. The handrails shall be capable of withstanding a force of 
100 pounds (445 N) concentrated at any point on the handrail without 
permanent deformation of the rail or its supporting structure. The 
handrail shall have a cross-sectional diameter between 1\1/4\ inches (32 
mm) and 1\1/2\ inches (38 mm) or shall provide an equivalent grasping 
surface, and have eased edges with corner radii of not less than \5/8\ 
inch (3.5 mm). Handrails shall be placed to provide a minimum 1\1/2\ 
inches (38 mm) knuckle clearance from the nearest adjacent surface. 
Handrails shall not interfere with wheelchair or mobility aid 
maneuverability when entering or leaving the vehicle.
    (c) Vehicle ramp--(1) Design load. Ramps 30 inches (760 mm) or 
longer shall support a load of 600 pounds (2665 N), placed at the 
centroid of the ramp distributed over an area of 26 inches by 26 inches 
(660 mm by 660 mm), with a safety factor of at least 3 based on the 
ultimate strength of the material. Ramps shorter than 30 inches (760 mm) 
shall support a load of 300 pounds (1332 N).
    (2) Ramp surface. The ramp surface shall be continuous and slip 
resistant; shall not have protrusions from the surface greater than \1/
4\ inch (6.5 mm) high; shall have a clear width of 30 inches (760 mm); 
and shall accommodate both four-wheel and three-wheel mobility aids.
    (3) Ramp threshold. The transition from roadway or sidewalk and the 
transition from vehicle floor to the ramp may be vertical without edge 
treatment up to \1/4\ inch (6.5 mm). Changes in level between \1/4\ inch 
(6.5 mm) and \1/2\ inch (13 mm) shall be beveled with a slope no greater 
than 1:2.
    (4) Ramp barriers. Each side of the ramp shall have barriers at 
least 2 inches (50 mm) high to prevent mobility aid wheels from slipping 
off.

[[Page 558]]

    (5) Slope. Ramps shall have the least slope practicable and shall 
not exceed 1:4 when deployed to ground level. If the height of the 
vehicle floor from which the ramp is deployed is 3 inches (75 mm) or 
less above a 6 inch (150 mm) curb, a maximum slope of 1:4 is permitted; 
if the height of the vehicle floor from which the ramp is deployed is 6 
inches (150 mm) or less, but greater than 3 inches (75 mm), above a 6 
inch (150 mm) curb, a maximum slope of 1:6 is permitted; if the height 
of the vehicle floor from which the ramp is deployed is 9 inches (225 
mm) or less, but greater than 6 inches (150 mm), above a 6 inch curb, a 
maximum slope of 1:8 is permitted; if the height of the vehicle floor 
from which the ramp is deployed is greater than 9 inches (225 mm) above 
a 6 inch (150 mm) curb, a slope of 1:12 shall be achieved. Folding or 
telescoping ramps are permitted provided they meet all structural 
requirements of this section.
    (6) Attachment. When in use for boarding or alighting, the ramp 
shall be firmly attached to the vehicle so that it is not subject to 
displacement when loading or unloading a heavy power mobility aid and 
that no gap between vehicle and ramp exceeds \5/8\ inch (16 mm).
    (7) Stowage. A compartment, securement system, or other appropriate 
method shall be provided to ensure that stowed ramps, including portable 
ramps stowed in the passenger area, do not impinge on a passenger's 
wheelchair or mobility aid or pose any hazard to passengers in the event 
of a sudden stop or maneuver.
    (8) Handrails. If provided, handrails shall allow persons with 
disabilities to grasp them from outside the vehicle while starting to 
board, and to continue to use them throughout the boarding process, and 
shall have the top between 30 inches (760 mm) above the ramp surface. 
The handrails shall be capable of withstanding a force of 100 pounds 
(445 N) concentrated at any point on the handrail without permanent 
deformation of the rail or its supporting structure. The handrail shall 
have a cross-sectional diameter between 1\1/4\ inches (32 mm) and 1\1/2\ 
inches (38 mm) or shall provide an equivalent grasping surface, and have 
eased edges with corner radii of not less than \1/8\ inch (3.5 mm). 
Handrails shall not interfere with wheelchair or mobility aid 
maneuverability when entering or leaving the vehicle.
    (d) Securement devices--(1) Design load. Securement systems, and 
their attachments to vehicles, shall restrain a force in the forward 
longitudinal direction of up to 2,000 pounds (8,880 N) per securement 
leg or clamping mechanism and a minimum of 4,000 pounds (17,760 N) for 
each mobility aid.
    (2) Location and size. The securement system shall be placed as near 
to the accessible entrance as practicable and shall have a clear floor 
area of 30 inches (760 mm) by 48 inches (1220 mm). Such space shall 
adjoin, and may overlap, an access path. Not more than 6 inches (150 mm) 
of the required clear floor space may be accommodated for footrests 
under another seat, modesty panel, or other fixed element provided there 
is a minimum of 9 inches (230 mm) from the floor to the lowest part of 
the seat overhanging the space. Securement areas may have fold-down 
seats to accommodate other passengers when a wheelchair or mobility aid 
is not occupying the area, provided the seats, when folded up, do not 
obstruct the clear floor space required. (See Figure 2 to this part.)
    (3) Mobility aids accommodated. The securement system shall secure 
common wheelchairs and mobility aids and shall either be automatic or 
easily attached by a person familiar with the system and mobility aid 
and having average dexterity.
    (4) Orientation. At least one securement device or system required 
by paragraph (a) of this section shall secure the wheelchair or mobility 
aid facing toward the front of the vehicle. Additional securement 
devices or systems shall secure the wheelchair or mobility aid facing 
forward or rearward. Where the wheelchair or mobility aid is secured 
facing the rear of the vehicle, a padded barrier shall be provided. The 
padded barrier shall extend from a height of 38 inches (965 mm) from the 
vehicle floor to a height of 56 inches (1420 mm) from the vehicle floor 
with a width of 18 inches (455 mm), laterally centered immediately in 
back of the seated individual. Such barriers

[[Page 559]]

need not be solid provided equivalent protection is afforded.
    (5) Movement. When the wheelchair or mobility aid is secured in 
accordance with manufacturer's instructions, the securement system shall 
limit the movement of an occupied wheelchair or mobility aid to no more 
than 2 inches (50 mm) in any direction under normal vehicle operating 
conditions.
    (6) Stowage. When not being used for securement, or when the 
securement area can be used by standees, the securement system shall not 
interfere with passenger movement, shall not present any hazardous 
condition, shall be reasonably protected from vandalism, and shall be 
readily accessed when needed for use.
    (7) Seat belt and shoulder harness. For each wheelchair or mobility 
aid securement device provided, a passenger seat belt and shoulder 
harness, complying with all applicable provisions of the Federal Motor 
Vehicle Safety Standards (49 CFR part 571), shall also be provided for 
use by wheelchair or mobility aid users. Such seat belts and shoulder 
harnesses shall not be used in lieu of a device which secures the 
wheelchair or mobility aid itself.

[63 FR 51698, 51703, Sept. 28, 1998]



Sec.  38.161  Moveable aisle armrests.

    A minimum of 50% of aisle seats, including all moveable or removable 
seats at wheelchair or mobility aide securement locations, shall have an 
armrest on the aisle side which can be raised, removed, or retracted to 
permit easy entry or exit.

[63 FR 51700, 51703, Sept. 28, 1998]



                  Subpart H_Other Vehicles and Systems



Sec.  38.171  General.

    (a) New, used and remanufactured vehicles and conveyances for 
systems not covered by other subparts of this part, to be considered 
accessible by regulations in part 37 of this title shall comply with 
this subpart.
    (b) If portions of the vehicle or conveyance are modified in a way 
that affects or could affect accessibility, each such portion shall 
comply, to the extent practicable, with the applicable provisions of 
this subpart. This provision does not require that inaccessible vehicles 
be retrofitted with lifts, ramps or other boarding devices.
    (c) Requirements for vehicles and systems not covered by this part 
shall be determined on a case-by-case basis by the Department of 
Transportation in consultation with the U.S. Architectural and 
Transportation Barriers Compliance Board (Access Board).



Sec.  38.173  Automated guideway transit vehicles and systems.

    (a) Automated Guideway Transit (AGT) vehicles and systems, sometimes 
called ``people movers'', operated in airports and other areas where AGT 
vehicles travel at slow speed (i.e., at a speed of no more than 20 miles 
per hour at any location on their route during normal operation), shall 
comply with the provisions of Sec.  38.53 (a) through (c), and 
Sec. Sec.  38.55 through 38.61 of this part for rapid rail vehicles and 
systems.
    (b) Where the vehicle covered by paragraph (a) will operate in an 
accessible station, the design of vehicles shall be coordinated with the 
boarding platform design such that the horizontal gap between a vehicle 
door at rest and the platform shall be no greater than 1 inch and the 
height of the vehicle floor shall be within plus or minus \1/2\ inch of 
the platform height under all normal passenger load conditions. Vertical 
alignment may be accomplished by vehicle air suspension or other 
suitable means of meeting the requirement.
    (c) In stations where open platforms are not protected by platform 
screens, a suitable device or system shall be provided to prevent, deter 
or warn individuals from stepping off the platform between cars. 
Acceptable devices include, but are not limited to, pantograph gates, 
chains, motion detectors or other appropriate devices.
    (d) Light rail and rapid rail AGT vehicles and systems shall comply 
with subparts D and C of this part, respectively. AGT systems whose 
vehicles travel at a speed of more than 20 miles per hour at any 
location on their route during normal operation are covered

[[Page 560]]

under this paragraph rather than under paragraph (a) of this section.

[56 FR 45756, Sept. 6, 1991, as amended at 61 FR 25416, May 21, 1996]



Sec.  38.175  High-speed rail cars, monorails and systems.

    (a) All cars for high-speed rail systems, including but not limited 
to those using ``maglev'' or high speed steel-wheel-on-steel rail 
technology, and monorail systems operating primarily on dedicated rail 
(i.e., not used by freight trains) or guideway, in which stations are 
constructed in accordance with part 37, subpart C of this title, shall 
be designed for high-platform, level boarding and shall comply with 
Sec.  38.111(a) of this part for each type of car which is similar to 
intercity rail, Sec. Sec.  38.111(d), 38.113 (a) through (c) and (e), 
38.115 (a) and (b), 38.117 (a) and (b), 38.121 through 38.123, 
38.125(d), and 38.127 (if applicable) of this part. The design of cars 
shall be coordinated with the boarding platform design such that the 
horizontal gap between a car door at rest and the platform shall be no 
greater than 3 inches and the height of the car floor shall be within 
plus or minus \5/8\ inch of the platform height under all normal 
passenger load conditions. Vertical alignment may be accomplished by car 
air suspension or other suitable means of meeting the requirement. All 
doorways shall have, when the door is open, at least 2 footcandles of 
illumination measured on the door threshold.
    (b) All other high-speed rail cars shall comply with the similar 
provisions of subpart F of this part.



Sec.  38.177  Ferries, excursion boats and other vessels. [Reserved]



Sec.  38.179  Trams, and similar vehicles, and systems

    (a) New and used trams consisting of a tractor unit, with or without 
passenger accommodations, and one or more passenger trailer units, 
including but not limited to vehicles providing shuttle service to 
remote parking areas, between hotels and other public accommodations, 
and between and within amusement parks and other recreation areas, shall 
comply with this section. For purposes of determining applicability of 
49 CFR 37.101, 37.103, or 37.105 the capacity of such a vehicle or 
``train'' shall consist of the total combined seating capacity of all 
units, plus the driver, prior to any modification for accessibility.
    (b) Each tractor unit which accommodates passengers and each trailer 
unit shall comply with Sec.  38.25 and Sec.  38.29 of this part. In 
addition, each such unit shall comply with Sec.  38.23 (b) or (c) and 
shall provide at least one space for wheelchair or mobility aid users 
complying with Sec.  38.23(d) of this part unless the complete operating 
unit consisting of tractor and one or more trailers can already 
accommodate at least two wheelchair or mobility aid users.

[[Page 561]]



                         Sec. Figures to Part 38
[GRAPHIC] [TIFF OMITTED] TR28SE98.000


[[Page 562]]


[GRAPHIC] [TIFF OMITTED] TC02FE91.194


[[Page 563]]


[GRAPHIC] [TIFF OMITTED] TC02FE91.195


[[Page 564]]


[GRAPHIC] [TIFF OMITTED] TC02FE91.196


[56 FR 45756, Sept. 6, 1991, as amended at 63 FR 51700, 51703, Sept. 28, 
1998]



               Sec. Appendix to Part 38--Guidance Material

    This appendix contains materials of an advisory nature and provides 
additional information that should help the reader to understand the 
minimum requirements of the standards or to design vehicles for greater 
accessibility. Each entry is applicable to all subparts of this part 
except where noted. Nothing in this appendix shall in any way obviate 
any obligation to comply with the requirements of the standards 
themselves.

I. Slip Resistant Surface--Aisles, Steps, Floor Areas Where People Walk, 
       Floor Areas in Securement Locations, Lift Platforms, Ramps

    Slip resistance is based on the frictional force necessary to keep a 
shoe heel or crutch tip from slipping on a walking surface under 
conditions likely to be found on the surface. While the dynamic 
coefficient of friction during walking varies in a complex and non-
uniform way, the static coefficient of friction, which can be measured 
in several ways, provides a close approximation of the slip resistance 
of a surface. Contrary to popular belief, some slippage is necessary to 
walking,

[[Page 565]]

especially for persons with restricted gaits; a truly ``non-slip'' 
surface could not be negotiated.
    The Occupational Safety and Health Administration recommends that 
walking surfaces have a static coefficient of friction of 0.5. A 
research project sponsored by the Architectural and Transportation 
Barriers Compliance Board (Access Board) conducted tests with persons 
with disabilities and concluded that a higher coefficient of friction 
was needed by such persons. A static coefficient of friction of 0.6 is 
recommended for steps, floors, and lift platforms and 0.8 for ramps.
    It is recognized that the coefficient of friction varies 
considerably due to the presence of contaminants, water, floor finishes, 
and other factors not under the control of transit providers and may be 
difficult to measure. Nevertheless, many common materials suitable for 
flooring are now labeled with information on the static coefficient of 
friction. While it may not be possible to compare one product directly 
with another, or to guarantee a constant measure, transit operators or 
vehicle designers and manufacturers are encouraged to specify materials 
with appropriate values. As more products include information on slip 
resistance, improved uniformity in measurement and specification is 
likely. The Access Board's advisory guidelines on Slip Resistant 
Surfaces provides additional information on this subject.

           II. Color Contrast--Step Edges, Lift Platform Edges

    The material used to provide contrast should contrast by at least 
70%. Contrast in percent is determined by:

Contrast=[B-B)/B] x 100

Where B = light reflectance value (LRV) of the lighter area
and B = light reflectance value (LRV) of the darker area.

Note that in any application both white and black are never absolute; 
thus, B never equals 100 and B is always greater than 0.

                      III. Handrails and Stanchions

    In addition to the requirements for handrails and stanchions for 
rapid, light, and commuter rail vehicles, consideration should be given 
to the proximity of handrails or stanchions to the area in which 
wheelchair or mobility aid users may position themselves. When 
identifying the clear floor space where a wheelchair or mobility aid 
user can be accommodated, it is suggested that at least one such area be 
adjacent or in close proximity to a handrail or stanchion. Of course, 
such a handrail or stanchion cannot encroach upon the required 32 inch 
width required for the doorway or the route leading to the clear floor 
space which must be at least 30 by 48 inches in size.

              IV. Priority Seating Signs and Other Signage

    A. Finish and Contrast. The characters and background of signs 
should be eggshell, matte, or other non-glare finish. An eggshell finish 
(11 to 19 degree gloss on 60 degree glossimeter) is recommended. 
Characters and symbols shall contrast with their background--either 
light characters on a dark background or dark characters on a light 
background. Research indicates that signs are more legible for persons 
with low vision when characters contrast with their background by at 
least 70 percent. Contrast in percent shall be determined by:

Contrast=[B-B)/B] x 100

Where B = light reflectance value (LRV) of the lighter area
and B = light reflectance value (LRV) of the darker area.

Note that in any application both white and black are never absolute; 
thus, B never equals 100 and B is always greater than 0.
    The greatest readability is usually achieved through the use of 
light-colored characters or symbols on a dark background.
    B. Destination and Route Signs. (The following specifications, which 
are required for buses (Sec.  38.39), are recommended for other types of 
vehicles, particularly light rail vehicles, were appropriate.)
    1. Where destination or route information is displayed on the 
exterior of a vehicle, each vehicle shall have illuminated signs on the 
front and boarding side of the vehicle.
    2. Characters on signs required by paragraph IV.B.1 of this appendix 
shall have a width-to-height ratio between 3:5 and 1:1 and a stroke 
width-to-height ratio between 1:5 and 1:10, with a minimum character 
height (using an upper case ``X'') of 1 inch for signs on the boarding 
side and a minimum character height of 2 inches for front ``headsigns,'' 
with ``wide'' spacing (generally, the space between letters shall be \1/
16\ the height of upper case letters), and shall contrast with the 
background, either dark-on-light or light-on-dark, or as recommended 
above.
    C. Designation of Accessible Vehicles. The International Symbol of 
Accessibility should be displayed as shown in Figure 6.

                      V. Public Information Systems

    Entities are encouraged to employ any available services, signage, 
or alternative systems or devices that are capable of providing the same 
or equivalent information to persons with hearing loss. Two possible 
types of devices are visual display systems and listening systems. 
However, it should be noted that while visual display systems 
accommodate persons who are deaf or are hearing impaired, assistive 
listening systems aid only those with a partial loss of hearing.

[[Page 566]]

    A. Visual Display Systems. Announcements may be provided in a visual 
format by the use of electronic message boards or video monitors.
    Electronic message boards using a light emitting diode (LED) or 
``flip-dot'' display are currently provided in some transit stations and 
terminals and may be usable in vehicles. These devices may be used to 
provide real time or pre-programmed messages; however, real time message 
displays require the availability of an employee for keyboard entry of 
the information to be announced.
    Video monitor systems, such as visual paging systems provided in 
some airports (e.g., Baltimore-Washington International Airport), are 
another alternative. The Architectural and Transportation Barriers 
Compliance Board (Access Board) can provide technical assistance and 
information on these systems (``Airport TDD Access: Two Case Studies,'' 
(1990)).
    B. Assistive Listening Systems. Assistive listening systems (ALS) 
are intended to augment standard public address and audio systems by 
providing signals which can be received directly by persons with special 
receivers or their own hearing aids and which eliminate or filter 
background noise. Magnetic induction loops, infra-red and radio 
frequency systems are types of listening systems which are appropriate 
for various applications.
    An assistive listening system appropriate for transit vehicles, 
where a group of persons or where the specific individuals are not known 
in advance, may be different from the system appropriate for a 
particular individual provided as an auxiliary aid or as part of a 
reasonable accommodation. The appropriate device for an individual is 
the type that individual can use, whereas the appropriate system for a 
station or vehicle will necessarily be geared toward the ``average'' or 
aggregate needs of various individuals. Earphone jacks with variable 
volume controls can benefit only people who have slight hearing loss and 
do not help people who use hearing aids. At the present time, magnetic 
induction loops are the most feasible type of listening system for 
people who use hearing aids equipped with ``T-coils'', but people 
without hearing aids or those with hearing aids not equipped with 
inductive pick-ups cannot use them without special receivers. Radio 
frequency systems can be extremely effective and inexpensive. People 
without hearing aids can use them, but people with hearing aids need a 
special receiver to use them as they are presently designed. If hearing 
aids had a jack to allow a by-pass of microphones, then radio frequency 
systems would be suitable for people with and without hearing aids. Some 
listening systems may be subject to interference from other equipment 
and feedback from hearing aids of people who are using the systems. Such 
interference can be controlled by careful engineering design that 
anticipates feedback sources in the surrounding area.
    The Architectural and Transportation Barriers Compliance Board 
(Access Board) has published a pamphlet on Assistive Listening Systems 
which lists demonstration centers across the country where technical 
assistance can be obtained in selecting and installing appropriate 
systems. The State of New York has also adopted a detailed technical 
specification which may be useful.

                         VI. Over-the-Road Buses

    A. Door Width. Achieving a 30 inch wide front door on an over-the-
road bus is considered not feasible if doing so would necessitate 
reduction of the bus approach angle, relocating the front axle rearward, 
or increasing the bus overall length.
    B. Restrooms. The following is provided to assist manufacturers and 
designers to create restrooms which can be used by people with 
disabilities. These specifications are derived from requirements for 
rail vehicles and represent compromises between space needed for use and 
constraints imposed by vehicle dimensions. As a result, some persons 
with disabilities cannot use a restroom which meets these specifications 
and operators who do provide such restrooms should provide passengers 
with disabilities sufficient advance information about design so that 
those passengers can assess their ability to use them. Designers should 
provide additional space beyond these minimum specifications whenever 
possible.
    (1) If an accessible restroom is provided, it should be designed so 
as to allow a person using a wheelchair or mobility aid to enter and use 
such restroom as specified in paragraphs (1)(a) through (e) of section 
VI.B of this appendix.
    (a) The minimum clear floor area should be 35 inches (890 mm) by 60 
inches (1525 mm). Permanently installed fixtures may overlap this area a 
maximum of 6 inches (150 mm), if the lowest portion of the fixture is a 
minimum of 9 inches (230 mm) above the floor, and may overlap a maximum 
of 19 inches (485 mm), if the lowest portion of the fixture is a minimum 
of 29 inches (740 mm) above the floor, provided such fixtures do not 
interfere with access to the water closet. Fold-down or retractable 
seats or shelves may overlap the clear floor space at a lower height 
provided they can be easily folded up or moved out of the way.
    (b) The height of the water closet should be 17 inches (430 mm) to 
19 inches (485 mm) measured to the top of the toilet seat. Seats should 
not be sprung to return to a lifted position.
    (c) A grab bar at least 24 inches (610 mm) long should be mounted 
behind the water closet, and a horizontal grab bar at least 40 inches 
(1015 mm) long should be mounted on

[[Page 567]]

at least one side wall, with one end not more than 12 inches (305 mm) 
from the back wall, at a height between 33 inches (840 mm) and 36 inches 
(915 mm) above the floor.
    (d) Faucets and flush controls should be operable with one hand and 
should not require tight grasping, pinching, or twisting of the wrist. 
The force required to activate controls should be no greater than 5 lbs 
(22.2 N). Controls for flush valves should be mounted no more than 44 
inches (1120 mm) above the floor.
    (e) Doorways on the end of the enclosure, opposite the water closet, 
should have a minimum clear opening width of 32 inches (815 mm). Door 
latches and hardware should be operable with one hand and should not 
require tight grasping, pinching, or twisting of the wrist.
    (2) Accessible restrooms should be in close proximity to at least 
one seating location for persons using mobility aids and should be 
connected to such a space by an unobstructed path having a minimum width 
of 32 inches (815 mm).
    C. Visibility Through a Window. Care should be taken so that the 
lift does not obscure the vision of the person occupying the securement 
position.

[56 FR 45756, Sept. 6, 1991, as amended at 63 FR 51702, 51703, Sept. 28, 
1998; 79 FR 21407, Apr. 16, 2014]



PART 39_TRANSPORTATION FOR INDIVIDUALS WITH DISABILITIES: PASSENGER
VESSELS--Table of Contents



                            Subpart A_General

Sec.
39.1 What is the purpose of this part?
39.3 What do the terms in this rule mean?
39.5 To whom do the provisions of this part apply?
39.7 What other authorities concerning nondiscrimination on the basis of 
          disability apply to owners and operators of passenger vessels?
39.9 What may the owner or operator of a foreign-flag vessel do if it 
          believes a provision of a foreign nation's law prohibits 
          compliance with a provision of this part?
39.11 [Reserved]
39.13 When must PVOs comply with the provisions of this part?

           Subpart B_Nondiscrimination and Access to Services

39.21 What is the general nondiscrimination requirement of this part?
39.23 What are the requirements concerning contractors to owners and 
          operators of passenger vessels?
39.25 May PVOs refuse to provide transportation or use of a vessel on 
          the basis of disability?
39.27 Can a PVO take action to deny transportation or restrict services 
          to a passenger with a disability based on safety concerns?
39.29 May PVOs limit the number of passengers with a disability on a 
          passenger vessel?
39.31 May PVOs limit access to transportation or use of a vessel on the 
          basis that a passenger has a communicable disease?
39.33 May PVOs require a passenger with a disability to provide a 
          medical certificate?
39.35 May PVOs require a passenger with a disability to provide advance 
          notice that he or she is traveling on or using a passenger 
          vessel when no special services are sought?
39.37 May PVOs require a passenger with a disability to provide advance 
          notice in order to obtain particular auxiliary aids and 
          services or to arrange group travel?
39.39 How do PVOs ensure that passengers with disabilities are able to 
          use accessible cabins?
39.41 May a passenger with a disability be required to travel with 
          another person?
39.43 May PVOs impose special charges on passengers with a disability 
          for providing services required by this rule?
39.45 May PVOs impose other restrictions on passengers with a disability 
          that they do not impose on other passengers?
39.47 May PVOs require passengers with a disability to sign waivers or 
          releases?

                  Subpart C_Information for Passengers

39.51 What is the general requirement for PVOs' provision of auxiliary 
          aids and services to passengers?
39.53 What information must PVOs provide to passengers with a 
          disability?
39.55 Must information and reservation services of PVOs be accessible to 
          individuals with hearing or vision impairments?
39.57 Must PVOs make copies of this rule available to passengers?

             Subpart D_Accessibility of Landside Facilities

39.61 What requirements must PVOs meet concerning the accessibility of 
          terminals and other landside facilities?
39.63 What modifications and auxiliary aids and services are required at 
          terminals and other landside facilities for individuals with 
          hearing or vision impairments?

Subpart E--Accessibility of Vessels [Reserved]

[[Page 568]]

    Subpart F_Assistance and Services to Passengers with Disabilities

39.81 What assistance must PVOs provide to passengers with a disability 
          in getting to and from a passenger vessel?
39.83 What are PVOs' obligations for assisting passengers with a 
          disability in getting on and off a passenger vessel?
39.85 What services must PVOs provide to passengers with a disability on 
          board a passenger vessel?
39.87 What services are PVOs not required to provide to passengers with 
          a disability on board a passenger vessel?
39.89 What requirements apply to on-board safety briefings, information, 
          and drills?
39.91 Must PVOs permit passengers with a disability to travel with 
          service animals?
39.93 What wheelchairs and other assistive devices may passengers with a 
          disability bring onto a passenger vessel?
39.95 May PVOs limit their liability for the loss of or damage to 
          wheelchairs and other assistive devices?

             Subpart G_Complaints and Enforcement Procedures

39.101 What are the requirements for providing Complaints Resolution 
          Officials?
39.103 What actions do CROs take on complaints?
39.105 How must PVOs respond to written complaints?
39.107 Where may persons obtain assistance with matters covered by this 
          regulation?
39.109 What enforcement actions may be taken under this Part?

    Authority: 42 U.S.C. 12101 through 12213; 49 U.S.C. 322; 29 U.S.C. 
794.

    Source: 75 FR 38893, July 6, 2010, unless otherwise noted.



                            Subpart A_General



Sec.  39.1  What is the purpose of this part?

    The purpose of this Part is to carry out the Americans with 
Disabilities Act and Section 504 of the Rehabilitation Act of 1973 with 
respect to passenger vessels. This rule prohibits owners and operators 
of passenger vessels, including U.S. and foreign-flag vessels, from 
discriminating against passengers on the basis of disability; requires 
vessels and related facilities to be accessible; and requires owners and 
operators of vessels to take steps to accommodate passengers with 
disabilities.



Sec.  39.3  What do the terms in this rule mean?

    In this regulation, the terms listed in this section have the 
following meanings:
    ``Accessible'' means, with respect to vessels and facilities, 
complying with the applicable requirements of this Part.
    ``The Act'' or ``ADA'' means the Americans with Disabilities Act of 
1990 (Pub. L. 101-336, 104 Stat. 327, 42 U.S.C. 12101-12213 and 47 
U.S.C. 225 and 611), as it may be amended from time to time.
    ``Assistive device'' means any piece of equipment that assists a 
passenger with a disability to cope with the effects of his or her 
disability. Such devices are intended to assist a passenger with a 
disability to hear, see, communicate, maneuver, or perform other 
functions of daily life, and may include medical devices.
    ``Auxiliary aids and services'' includes:
    (1) Qualified interpreters on-site or through video remote 
interpreting (VRI) services; notetakers; real-time computer-aided 
transcription services; written materials; exchange of written notes; 
telephone handset amplifiers; assistive listening devices; assistive 
listening systems; telephones compatible with hearing aids; closed 
caption decoders; open and closed captioning, including real-time 
captioning; voice, text, and video-based telecommunications products and 
systems, including text telephones (TTYs), videophones, and captioned 
telephones, or equally effective telecommunications devices; videotext 
displays; accessible electronic and information technology; or other 
effective methods of making aurally delivered information available to 
individuals who are deaf or hard of hearing;
    (2) Qualified readers, taped texts, audio recordings, brailed 
materials and displays, screen reader software, magnification software, 
optical readers, secondary auditory programs (SAP), large print 
materials, accessible electronic and information technology, or other 
effective methods of making visually delivered materials available to 
individuals who are blind or have low vision;

[[Page 569]]

    (3) Acquisition or modification of equipment or devices; or
    (4) Other similar services or actions.
    ``Coast Guard'' means the United States Coast Guard, an agency of 
the Department of Homeland Security.
    ``Commerce'' means travel, trade, transportation, or communication 
among the several States, between any foreign country or any territory 
and possession and any State, or between points in the same State but 
through another State or foreign country.
    ``Department'' or ``DOT'' means the United States Department of 
Transportation, including any of its agencies.
    ``Designated public transportation'' means transportation provided 
by a public entity by passenger vessel that provides the general public 
with general or special service, including charter service, on a regular 
and continuing basis.
    ``Direct threat'' means a significant risk to the health or safety 
of others that cannot be eliminated by a modification of policies, 
practices, or procedures, or by the provision of auxiliary aids or 
services.
    ``Disability'' means, with respect to an individual, a physical or 
mental impairment that substantially limits one or more of the major 
life activities of such individual; a record of such an impairment; or 
being regarded as having such an impairment.
    (1) The phrase physical or mental impairment means--
    (i) Any physiological disorder or condition, cosmetic disfigurement, 
or anatomical loss affecting one or more of the following body systems: 
Neurological, musculoskeletal, special sense organs, respiratory 
including speech organs, cardiovascular, reproductive, digestive, 
genito-urinary, hemic and lymphatic, skin, and endocrine;
    (ii) Any mental or psychological disorder, such as mental 
retardation, organic brain syndrome, emotional or mental illness, and 
specific learning disabilities;
    (iii) The term physical or mental impairment includes, but is not 
limited to, such contagious or noncontagious diseases and conditions as 
orthopedic, visual, speech, and hearing impairments; cerebral palsy, 
epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, 
diabetes, mental retardation, emotional illness, specific learning 
disabilities, HIV disease, tuberculosis, drug addiction and alcoholism;
    (iv) The phrase physical or mental impairment does not include 
homosexuality or bisexuality.
    (2) The phrase major life activities means functions such as caring 
for one's self, performing manual tasks, walking, seeing, hearing, 
speaking, breathing, learning, and work.
    (3) The phrase has a record of such an impairment means has a 
history of, or has been misclassified as having, a mental or physical 
impairment that substantially limits one or more major life activities.
    (4) The phrase is regarded as having such an impairment means--
    (i) Has a physical or mental impairment that does not substantially 
limit major life activities, but which is treated by a public or private 
entity as constituting such a limitation;
    (ii) Has a physical or mental impairment that substantially limits a 
major life activity only as a result of the attitudes of others toward 
such an impairment; or
    (iii) Has none of the impairments defined in paragraph (1) of this 
definition but is treated by a public or private entity as having such 
an impairment.
    (5) The term disability does not include--
    (i) Transvestism, transsexualism, pedophilia, exhibitionism, 
voyeurism, gender identity disorders not resulting from physical 
impairments, or other sexual behavior disorders;
    (ii) Compulsive gambling, kleptomania, or pyromania; or
    (iii) Psychoactive substance abuse disorders resulting from the 
current illegal use of drugs.
    ``Facility'' means all or any portion of buildings, structures, 
sites, complexes, equipment, roads, walks, passageways, parking lots, or 
other real or personal property, including the site where the building, 
property, structure, or equipment is located.
    ``Individual with a disability'' means a person who has a 
disability, but does not include an individual who is currently engaging 
in the illegal use of

[[Page 570]]

drugs, when a public or private entity acts on the basis of such use.
    ``Operates'' includes, with respect to passenger vessel service, the 
provision of transportation by a public or private entity itself or by a 
person under a contractual or other arrangement or relationship with the 
entity.
    ``Passenger for hire'' means a passenger for whom consideration is 
contributed as a condition of carriage on the vessel, whether directly 
or indirectly flowing to the owner, charterer, operator, agent, or any 
other person having an interest in the vessel.
    ``Passenger vessel'' means any ship, boat, or other craft used as a 
conveyance on water, regardless of its means of propulsion, which 
accepts passengers, whether or not for hire. The term does not include 
boats or other craft rented or leased to and operated solely by 
consumers or fixed floating structures permanently moored or attached to 
a landside facility.
    ``Passenger vessel owner or operator (PVO)'' means any public or 
private entity that owns or operates a passenger vessel. When the party 
that owns a passenger vessel is a different party from the party that 
operates the vessel, both are responsible for complying with the 
requirements of this Part. To be a PVO for purposes of this Part, a 
private entity must be a private entity primarily engaged in the 
business of transporting people, as determined by the Department of 
Transportation in consultation with the Department of Justice.
    ``Private entity'' means any entity other than a public entity that 
is primarily engaged in the business of transporting people.
    ``Public entity'' means:
    (1) Any State or local government; or
    (2) Any department, agency, special purpose district, or other 
instrumentality of one or more State or local governments (including an 
entity established to provide public ferry service).
    ``Qualified individual with a disability'' means an individual with 
a disability--
    (1) Who, as a passenger (referred to as a ``passenger with a 
disability''), with respect to obtaining transportation on or use of a 
passenger vessel, or other services or accommodations required by this 
Part,
    (i) Buys or otherwise validly obtains, or makes a good faith effort 
to obtain, a ticket for transportation on a passenger vessel and 
presents himself or herself at the vessel for the purpose of traveling 
on the voyage to which the ticket pertains; or
    (ii) With respect to use of a passenger vessel for which members of 
the public are not required to obtain tickets, presents himself or 
herself at the vessel for the purpose of using the vessel for the 
purpose for which it is made available to the public; and
    (iii) Meets reasonable, nondiscriminatory requirements applicable to 
all passengers; or
    (2) Who, with respect to accompanying or meeting a traveler, using 
ground transportation, using facilities, or obtaining information about 
schedules, fares, reservations, or policies, takes those actions 
necessary to use facilities or services offered by the PVO to the 
general public, with reasonable modifications, as needed, provided by 
the PVO.
    ``Secretary'' means the Secretary of Transportation or his/her 
designee.
    ``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.
    ``Service animal'' means any guide dog, signal dog, or other animal 
individually trained to work or perform tasks for an individual with a 
disability, including, but not limited to, guiding individuals with 
impaired vision, alerting individuals with impaired hearing to intruders 
or sounds, alerting persons with seizure disorders to the onset of a 
seizure, providing minimal protection or rescue work, pulling a 
wheelchair, or fetching dropped items.
    ``Specified public transportation'' means transportation by 
passenger vessel provided by a private entity to the general public, 
with general or special service (including charter service) on a regular 
and continuing basis, where the private entity is primarily engaged in 
the business of transporting people.
    ``Terminal'' means, with respect to passenger vessel transportation, 
the portion of a property located adjacent

[[Page 571]]

to a dock, entry ramp, or other means of boarding a passenger vessel, 
including areas through which passengers gain access to land 
transportation, passenger shelters, designated waiting areas, ticketing 
areas, and baggage drop-off and retrieval sites, to the extent that the 
PVO owns or leases the facility or exercises control over the selection, 
design, construction, or alteration of the property.
    ``United States'' or ``U.S.'' means the United States of America, 
including its territories, commonwealths, and possessions.
    ``Wheelchair'' means any mobility aid belonging to any class of 
three or four-wheeled devices, usable indoors, designed for and used by 
individuals with mobility impairments, whether operated manually or 
powered.
    ``You'' means the owner or operator of a passenger vessel, unless 
the context requires a different meaning.



Sec.  39.5  To whom do the provisions of this part apply?

    (a) Except as provided in paragraph (b) or (c) of this section, this 
Part applies to you if you are the owner or operator of any passenger 
vessel, and you are:
    (1) A public entity that provides designated public transportation; 
or
    (2) A private entity primarily engaged in the business of 
transporting people whose operations affect commerce and that provides 
specified public transportation;
    (b) If you are the PVO of a foreign-flag passenger vessel, this Part 
applies to you only if your vessel picks up passengers at a port in the 
United States, its territories, possessions, or commonwealths.



Sec.  39.7  What other authorities concerning nondiscrimination on the
basis of disability apply to owners and operators of passenger vessels?

    (a) If you receive Federal financial assistance from the Department 
of Transportation, compliance with applicable requirements of this part 
is a condition of compliance with section 504 of the Rehabilitation Act 
of 1973 and of receiving financial assistance.
    (b) You are also subject to ADA regulations of the Department of 
Justice (28 CFR part 35 or 36, as applicable).



Sec.  39.9  What may the owner or operator of a foreign-flag vessel do
if it believes a provision of a foreign nation's law prohibits compliance 
with a provision of this part?

    (a) If you are the PVO of a foreign-flag vessel, and you believe 
that a binding legal requirement of a foreign nation precludes you from 
complying with a provision of this Part, you may request a waiver of the 
provision of this Part.
    (b) You must send such a waiver request to the Department.
    (c) Your waiver request must include the following elements:
    (1) A copy, in the English language, of the foreign law involved;
    (2) A description of how the binding legal requirement of a foreign 
nation applies and how it precludes compliance with a provision of this 
Part;
    (3) A description of the alternative means you will use, if the 
waiver is granted, to effectively achieve the objective of the provision 
of this Part subject to the waiver or, if applicable, a justification of 
why it would be impossible to achieve this objective in any way.
    (d) If you submit such a waiver request before November 3, 2010 you 
may continue to apply the foreign legal requirement pending the 
Department's response to your waiver request.
    (e) The Department shall grant the waiver request if it determines 
that the binding legal requirement of a foreign nation applies, that it 
does preclude compliance with a provision of this Part, and that the PVO 
has provided an effective alternative means of achieving the objective 
of the provision of this Part subject to the waiver or clear and 
convincing evidence that it would be impossible to achieve this 
objective in any way.



Sec.  39.11  [Reserved]



Sec.  39.13  When must PVOs comply with the provisions of this part?

    You are required to comply with the requirements of this part 
beginning November 3, 2010, except as otherwise

[[Page 572]]

provided in individual sections of this part.



           Subpart B_Nondiscrimination and Access to Services



Sec.  39.21  What is the general nondiscrimination requirement of
this part?

    (a) As a PVO, you must not do any of the following things, either 
directly or through a contractual, licensing, or other arrangement:
    (1) You must not discriminate against any qualified individual with 
a disability, by reason of such disability, with respect to the 
individual's use of a vessel;
    (2) You must not require a qualified individual with a disability to 
accept special services that the individual does not request;
    (3) You must not exclude a qualified individual with a disability 
from or deny the person the benefit of any vessel transportation or 
related services that are available to other persons, except when 
specifically permitted by another section of this Part; and
    (4) You must not take any action against an individual (e.g., 
refusing to provide transportation) because the individual asserts, on 
his or her own behalf or through or on behalf of others, rights 
protected by this part or the ADA.
    (b)(1) As a PVO that is a private entity, you must make reasonable 
modifications in policies, practices, or procedures when such 
modifications are necessary to afford such goods, services, facilities, 
privileges, advantages, or accommodations to individuals with 
disabilities, unless you can demonstrate that making such modifications 
would fundamentally alter the nature of such goods, services, 
facilities, privileges, advantages, or accommodations.
    (2) As a PVO that is a public entity, you must make reasonable 
modifications in policies, practices, or procedures when necessary to 
avoid discrimination on the basis of disability, unless you can 
demonstrate that making the modifications would fundamentally alter the 
nature of the services, programs, or activities you offer.



Sec.  39.23  What are the requirements concerning contractors to owners
and operators of passenger vessels?

    (a) If, as a PVO, you enter into a contractual or other arrangement 
or relationship with any other party to provide services to or affecting 
passengers, you must ensure that the other party meets the requirements 
of this Part that would apply to you if you provided the service 
yourself.
    (b) As a PVO, you must include an assurance of compliance with this 
Part in your contracts or agreements with any contractors who provide to 
the public services that are subject to the requirements of this Part. 
Noncompliance with this assurance is a material breach of the contract 
on the contractor's part. With respect to contracts or agreements 
existing on November 3, 2010, you must ensure the inclusion of this 
assurance by November 3, 2011 or on the next occasion on which the 
contract or agreement is renewed or amended, whichever comes first.
    (1) This assurance must commit the contractor to compliance with all 
applicable provisions of this Part in activities performed on behalf of 
the PVO.
    (2) The assurance must also commit the contractor to implementing 
directives issued by your Complaints Resolution Officials (CROs) under 
Sec.  39.103.
    (c) As a PVO, you must also include such an assurance of compliance 
in your contracts or agreements of appointment with U.S. travel agents. 
With respect to contracts or agreements with U.S. travel agents existing 
on November 3, 2010, you must ensure the inclusion of this assurance by 
November 3, 2011 or on the next occasion on which the contract or 
agreement is renewed or amended, whichever comes first. You are not 
required to include such an assurance in contracts with foreign travel 
agents.
    (d) You remain responsible for your contractors' and U.S. travel 
agents' compliance with this part and with the assurances in your 
contracts with them.
    (e) It is not a defense to an enforcement action under this Part 
that your noncompliance resulted from action or inaction by a contractor 
or U.S. travel agent.

[[Page 573]]



Sec.  39.25  May PVOs refuse to provide transportation or use of a vessel
on the basis of disability?

    (a) As a PVO, you must not refuse to provide transportation or use 
of a vessel to a passenger with a disability on the basis of his or her 
disability, except as specifically permitted by this Part.
    (b) You must not refuse to provide transportation or use of a vessel 
to a passenger with a disability because the person's disability results 
in appearance or involuntary behavior that may offend, annoy, or 
inconvenience crewmembers or other passengers.
    (c) If you refuse to provide transportation or use of a vessel to a 
passenger on a basis relating to the individual's disability, you must 
provide to the person a written statement of the reason for the refusal. 
This statement must include the specific basis for your opinion that the 
refusal meets the standards of Sec.  39.27 or is otherwise specifically 
permitted by this part. You must provide this written statement to the 
person within 10 calendar days of the refusal of transportation or use 
of the vessel.



Sec.  39.27  Can a PVO take action to deny transportation or restrict
services to a passenger with a disability based on safety concerns?

    (a) As a PVO, you may take action to deny transportation or restrict 
services to a passenger with a disability if necessitated by legitimate 
safety requirements. Safety requirements must be based on actual risks 
and not on mere speculation, stereotypes, or generalizations about 
individuals with disabilities.

    Example 1 to paragraph 39.27(a): You may take such action in order 
to comply with Coast Guard safety regulations.
    Example 2 to paragraph 39.27(a): You may take such action if 
accommodating a large or heavy wheelchair would, together with its 
occupant, create weight and balance problem that could affect adversely 
the seaworthiness of the vessel or impede emergency egress from the 
vessel.
    Example 3 to paragraph 39.27(a): You could restrict access to a 
lifeboat for a mobility device that would limit access to the lifeboat 
for other passengers.

    (b) In taking action pursuant to legitimate safety requirements, you 
must take the action that imposes the minimum feasible burdens or 
limitations from the point of view of the passenger. For example, if you 
can meet legitimate safety requirements by a means short of refusing 
transportation to a passenger, you must do so.
    (c) You may take action to deny transportation or restrict services 
to a passenger if the passenger poses a direct threat to others. In 
determining whether an individual poses a direct threat to the health or 
safety of others, the PVO must make an individualized assessment, based 
on reasonable judgment that relies on current medical knowledge or on 
the best available objective evidence, to ascertain: The nature, 
duration, and severity of the risk; the probability that the potential 
injury will actually occur; and whether reasonable modifications of 
policies, practices, or procedures will mitigate the risk.



Sec.  39.29  May PVOs limit the number of passengers with a disability
on a passenger vessel?

    As a PVO, you must not limit the number of passengers with a 
disability other than individuals with a mobility disability on your 
vessel. However, if in the Captain's judgment, weight or stability 
issues are presented by the presence of mobility devices and would 
conflict with legitimate safety requirements pertaining to the vessel 
and its passengers, then the number of passengers with mobility aids may 
be limited, but only to the extent reasonable to prevent a avoid such a 
conflict.



Sec.  39.31  May PVOs limit access to transportation or use of a vessel
on the basis that a passenger has a communicable disease?

    (a) You must not take any of the following actions on the basis that 
a passenger has a communicable disease or infection, unless one of the 
conditions of paragraph (b) of this section exists:
    (1) Refuse to provide transportation or use of a vessel to the 
passenger;
    (2) Delay the passenger's transportation or use of the vessel (e.g., 
require the passenger to take a later trip);
    (3) Impose on the passenger any condition, restriction, or 
requirement not imposed on other passengers; or
    (4) Require the passenger to provide a medical certificate.

[[Page 574]]

    (b) You may take actions listed in paragraph (a) of this section 
only if either or both of the conditions listed in paragraphs (b)(1) and 
(2) of this section are met. The action you take must be the least 
restrictive from the point of view of the passenger, consistent with 
protecting the health of other passengers.
    (1) U.S. or international public health authorities (e.g., the 
Centers for Disease Control, Public Health Service, World Health 
Organization) have determined that persons with a particular condition 
should not be permitted to travel or should travel only under conditions 
specified by the public health authorities;
    (2) An individual has a condition that is both readily transmissible 
by casual contact in the context of traveling on or using a passenger 
vessel and has serious health consequences.

    Example 1 to paragraph 39.31(b)(2). A passenger has a common cold. 
This condition is readily transmissible by casual contact but does not 
have serious health consequences. You may not take any of the actions 
listed in paragraph (a) of this section.
    Example 2 to paragraph 39.31(b)(2): A passenger has HIV/AIDS. This 
condition is not readily transmissible by casual contact but does have 
serious health consequences. You may not take any of the actions listed 
in paragraph (a) of this section.
    Example 3 to paragraph 39.31(b)(2): A passenger has SARS or a 
norovirus. These conditions are readily transmissible by casual contact 
and have serious health consequences. You may take an action listed in 
paragraph (a) of this section.
    Example 4 to paragraph 39.31(b)(2). A passenger has a condition that 
is not readily transmissible by casual contact to or does not have 
serious health consequences for the general passenger population. 
However, it is possible that it could be readily transmitted by casual 
contact with and have serious health consequences for an individual with 
a severe allergy or severely compromised immune system. You may not take 
any of the actions listed in paragraph (a) of this section.

    (c) Any action of those listed in paragraph (a) of this section that 
you take under paragraph (b) of this section must be the least drastic 
action you can take to protect the health of other passengers. For 
example, if you can protect the health of other passenger by imposing a 
condition on the transportation of a passenger with a communicable 
disease (e.g., limiting the passenger's access to certain facilities on 
the vessel for a period of time), you cannot totally deny transportation 
on the vessel.
    (d) For purposes of paragraph (a)(4) of this section, a medical 
certificate is a written statement from the passenger's physician saying 
that the passenger's disease or infection would not, under the present 
conditions in the particular passenger's case, be readily communicable 
to other persons by casual contact during the normal course of the 
passenger's transportation or use of the vessel. Such a medical 
certificate must state any conditions or precautions that would have to 
be observed to prevent the transmission of the disease or infection to 
other persons in the normal course of the passenger's transportation on 
or use of the vessel. It must be sufficiently recent to pertain directly 
to the communicable disease presented by the passenger at the time the 
passenger seeks to board the vessel.
    (e) If your action under this section results in the postponement of 
a passenger's transportation or use of the vessel, you must permit the 
passenger to travel or use the vessel at a later available time (up to 
one year from the date of the postponed trip or use of the vessel) at 
the cost that would have applied to the passenger's originally scheduled 
trip or use of the vessel without penalty or, at the passenger's 
discretion, provide a refund for any unused transportation or use of the 
vessel. If there is no available reservation within one year, you must 
provide a refund.
    (f) If you take any action under this section that restricts a 
passenger's transportation or use of the vessel, you must, on the 
passenger's request, provide a written explanation within 10 days of the 
request.



Sec.  39.33  May PVOs require a passenger with a disability to provide 
a medical certificate?

    Except as provided in Sec.  39.31, you must not require a passenger 
with a disability to have a medical certificate as a condition for being 
provided transportation on your vessel.

[[Page 575]]



Sec.  39.35  May PVOs require a passenger with a disability to provide
advance notice that he or she is traveling on or using a passenger vessel
when no particular services are sought?

    As a PVO, you must not require a passenger with a disability to 
provide advance notice of the fact that he or she is traveling on or 
using a passenger vessel when the passenger is not seeking particular 
auxiliary aids or services, or special privileges or services, that in 
order to be provided need to be arranged before the passenger arrives to 
board the vessel. The PVO always has an obligation to provide effective 
communication between the PVO and individuals who are deaf or hard of 
hearing or blind or visually impaired through the use of appropriate 
auxiliary aids and services.



Sec.  39.37  May PVOs require a passenger with a disability to provide
advance notice in order to obtain particular auxiliary aids and services
or to arrange group travel?

    (a) Except as provided in this section, as a PVO you must not 
require a passenger with a disability to provide advance notice in order 
to obtain services or privileges required by this Part.
    (b) If 10 or more passengers with a disability seek to travel as a 
group, you may require 72 hours advance notice for the group's travel.
    (c) With respect to providing particular auxiliary aids and 
services, you may request reasonable advance notice to guarantee the 
availability of those aids or services.
    (d) Your reservation and other administrative systems must ensure 
that when passengers provide the advance notice that you require, 
consistent with this section, for services and privileges, the notice is 
communicated, clearly and on time, to the people responsible for 
providing the requested service or accommodation.



Sec.  39.39  How do PVOs ensure that passengers with disabilities are 
able to use accessible cabins?

    (a) As a PVO operating a vessel that has accessible cabins, you must 
follow the requirements of this Part to ensure that passengers with 
disabilities who need accessible cabins have nondiscriminatory access to 
them.
    (b) You must, with respect to reservations made by any means (e.g., 
telephone, Internet, in person, or through a third party):
    (1) Modify your policies, practices, or procedures to ensure that 
individuals with disabilities can make reservations for accessible 
cabins during the same hours and in the same manner as individuals who 
do not need accessible cabins;
    (2) Identify and describe accessible features in the cabins offered 
through your reservations service in enough detail to permit individuals 
with disabilities to assess independently whether a given cabin meets 
his or her accessibility needs.
    (3) Ensure that accessible cabins are held for use by individuals 
with disabilities until all other cabins in that class of service have 
been rented;
    (4) Reserve accessible cabins upon request by a passenger with 
disabilities and ensure that the specific accessible cabin reserved by 
that passenger is held for him or her, even you do not normally hold 
specific cabins for passengers who make reservations.
    (c) You may release unsold accessible cabins to persons without 
disabilities for their own use when all other cabins in the same class 
of service and price for a voyage have been reserved.
    (d) If a passenger with a disability seeks to reserve an accessible 
cabin in a given class of service, and there is not an available 
accessible cabin in that class of service, but there is an available 
accessible cabin in a different class of service, you must allow the 
passenger to reserve that accessible cabin at the price of the requested 
class of service of the class of service in which the accessible cabin 
exists, whichever is lower.
    (e) As a PVO, you are never required to deny transportation to any 
passenger who has already reserved passage in order to accommodate a 
passenger with a disability in an accessible cabin.
    (f) You must not require proof of disability, including, for 
example, a doctor's note, before reserving an accessible cabin.
    (g) To prevent fraud in the assignment of accessible cabins (e.g., 
attempts by individuals who do not have

[[Page 576]]

disabilities to reserve accessible cabins because they have greater 
space, you--
    (1) Must inquire of persons seeking to reserve such cabins whether 
the individual (or an individual for whom the cabin is being reserved) 
has a mobility disability or a disability that requires the use of the 
accessible features that are provided in the cabin.
    (2) May require a written attestation from the individual that 
accessible cabin is for a person who has a mobility disability or a 
disability that requires the use of the accessible features that are 
provided in the cabin.
    (h) You must investigate the potential misuse of accessible cabins 
where there is good cause to believe that such cabins have been 
purchased fraudulently, and you may take appropriate action against 
someone who has reserved or purchased such a cabin fraudulently. For 
example, if an individual who does not have a disability reserves an 
accessible cabin, after having attested that he or she has a mobility 
disability, you may deny transportation to the individual.



Sec.  39.41  May a passenger with a disability be required to travel
with another person?

    (a) You must not require that a passenger with a disability travel 
with another person as a condition of being provided transportation on 
or use of a passenger vessel.
    (b) Your personnel are not required to perform personal tasks (e.g., 
assisting with eating, dressing, toileting) for a passenger.



Sec.  39.43  May PVOs impose special charges on passengers with a
disability for providing services required by this rule?

    (a) As a PVO, you must not charge higher fares, surcharges, or other 
fees to passengers with a disability that are not imposed on other 
passengers for transportation or use of the vessel.
    (b) If the accommodations on a vessel that are accessible to 
passengers with a disability are available only in a type or class of 
service or part of a vessel that are more expensive than the type or 
class of service or part of a vessel that the passenger requests, you 
must provide the accessible accommodation at the price of the type or 
class of service or facility that the passenger requests.
    (c) You must not impose special or extra charges for providing 
facilities, equipment, or services that this rule requires to be 
provided to passengers with a disability.



Sec.  39.45  May PVOs impose other restrictions on passengers with
a disability that they do not impose on other passengers?

    (a) As a PVO, you must not subject passengers with a disability to 
restrictions that do not apply to other passengers, except as otherwise 
explicitly permitted in this part.
    (b) Restrictions you must not impose on passengers with a disability 
include, but are not limited to, the following:
    (1) Restricting passengers' movement within the vessel or a 
terminal;
    (2) Requiring passengers to remain in a holding area or other 
location in order to receive transportation or services;
    (3) [Reserved]
    (4) Requiring passengers to wear badges or other special 
identification; or
    (5) Requiring ambulatory passengers, including but not limited to 
blind or visually impaired passengers, to use a wheelchair or other 
mobility device in order to receive assistance required by this Part or 
otherwise offered to the passenger.
    (c) Special muster stations for disabled individuals are permissible 
for emergency evacuations in order to centrally locate available 
resources.



Sec.  39.47  May PVOs require passengers with a disability to sign
waivers or releases?

    (a) As a PVO, you must not require passengers with a disability to 
sign any release or waiver of liability not required of all passengers 
in order to receive transportation or use of a vessel or to receive 
services relating to a disability.
    (b) You must not require passengers with a disability to sign 
waivers of liability for damage to or loss of wheelchairs or other 
mobility or assistive devices.

[[Page 577]]



                  Subpart C_Information for Passengers



Sec.  39.51  What is the general requirement for PVOs' provision of 
auxiliary aids and services to passengers?

    (a) If you are a PVO that is a public entity, you must furnish 
appropriate auxiliary aids and services where necessary to afford an 
individual with a disability an equal opportunity to participate in, and 
enjoy the benefits of, a service, program or activity. In determining 
what type of auxiliary aid or service is necessary, you must give 
primary consideration to the requests of individuals with disabilities.
    (b) If you are a PVO that is a private entity, you must furnish 
appropriate auxiliary aids or services where necessary to ensure 
effective communication with individuals with disabilities.
    (c) If a provision of a particular auxiliary aid or service would 
result in a fundamental alteration in the nature of the goods, services, 
facilities, privileges, advantages, or accommodations being offered or 
in an undue burden, you shall provide an alternative auxiliary aid or 
service, if one exists, that would not result in a fundamental 
alteration or undue burden but would nevertheless ensure that, to the 
maximum extent possible, individuals with disabilities receive the 
goods, services, facilities, privileges, advantages, or accommodations 
you offer.
    (d) As a PVO, it is your responsibility, not that of a passenger 
with a disability, to provide needed auxiliary aids and services.



Sec.  39.53  What information must PVOs provide to passengers with a
disability?

    As a PVO, you must provide the following information to individuals 
who self-identify as having a disability (including those who are deaf 
or hard of hearing or who are blind or visually impaired) or who request 
disability-related information, or persons making inquiries on the 
behalf of such persons. The information you provide must, to the maximum 
extent feasible, be specific to the vessel a person is seeking to travel 
on or use.
    (a) The availability of accessible facilities on the vessel 
including, but not limited to, means of boarding the vessel, toilet 
rooms, staterooms, decks, dining, and recreational facilities.
    (b) Any limitations of the usability of the vessel or portions of 
the vessel by people with mobility impairments;
    (c) Any limitations on the accessibility of boarding and 
disembarking at ports at which the vessel will call (e.g., because of 
the use of inaccessible lighters or tenders as the means of coming to or 
from the vessel);
    (d) Any limitations on the accessibility of services or tours 
ancillary to the transportation provided by the vessel concerning which 
the PVO makes arrangements available to passengers;
    (e) Any limitations on the ability of a passenger to take a service 
animal off the vessel at foreign ports at which the vessel will call 
(e.g., because of quarantine regulations) and provisions for the care of 
an animal acceptable to the PVO that the passenger must meet when the 
passenger disembarks at a port at which the animal must remain aboard 
the vessel.
    (f) The services, including auxiliary aids and services, available 
to individuals who are deaf or hard of hearing or blind or visually 
impaired.
    (g) Any limitations on the ability of the vessel to accommodate 
passengers with a disability.
    (h) Any limitations on the accessibility of boarding and 
disembarking at ports at which the vessel will call and services or 
tours ancillary to the transportation provided by the vessel concerning 
which the PVO makes arrangements available to passengers.



Sec.  39.55  Must information and reservation services of PVOs be
accessible to individuals with hearing or vision impairments?

    This section applies to information and reservation services made 
available to persons in the United States.
    (a) If, as a PVO, you provide telephone reservation or information 
service to the public, you must make this service available to 
individuals who are deaf or hard-of-hearing and who use a text telephone 
(TTY) or a TTY relay service (TRS).

[[Page 578]]

    (1) You must make service to TTY/TRS users available during the same 
hours as telephone service for the general public.
    (2) Your response time to TTY/TRS calls must be equivalent to your 
response time for your telephone service to the general public.
    (3) You must meet this requirement by [date one year from the 
effective date of this Part].
    (b) If, as a PVO, you provide written (i.e., hard copy) information 
to the public, you must ensure that this information is able to be 
communicated effectively, on request, to persons with vision 
impairments. You must provide this information in the same language(s) 
in which you make it available to the general public.



Sec.  39.57  Must PVOs make copies of this rule available to passengers?

    As a PVO, you must keep a current copy of this Part on each vessel 
and each U.S. port or terminal you serve and make it available to 
passengers on request. If you are an entity that does not receive 
Federal financial assistance, you are not required to make this copy 
available in languages other than English. You must make it available in 
accessible formats on request, subject to the provisions of Sec.  
39.51(c).



             Subpart D_Accessibility of Landside Facilities



Sec.  39.61  What requirements must PVOs meet concerning the accessibility
of terminals and other landside facilities?

    As a PVO, you must comply with the following requirements with 
respect to all terminal and other landside facilities you own, lease, or 
control in the United States (including its territories, possessions, 
and commonwealths):
    (a) With respect to new facilities, you must do the following:
    (1) You must ensure that terminal facilities are readily accessible 
to and usable by individuals with disabilities, including individuals 
who use wheeled mobility assistive devices. You are deemed to comply 
with this obligation if the facilities meet the requirements of 49 CFR 
37.9, and the standards referenced in that section.
    (2) You must ensure that there is an accessible route between the 
terminal or other passenger waiting area and the boarding ramp or device 
used for the vessel. An accessible route is one meeting the requirements 
of the standards referenced in 49 CFR 37.9.
    (b) When a facility is altered, the altered portion must meet the 
same standards that would apply to a new facility.
    (c) With respect to an existing facility, your obligations are the 
following:
    (1) If you are a public entity, you must ensure that your terminals 
and other landside facilities meet program accessibility requirements, 
consistent with Department of Justice requirements at 28 CFR 35.150.
    (2) If you are a private entity, you are required to remove 
architectural barriers where doing so is readily achievable, i.e., 
easily accomplishable and able to be carried out without much difficulty 
or expense, consistent with Department of Justice requirements at 28 CFR 
36.304 or, if not readily achievable, ensure that your goods, services, 
facilities, privileges, advantages, or accommodations are available 
through alternative methods if those methods are readily achievable, 
consistent with Department of Justice regulations at 28 CFR 36.305.
    (d) Where you share responsibility for ensuring accessibility of a 
facility with another entity, you and the other entity are jointly and 
severally responsible for meeting applicable accessibility requirements.



Sec.  39.63  What modifications and auxiliary aids and services are
required at terminals and other landside facilities for individuals
with hearing or vision impairments?

    (a) As a PVO, you must ensure that the information you provide to 
the general public at terminals and other landside facilities is 
effectively communicated to individuals who are blind or who have 
impaired vision and deaf or hard-of-hearing individuals, through the use 
of auxiliary aids and services. To the extent that this information is 
not available to these individuals through accessible signage and/or 
verbal public address announcements or other means, your personnel must 
promptly provide the information to

[[Page 579]]

such individuals on their request, in languages (e.g., English, 
Norwegian, Japanese) in which the information is provided to the general 
public.
    (b) The types of information you must make available include, but 
are not limited to, information concerning ticketing, fares, schedules 
and delays, and the checking and claiming of luggage.

Subpart E--Accessibility of Vessels [Reserved]



    Subpart F_Assistance and Services to Passengers With Disabilities



Sec.  39.81  What assistance must PVOs provide to passengers with a
disability in getting to and from a passenger vessel?

    (a) As a PVO, if you provide, contract for, or otherwise arrange for 
transportation to and from a passenger vessel in the U.S. (e.g., a bus 
transfer from an airport to a vessel terminal), you must ensure that the 
transfer service is accessible to and usable by individuals with 
disabilities, as required by this Part.
    (b) You must also provide assistance requested by or on behalf of a 
passenger with a disability in moving between the terminal entrance (or 
a vehicle drop-off point adjacent to the entrance) of a terminal in the 
U.S. and the place where people get on or off the passenger vessel. This 
requirement includes assistance in accessing key functional areas of the 
terminal, such as ticket counters and baggage checking/claim. It also 
includes a brief stop upon request at an accessible toilet room.



Sec.  39.83  What are PVOs' obligations for assisting passengers with
a disability in getting on and off a passenger vessel?

    (a) If a passenger with a disability can readily get on or off a 
passenger vessel without assistance, you are not required to provide 
such assistance to the passenger. You must not require such a passenger 
with a disability to accept assistance from you in getting on or off the 
vessel unless it is provided to all passengers as a matter of course.
    (b) With respect to a passenger with a disability who is not able to 
get on or off a passenger vessel without assistance, you must promptly 
provide assistance that ensures that the passenger can get on or off the 
vessel.
    (c) When you have to provide assistance to a passenger with a 
disability in getting on or off a passenger vessel, you may use any 
available means to which the passenger consents (e.g., lifts, ramps, 
boarding chairs, assistance by vessel personnel).



Sec.  39.85  What services must PVOs provide to passengers with a 
disability on board a passenger vessel?

    As a PVO, you must provide services on board the vessel as requested 
by or on behalf of passengers with a disability, or when offered by PVO 
personnel and accepted by passengers with a disability, as follows:
    (a) Assistance in moving about the vessel, with respect to any 
physical barriers rendering an area not readily accessible and usable to 
the passenger.
    (b) If food is provided to passengers on the vessel, assistance in 
preparation for eating, such as opening packages and identifying food;
    (c) Effective communication with passengers who have vision 
impairments or who are deaf or hard-of-hearing, so that these passengers 
have timely access to information the PVO provides to other passengers 
(e.g., weather, on-board services, delays).



Sec.  39.87  What services are PVOs not required to provide to 
passengers with a disability on board a passenger vessel?

    As a PVO, you are not required to provide extensive special 
assistance to passengers with a disability. For purposes of this 
section, extensive special assistance includes the following activities:
    (a) Assistance in actual eating;
    (b) Assistance within a toilet room or assistance elsewhere on the 
vessel with elimination functions; and
    (c) Provision of medical equipment or services, or personal devices, 
except to the extent provided to all passengers.

[[Page 580]]



Sec.  39.89  What requirements apply to on-board safety briefings, 
information, and drills?

    As a PVO, you must comply with the following requirements with 
respect to safety briefings, information, or drills provided to 
passengers:
    (a) You must provide the briefings or other safety-related 
information through means that effectively communicate their content to 
persons with vision or hearing impairments, using auxiliary aids and 
services where necessary for effective communication. This includes 
providing written materials in alternative formats that persons with 
vision impairments can use.
    (b) You must not require any passenger with a disability to 
demonstrate that he or she has listened to, read, or understood the 
information presented, except to the extent that you impose such a 
requirement on all passengers. You must not take any action adverse to a 
qualified individual with a disability on the basis that the person has 
not ``accepted'' the briefing.
    (c) As a PVO, if you present on-board safety briefings to passengers 
on video screens, you must ensure that the safety-video presentation is 
accessible to passengers with impaired hearing (e.g., through use of 
captioning or placement of a sign language interpreter in the video).
    (d) You must provide whatever assistance is necessary to enable 
passengers with disabilities to participate fully in safety or emergency 
evacuation drills provided to all passengers.
    (e) You must maintain evacuation programs, information, and 
equipment in locations that passengers can readily access and use.



Sec.  39.91  Must PVOs permit passengers with a disability to travel
with service animals?

    (a) As a PVO, you must permit service animals to accompany 
passengers with a disability.
    (b) You must permit the service animal to accompany the passenger in 
all locations that passengers can use on a vessel, including in 
lifeboats.
    (c) You must permit the passenger accompanied by the service animal 
to bring aboard a reasonable quantity of food for the animal aboard the 
vessel at no additional charge. If your vessel provides overnight 
accommodations, you must also provide reasonable refrigeration space for 
the service animal food.
    (d) You must accept the following as evidence that an animal is a 
service animal: Identification cards, other written documentation, 
presence of harnesses, tags, and/or the credible verbal assurances of a 
passenger with a disability using the animal.
    (e) If the legal requirements of a foreign government (e.g., 
quarantine regulations) do not permit a service animal to disembark at a 
foreign port, as a PVO you may require the animal to remain on board 
while its user leaves the vessel. You must work with the animal's user 
to ensure that the animal is properly cared for during the user's 
absence.



Sec.  39.93  What wheelchairs and other assistive devices may passengers
with a disability bring onto a passenger vessel?

    (a) As a PVO subject to Title III of the ADA, you must permit 
individuals with mobility disabilities to use wheelchairs and manually 
powered mobility aids, such as walkers, crutches, canes, braces, or 
other similar devices designed for use by individuals with mobility 
disabilities in any areas open to pedestrian use.
    (b)(1) As A PVO subject to Title III of the ADA, you must make 
reasonable modifications in your policies, practices, or procedures to 
permit the use of other power-driven mobility devices by individuals 
with mobility disabilities, unless you can demonstrate that a device 
cannot be operated on board the vessel consistent with legitimate safety 
requirements you have established for the vessel.
    (2) In determining whether a particular other power-driven mobility 
device can be allowed on a specific vessel as a reasonable modification 
under paragraph (b)(1) of this section, the PVO must consider:
    (i) The type, size, weight, dimensions, and speed of the device;
    (ii) The vessel's volume of pedestrian traffic (which may vary at 
different times of the day, week, month, or year);

[[Page 581]]

    (iii) The vessel's design and operational characteristics (e.g., the 
size and balance requirements of the vessel, the density and placement 
of stationary devices, and the availability of storage for the device, 
if requested by the user);
    (iv) Whether legitimate safety requirements can be established to 
permit the safe operation of a device in the specific vessel; and
    (c)(1) As a PVO subject to Title III of the ADA, you must not ask an 
individual using a wheelchair or other power-driven mobility device 
questions about the nature and extent of the individual's disability.
    (2) You may ask a person using an other power-driven mobility device 
to provide a credible assurance that the mobility device is required 
because of the person's disability. In response to this inquiry, you 
must accept the presentation of a valid, State-issued disability parking 
placard or card, or State-issued proof of disability as a credible 
assurance that the use of the other power-driven mobility device is for 
the individual's mobility disability. In lieu of a valid, State-issued 
disability parking placard or card, or State-issued proof of disability, 
a PVO shall accept as a credible assurance a verbal representation not 
contradicted by observable fact, that the other power-driven mobility 
device is being used for a mobility disability.
    (d) As a PVO subject to Title II of the ADA, you must follow the 
requirements of paragraphs (a) through (c) of this section. In addition, 
any restriction you impose on the use of an other powered mobility 
device on your vessel must be limited to the minimum necessary to meet a 
legitimate safety requirement. For example, if a device can be 
accommodated in some spaces of the vessel but not others because of a 
legitimate safety requirement, you could not completely exclude the 
device from the vessel.
    (e) As a PVO, you are not required to permit passengers with a 
disability to bring wheelchairs or other powered mobility devices into 
lifeboats or other survival craft, in the context of an emergency 
evacuation of the vessel.



Sec.  39.95  May PVOs limit their liability for loss of or damage to
wheelchairs or other assistive devices?

    Consistent with any applicable requirements of international law, 
you must not apply any liability limits with respect to loss of or 
damage to wheeled mobility assistive devices or other assistive devices. 
The criterion for calculating the compensation for a lost, damaged, or 
destroyed wheelchair or other assistive device is the original purchase 
price of the device.



             Subpart G_Complaints and Enforcement Procedures



Sec.  39.101  What are the requirements for providing Complaints
Resolution Officials?

    (a) As a PVO, you must designate one or more Complaints Resolution 
Officials (CROs).
    (b) You must make a CRO available for contact on each vessel and at 
each terminal that you serve. The CRO may be made available in person or 
via telephone, if at no cost to the passenger. If a telephone link to 
the CRO is used, TTY or TRS service must be available so that persons 
with hearing impairments may readily communicate with the CRO. You must 
make CRO service available in the language(s) in which you make your 
other services available to the general public.
    (c) You must make passengers with a disability aware of the 
availability of a CRO and how to contact the CRO in the following 
circumstances:
    (1) In any situation in which any person complains or raises a 
concern with your personnel about discrimination, policies, or services 
with respect to passengers with a disability, and your personnel do not 
immediately resolve the issue to the customer's satisfaction or provide 
a requested accommodation, your personnel must immediately inform the 
passenger of the right to contact a CRO and the location and/or phone 
number of the CRO available on the vessel or at the terminal. Your 
personnel must provide this information to the passenger in a format he 
or she can use.
    (2) Your reservation agents, contractors, and Web sites must provide 
information equivalent to that required by

[[Page 582]]

paragraph (c)(1) of this section to passengers with a disability using 
those services.
    (d) Each CRO must be thoroughly familiar with the requirements of 
this Part and the PVO's procedures with respect to passengers with a 
disability. The CRO is intended to be the PVO's ``expert'' in compliance 
with the requirements of this Part.
    (e) You must ensure that each of your CROs has the authority to make 
dispositive resolution of complaints on behalf of the PVO. This means 
that the CRO must have the power to overrule the decision of any other 
personnel, except that the CRO may not be given authority to countermand 
a decision of the master of a vessel with respect to safety matters.



Sec.  39.103  What actions do CROs take on complaints?

    When a complaint is made directly to a CRO (e.g., orally, by phone, 
TTY) the CRO must promptly take dispositive action as follows:
    (a) If the complaint is made to a CRO before the action or proposed 
action of PVO personnel has resulted in a violation of a provision of 
this Part, the CRO must take, or direct other PVO personnel to take, 
whatever action is necessary to ensure compliance with this Part.
    (b) If an alleged violation of a provision of this Part has already 
occurred, and the CRO agrees that a violation has occurred, the CRO must 
provide to the complainant a written statement setting forth a summary 
of the facts and what steps, if any, the PVO proposes to take in 
response to the violation.
    (c) If the CRO determines that the PVO's action does not violate a 
provision of this Part, the CRO must provide to the complainant a 
written statement including a summary of the facts and the reasons, 
under this Part, for the determination.
    (d) The statements required to be provided under this section must 
inform the complainant of his or her right to complain to the Department 
of Transportation and/or Department of Justice. The CRO must provide the 
statement in person to the complainant in person if possible; otherwise, 
it must be transmitted to the complainant within 10 calendar days of the 
complaint.



Sec.  39.105  How must PVOs respond to written complaints?

    (a) As a PVO, you must respond to written complaints received by any 
means (e.g., letter, fax, e-mail, electronic instant message) concerning 
matters covered by this Part.
    (b) A passenger making a written complaint, must state whether he or 
she had contacted a CRO in the matter, provide the name of the CRO and 
the date of the contact, if available, and enclose any written response 
received from the CRO.
    (c) As a PVO, you are not required to respond to a complaint from a 
passenger postmarked or transmitted more than 45 days after the date of 
the incident.
    (d) As a PVO, you must make a dispositive written response to a 
written disability complaint within 30 days of its receipt. The response 
must specifically admit or deny that a violation of this part has 
occurred. The response must be effectively communicated to the 
recipient.
    (1) If you admit that a violation has occurred, you must provide to 
the complainant a written statement setting forth a summary of the facts 
and the steps, if any, you will take in response to the violation.
    (2) If you deny that a violation has occurred, your response must 
include a summary of the facts and your reasons, under this Part, for 
the determination.
    (3) Your response must also inform the complainant of his or her 
right to pursue DOT or DOJ enforcement action under this part, as 
applicable. DOT has enforcement authority under Title II of the ADA for 
public entities and under section 504 of the Rehabilitation Act for 
entities that receive Federal financial assistance; DOJ has enforcement 
authority under Title III of the ADA for private entities.



Sec.  39.107  Where may persons obtain assistance with matters covered
by this regulation?

    A passenger, PVO, or any other person may obtain information, 
guidance, or other assistance concerning 49 CFR

[[Page 583]]

part 39 from then DOT Departmental Office of Civil Rights and/or DOT 
Office of General Counsel, 1200 New Jersey Avenue, SE., Washington, DC 
20590.



Sec.  39.109  What enforcement actions may be taken under this Part?

    (a) The Department of Transportation investigates complaints and 
conducts reviews or other inquiries into the compliance with this Part 
of PVOs that are Title II entities.
    (b) As a PVO subject to Title II of the ADA, you must be prepared to 
provide to the Department of Transportation a written explanation of 
your action in any situation in which you exclude or restrict an 
individual with a disability or any mobility or other assistive device 
used by such an individual with respect to the use of your vessel.
    (c) The Department of Transportation investigates complaints 
conducts compliance reviews or other inquiries into the compliance of 
this Part of PVOs, whether private or public entities, that receive 
Federal financial assistance from the Department, under section 504 of 
the Rehabilitation Act of 1973, as amended.
    (d) The Department may refer any matter concerning the compliance of 
PVOs with this Part to the Department of Justice for enforcement action.
    (e) The Department of Justice investigates complaints and conducts 
reviews or other inquiries into the compliance with this Part of PVOs 
that are Title III entities.
    (f) The Department of Justice may file suit in Federal court against 
both Title II and Title III PVOs for violations of this part.



PART 40_PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING
PROGRAMS--Table of Contents



                   Subpart A_Administrative Provisions

Sec.
40.1 Who does this regulation cover?
40.3 What do the terms used in this part mean?
40.5 Who issues authoritative interpretations of this regulation?
40.7 How can you get an exemption from a requirement in this regulation?

                   Subpart B_Employer Responsibilities

40.11 What are the general responsibilities of employers under this 
          regulation?
40.13 How do DOT drug and alcohol tests relate to non-DOT tests?
40.14 What collection information must employers provide to collectors?
40.15 May an employer use a service agent to meet DOT drug and alcohol 
          testing requirements?
40.17 Is an employer responsible for obtaining information from its 
          service agents?
40.19 [Reserved]
40.21 May an employer stand down an employee before the MRO has 
          completed the verification process?
40.23 What actions do employers take after receiving verified test 
          results?
40.25 Must an employer check on the drug and alcohol testing record of 
          employees it is intending to use to perform safety-sensitive 
          duties?
40.26 What form must an employer use to report Management Information 
          System (MIS) data to a DOT agency?
40.27 May an employer require an employee to sign a consent or release 
          in connection with the DOT drug and alcohol testing program?

                  Subpart C_Urine Collection Personnel

40.31 Who may collect specimens for DOT drug testing?
40.33 What training requirements must a collector meet for urine 
          collection?
40.35 What training requirements must a collector meet for oral fluid 
          collection?
40.36 What information about the DER must employers provide to 
          collectors?

 Subpart D_Collection Sites, Forms, Equipment and Supplies Used in DOT 
                    Urine and Oral Fluid Collections

40.40 What form is used to document a DOT urine collection?
40.41 May employers use the CCF for non-Federal collections or non-
          Federal forms for DOT collections?
40.42 Where does a urine collection for a DOT drug test take place?
40.43 What steps must operators of collection sites and collectors take 
          to protect the security and integrity of urine collections?
40.44 What materials are used to collect urine specimens?
40.45 What materials are used to send urine specimens to the laboratory?
40.47 Where does an oral fluid collection for a DOT drug test take 
          place?
40.48 What steps must operators of collection sites and collectors take 
          to protect the security and integrity of oral fluid 
          collections?

[[Page 584]]

40.49 What materials are used to collect oral fluid specimens?
40.51 What materials are used to send oral fluid specimens to the 
          laboratory?

                     Subpart E_Specimen Collections

40.61 What are the preliminary steps in the drug testing collection 
          process?
40.63 What steps does the collector take in the collection process 
          before the employee provides a urine specimen?
40.65 What does the collector check for when the employee presents a 
          urine specimen?
40.67 When and how is a directly observed urine collection conducted?
40.69 How is a monitored urine collection conducted?
40.71 How does the collector prepare the urine specimen?
40.72 What steps does the collector take in the collection process 
          before the employee provides an oral fluid specimen?
40.73 How is an oral fluid specimen collected?
40.74 How does the collector prepare the oral fluid specimens?
40.75-40.78 [Reserved]
40.79 How is the collection process completed?

                   Subpart F_Drug Testing Laboratories

40.81 What laboratories may be used for DOT drug testing?
40.82 What drugs do laboratories test for?
40.83 How do laboratories process incoming specimens?
40.84 How long does the laboratory retain specimens after testing?
40.85 What are the cutoff concentrations for urine drug tests?
40.86 What is urine validity testing, and are laboratories required to 
          conduct it?
40.87 What validity tests must laboratories conduct on primary urine 
          specimens?
40.88 What criteria do laboratories use to establish that a urine 
          specimen is dilute or substituted?
40.89 What are the adulterant cutoff concentrations for initial and 
          confirmation urine tests?
40.90 What criteria do laboratories use to establish that a urine 
          specimen is invalid?
40.91 What are the cutoff concentrations for oral fluid drug tests?
40.92 What is oral fluid validity testing, and are laboratories required 
          to conduct it?
40.93 What validity tests must laboratories conduct on primary oral 
          fluid specimens?
40.97 What do laboratories report and how do they report it?
40.101 What relationship may a laboratory have with an MRO?
40.107 Who may inspect laboratories?
40.109 What documentation must the laboratory keep, and for how long?
40.111 When and how must a laboratory disclose statistical summaries and 
          other information it maintains?
40.113 Where is other information concerning laboratories found in this 
          regulation?

     Subpart G_Medical Review Officers and the Verification Process

40.121 Who is qualified to act as an MRO?
40.123 What are the MRO's responsibilities in the DOT drug testing 
          program?
40.125 What relationship may an MRO have with a laboratory?
40.127 What are the MRO's functions in reviewing negative test results?
40.129 What are the MRO's functions in reviewing laboratory confirmed 
          non-negative drug test results?
40.131 How does the MRO or DER notify an employee of the verification 
          process after receiving laboratory confirmed non-negative drug 
          test results?
40.133 Without interviewing the employee, under what circumstances may 
          the MRO verify a test result as positive, or as a refusal to 
          test because of adulteration or substitution, or as cancelled 
          because the test was invalid?
40.135 What does the MRO tell the employee at the beginning of the 
          verification interview?
40.137 On what basis does the MRO verify test results involving 
          marijuana, cocaine, amphetamines, semi-synthetic opioids, or 
          PCP?
40.139 On what basis does the MRO verify test results involving 6-
          acetylmorphine, codeine, and morphine?
40.141 How does the MRO obtain information for the verification 
          decision?
40.143 [Reserved]
40.145 On what basis does the MRO verify test results involving 
          adulteration or substitution?
40.147 [Reserved]
40.149 May the MRO change a verified drug test result?
40.151 What are MROs prohibited from doing as part of the verification 
          process?
40.153 How does the MRO notify employees of their right to a test of the 
          split specimen?
40.155 What does the MRO do when a negative or positive test result is 
          also dilute?
40.157 [Reserved]
40.159 What does the MRO do when a drug test result is invalid?
40.160 What does the MRO do when a valid test result cannot be produced 
          and a negative result is required?
40.161 What does the MRO do when a drug test specimen is rejected for 
          testing?

[[Page 585]]

40.162 What must MROs do with multiple verified results for the same 
          testing event?
40.163 How does the MRO report drug test results?
40.165 To whom does the MRO transmit reports of drug test results?
40.167 How are MRO reports of drug results transmitted to the employer?
40.169 Where is other information concerning the role of MROs and the 
          verification process found in this regulation?

                     Subpart H_Split Specimen Tests

40.171 How does an employee request a test of a split specimen?
40.173 Who is responsible for paying for the test of a split specimen?
40.175 What steps does the first laboratory take with a split specimen?
40.177 What does the second laboratory do with the split specimen when 
          it is tested to reconfirm the presence of a drug or drug 
          metabolite?
40.179 What does the second laboratory do with the split specimen when 
          it is tested to reconfirm an adulterated test result?
40.181 What does the second laboratory do with the split specimen when 
          it is tested to reconfirm a substituted test result?
40.183 What information do laboratories report to MROs regarding split 
          specimen results?
40.185 Through what methods and to whom must a laboratory report split 
          specimen results?
40.187 What does the MRO do with split specimen laboratory results?
40.189 Where is other information concerning split specimens found in 
          this regulation?

                    Subpart I_Problems in Drug Tests

40.191 What is a refusal to take a DOT drug test, and what are the 
          consequences?
40.193 What happens when an employee does not provide a sufficient 
          amount of urine for a drug test?
40.195 What happens when an individual is unable to provide a sufficient 
          amount of specimen for a pre-employment, follow-up, or return-
          to-duty test because of a permanent or long-term medical 
          condition?
40.197 What happens when an employer receives a report of a dilute urine 
          specimen?
40.199 What problems always cause a drug test to be cancelled?
40.201 What problems always cause a drug test to be cancelled and may 
          result in a requirement for another collection?
40.203 What problems cause a drug test to be cancelled unless they are 
          corrected?
40.205 How are drug test problems corrected?
40.207 What is the effect of a cancelled drug test?
40.208 What problems require corrective action but do not result in the 
          cancellation of a test?
40.209 What procedural problems do not result in the cancellation of a 
          test and do not require correction?
40.210 What kinds of drug tests are permitted under the regulations?

                   Subpart J_Alcohol Testing Personnel

40.211 Who conducts DOT alcohol tests?
40.213 What training requirements must STTs and BATs meet?
40.215 What information about the DER do employers have to provide to 
          BATs and STTs?
40.217 Where is other information on the role of STTs and BATs found in 
          this regulation?

 Subpart K_Testing Sites, Forms, Equipment and Supplies Used in Alcohol 
                                 Testing

40.221 Where does an alcohol test take place?
40.223 What steps must be taken to protect the security of alcohol 
          testing sites?
40.225 What form is used for an alcohol test?
40.227 May employers use the ATF for non-DOT tests, or non-DOT forms for 
          DOT tests?
40.229 What devices are used to conduct alcohol screening tests?
40.231 What devices are used to conduct alcohol confirmation tests?
40.233 What are the requirements for proper use and care of EBTs?
40.235 What are the requirements for proper use and care of ASDs?

                    Subpart L_Alcohol Screening Tests

40.241 What are the first steps in any alcohol screening test?
40.243 What is the procedure for an alcohol screening test using an EBT 
          or non-evidential breath ASD?
40.245 What is the procedure for an alcohol screening test using a 
          saliva ASD or a breath tube ASD?
40.247 What procedures does the BAT or STT follow after a screening test 
          result?

                  Subpart M_Alcohol Confirmation Tests

40.251 What are the first steps in an alcohol confirmation test?
40.253 What are the procedures for conducting an alcohol confirmation 
          test?
40.255 What happens next after the alcohol confirmation test result?

[[Page 586]]

                  Subpart N_Problems in Alcohol Testing

40.261 What is a refusal to take an alcohol test, and what are the 
          consequences?
40.263 What happens when an employee is unable to provide a sufficient 
          amount of saliva for an alcohol screening test?
40.265 What happens when an employee is unable to provide a sufficient 
          amount of breath for an alcohol test?
40.267 What problems always cause an alcohol test to be cancelled?
40.269 What problems cause an alcohol test to be cancelled unless they 
          are corrected?
40.271 How are alcohol testing problems corrected?
40.273 What is the effect of a cancelled alcohol test?
40.275 What is the effect of procedural problems that are not sufficient 
          to cancel an alcohol test?
40.277 Are alcohol tests other than saliva or breath permitted under 
          these regulations?

 Subpart O_Substance Abuse Professionals and the Return-to-Duty Process

40.281 Who is qualified to act as a SAP?
40.283 How does a certification organization obtain recognition for its 
          members as SAPs?
40.285 When is a SAP evaluation required?
40.287 What information is an employer required to provide concerning 
          SAP services to an employee who has a DOT drug and alcohol 
          regulation violation?
40.289 Are employers required to provide SAP and treatment services to 
          employees?
40.291 What is the role of the SAP in the evaluation, referral, and 
          treatment process of an employee who has violated DOT agency 
          drug and alcohol testing regulations?
40.293 What is the SAP's function in conducting the initial evaluation 
          of an employee?
40.295 May employees or employers seek a second SAP evaluation if they 
          disagree with the first SAP's recommendations?
40.297 Does anyone have the authority to change a SAP's initial 
          evaluation?
40.299 What is the SAP's role and what are the limits on a SAP's 
          discretion in referring employees for education and treatment?
40.301 What is the SAP's function in the follow-up evaluation of an 
          employee?
40.303 What happens if the SAP believes the employee needs additional 
          treatment, aftercare, or support group services even after the 
          employee returns to safety-sensitive duties?
40.305 How does the return-to-duty process conclude?
40.307 What is the SAP's function in prescribing the employee's follow-
          up tests?
40.309 What are the employer's responsibilities with respect to the 
          SAP's directions for follow-up tests?
40.311 What are requirements concerning SAP reports?
40.313 Where is other information on SAP functions and the return-to-
          duty process found in this regulation?

          Subpart P_Confidentiality and Release of Information

40.321 What is the general confidentiality rule for drug and alcohol 
          test information?
40.323 May program participants release drug or alcohol test information 
          in connection with legal proceedings?
40.325 [Reserved]
40.327 When must the MRO report medical information gathered in the 
          verification process?
40.329 What information must laboratories, MROs, and other service 
          agents release to employees?
40.331 To what additional parties must employers and service agents 
          release information?
40.333 What records must employers keep?

         Subpart Q_Roles And Responsibilities of Service Agents

40.341 Must service agents comply with DOT drug and alcohol testing 
          requirements?
40.343 What tasks may a service agent perform for an employer?
40.345 In what circumstances may a C/TPA act as an intermediary in the 
          transmission of drug and alcohol testing information to 
          employers?
40.347 What functions may C/TPAs perform with respect administering 
          testing?
40.349 What records may a service agent receive and maintain?
40.351 What confidentiality requirements apply to service agents?
40.353 What principles govern the interaction between MROs and other 
          service agents?
40.355 What limitations apply to the activities of service agents?

                  Subpart R_Public Interest Exclusions

40.361 What is the purpose of a public interest exclusion (PIE)?
40.363 On what basis may the Department issue a PIE?
40.365 What is the Department's policy concerning starting a PIE 
          proceeding?
40.367 Who initiates a PIE proceeding?
40.369 What is the discretion of an initiating official in starting a 
          PIE proceeding?

[[Page 587]]

40.371 On what information does an initiating official rely in deciding 
          whether to start a PIE proceeding?
40.373 Before starting a PIE proceeding, does the initiating official 
          give the service agent an opportunity to correct problems?
40.375 How does the initiating official start a PIE proceeding?
40.377 Who decides whether to issue a PIE?
40.379 How do you contest the issuance of a PIE?
40.381 What information do you present to contest the proposed issuance 
          of a PIE?
40.383 What procedures apply if you contest the issuance of a PIE?
40.385 Who bears the burden of proof in a PIE proceeding?
40.387 What matters does the Director decide concerning a proposed PIE?
40.389 What factors may the Director consider?
40.391 What is the scope of a PIE?
40.393 How long does a PIE stay in effect?
40.395 Can you settle a PIE proceeding?
40.397 When does the Director make a PIE decision?
40.399 How does the Department notify service agents of its decision?
40.401 How does the Department notify employers and the public about a 
          PIE?
40.403 Must a service agent notify its clients when the Department 
          issues a PIE?
40.405 May the Federal courts review PIE decisions?
40.407 May a service agent ask to have a PIE reduced or terminated?
40.409 What does the issuance of a PIE mean to transportation employers?
40.411 What is the role of the DOT Inspector General's office?
40.413 How are notices sent to service agents?

Appendix A to Part 40--DOT Standards for Urine Collection Kits
Appendix B to Part 40--Oral Fluid Collection Kit Contents
Appendix C to Part 40 [Reserved]
Appendix D to Part 40--DOT Drug Testing Semi-Annual Laboratory Report to 
          Employers
Appendix E to Part 40--Drug Testing Semi-Annual Laboratory Report to DOT
Appendix F to Part 40--Report Format: Split Specimen Failure To 
          Reconfirm
Appendix G to Part 40--SAP Equivalency Requirements for Certification 
          Organizations
Appendix H to Part 40--Drug and Alcohol Testing Information that C/TPAs 
          May Transmit to Employers
Appendix I to Part 40--Alcohol Testing Form (ATF)
Appendix J to Part 40--DOT Drug and Alcohol Testing Management 
          Information System (MIS) Data Collection Form

     Authority: 49 U.S.C. 102, 301, 322, 5331, 20140, 31306, and 54101 
et seq.

    Source: 65 FR 79526, Dec. 19, 2000, unless otherwise noted.

    Editorial Note: Nomenclature changes to part 40 appear at 73 FR 
33329, June 12, 2008.



                   Subpart A_Administrative Provisions



Sec.  40.1  Who does this regulation cover?

    (a) This part tells all parties who conduct drug and alcohol tests 
required by Department of Transportation (DOT) agency regulations how to 
conduct these tests and what procedures to use.
    (b) This part concerns the activities of transportation employers, 
safety-sensitive transportation employees (including self-employed 
individuals, contractors and volunteers as covered by DOT agency 
regulations), and service agents.
    (c) Nothing in this part is intended to supersede or conflict with 
the implementation of the Federal Railroad Administration's post-
accident testing program (see 49 CFR 219.200).



Sec.  40.3  What do the terms used in this part mean?

    In this part, the terms listed in this section have the following 
meanings:
    Adulterated specimen. A specimen that has been altered, as evidenced 
by test results showing either a substance that is not a normal 
constituent for that type of specimen or showing an abnormal 
concentration of an endogenous substance.
    Affiliate. Persons are affiliates of one another if, directly or 
indirectly, one controls or has the power to control the other, or a 
third party controls or has the power to control both. Indicators of 
control include, but are not limited to: interlocking management or 
ownership; shared interest among family members; shared facilities or 
equipment; or common use of employees. Following the issuance of a 
public interest exclusion, an organization having the same or similar 
management, ownership, or principal employees as the service agent 
concerning whom a public interest exclusion is in effect is regarded as 
an affiliate. This definition is used in connection with the public

[[Page 588]]

interest exclusion procedures of Subpart R of this part.
    Air blank. In evidential breath testing devices (EBTs) using gas 
chromatography technology, a reading of the device's internal standard. 
In all other EBTs, a reading of ambient air containing no alcohol.
    Alcohol. The intoxicating agent in beverage alcohol, ethyl alcohol 
or other low molecular weight alcohols, including methyl or isopropyl 
alcohol.
    Alcohol concentration. The alcohol in a volume of breath expressed 
in terms of grams of alcohol per 210 liters of breath as indicated by a 
breath test under this part.
    Alcohol confirmation test. A subsequent test using an EBT, following 
a screening test with a result of 0.02 or greater, that provides 
quantitative data about the alcohol concentration.
    Alcohol screening device (ASD). A breath or saliva device, other 
than an EBT, that is approved by the National Highway Traffic Safety 
Administration (NHTSA) and appears on ODAPC's Web page for ``Approved 
Screening Devices to Measure Alcohol in Bodily Fluids'' because it 
conforms to the model specifications from NHTSA.
    Alcohol screening test. An analytic procedure to determine whether 
an employee may have a prohibited concentration of alcohol in a breath 
or saliva specimen.
    Alcohol testing site. A place selected by the employer where 
employees present themselves for the purpose of providing breath or 
saliva for an alcohol test.
    Alcohol use. The drinking or swallowing of any beverage, liquid 
mixture or preparation (including any medication), containing alcohol.
    Aliquot. A fractional part of a specimen used for testing. It is 
taken as a sample representing the whole specimen.
    Alternate specimen. An authorized specimen, other than the type of 
specimen previously collected or attempted to be collected.
    Breath Alcohol Technician (BAT). A person who instructs and assists 
employees in the alcohol testing process and operates an evidential 
breath testing device.
    Cancelled test. A drug or alcohol test that has a problem identified 
that cannot be or has not been corrected, or which this part otherwise 
requires to be cancelled. A cancelled test is neither a positive nor a 
negative test.
    Chain of custody. The procedure used to document the handling of the 
urine specimen from the time the employee gives the specimen to the 
collector until the specimen is destroyed. This procedure uses the 
Federal Drug Testing Custody and Control Form (CCF) as approved by the 
Office of Management and Budget.
    Collection container. A container used to collect a specimen.
    Collection site. A place selected by the employer where employees 
present themselves for the purpose of providing a specimen for a drug 
test.
    Collector. A person who instructs and assists employees at a 
collection site, who receives and makes an initial inspection of the 
specimen provided by those employees, and who initiates and completes 
the CCF.
    Commercial Driver's License Drug and Alcohol Clearinghouse 
(Clearinghouse). A database, administered by the Federal Motor Carrier 
Safety Administration, containing records of commercial motor vehicle 
drivers' violations of controlled substances and alcohol testing program 
requirements, as set forth in part 382 of this title, as well as their 
return-to-duty status.
    Confirmatory drug test. A second analytical procedure performed on a 
different aliquot of the original specimen to identify and quantify a 
specific drug or drug metabolite.
    Confirmatory validity test. A second test performed on a different 
aliquot of the original urine specimen to further support a validity 
test result.
    Confirmed drug test. A confirmation test result received by an MRO 
from a laboratory.
    Consortium/Third-party administrator (C/TPA). A service agent that 
provides or coordinates the provision of a variety of drug and alcohol 
testing services to employers. C/TPAs typically perform administrative 
tasks concerning the operation of the employers' drug and alcohol 
testing programs. This term includes, but is not limited to, groups of 
employers who join together

[[Page 589]]

to administer, as a single entity, the DOT drug and alcohol testing 
programs of its members. C/TPAs are not ``employers'' for purposes of 
this part.
    Continuing education. Training for substance abuse professionals 
(SAPs) who have completed qualification training and are performing SAP 
functions, designed to keep SAPs current on changes and developments in 
the DOT drug and alcohol testing program.
    Cutoff. The analytical value (e.g., drug or drug metabolite 
concentration) used as the decision point to determine a result (e.g., 
negative, positive, adulterated, invalid, or substituted) or the need 
for further testing.
    Designated employer representative (DER). An employee authorized by 
the employer to take immediate action(s) to remove employees from 
safety-sensitive duties, or cause employees to be removed from these 
covered duties, and to make required decisions in the testing and 
evaluation processes. The DER also receives test results and other 
communications for the employer, consistent with the requirements of 
this part. Service agents cannot act as DERs.
    Dilute specimen. A urine specimen with creatinine and specific 
gravity values that are lower than expected for human urine.
    DOT, The Department, DOT Agency. These terms encompass all DOT 
agencies, including, but not limited to, the Federal Aviation 
Administration (FAA), the Federal Railroad Administration (FRA), the 
Federal Motor Carrier Safety Administration (FMCSA), the Federal Transit 
Administration (FTA), the National Highway Traffic Safety Administration 
(NHTSA), the Pipeline and Hazardous Materials Safety Administration 
(PHMSA), and the Office of the Secretary (OST). For purposes of this 
part, the United States Coast Guard (USCG), in the Department of 
Homeland Security, is considered to be a DOT agency for drug testing 
purposes only since the USCG regulation does not incorporate Part 40 for 
its alcohol testing program. These terms include any designee of a DOT 
agency.
    Drugs. The drugs for which tests are required under this part and 
DOT agency regulations are marijuana, cocaine, amphetamines, 
phencyclidine (PCP), and opioids.
    Employee. Any person who is designated in a DOT agency regulation as 
subject to drug testing and/or alcohol testing. The term includes 
individuals currently performing safety-sensitive functions designated 
in DOT agency regulations and applicants for employment subject to pre-
employment testing. For purposes of drug testing under this part, the 
term employee has the same meaning as the term ``donor'' as found on CCF 
and related guidance materials produced by the Department of Health and 
Human Services.
    Employer. A person or entity employing one or more employees 
(including an individual who is self-employed) subject to DOT agency 
regulations requiring compliance with this part. The term includes an 
employer's officers, representatives, and management personnel. Service 
agents are not employers for the purposes of this part.
    Error Correction Training. Training provided to BATs, collectors, 
and screening test technicians (STTs) following an error that resulted 
in the cancellation of a drug or alcohol test. Error correction training 
must be provided in person or by a means that provides real-time 
observation and interaction between the instructor and trainee.
    Evidential Breath Testing Device (EBT). A device that is approved by 
the National Highway Traffic Safety Administration (NHTSA) for the 
evidential testing of breath at the .02 and .04 alcohol concentrations, 
and appears on ODAPC's Web page for ``Approved Evidential Breath 
Measurement Devices'' because it conforms with the model specifications 
available from NHTSA.
    HHS. The Department of Health and Human Services or any designee of 
the Secretary, Department of Health and Human Services.
    Initial drug test. The first test used to differentiate a negative 
specimen from one that requires further testing for drugs or drug 
metabolites.
    Initial specimen validity test. The first test used to determine if 
a specimen is adulterated, diluted, substituted, or invalid.
    Invalid result. The result reported by an HHS-certified in 
accordance with

[[Page 590]]

the criteria established by HHS when a positive, negative, adulterated, 
or substituted result cannot be established for a specific drug or 
specimen validity test.
    Laboratory. Any U.S. laboratory certified by HHS under the National 
Laboratory Certification Program as meeting the minimum standards set by 
HHS; or, in the case of foreign laboratories, a laboratory approved for 
participation by DOT under this part.
    Limit of Detection (LOD). The lowest concentration at which the 
analyte (e.g., drug or drug metabolite) can be identified.
    Limit of Quantitation (LOQ). For quantitative assays, the lowest 
concentration at which the identity and concentration of the analyte 
(e.g., drug or drug metabolite) can be accurately established.
    Medical Review Officer (MRO). A person who is a licensed physician 
and who is responsible for receiving and reviewing laboratory results 
generated by an employer's drug testing program and evaluating medical 
explanations for certain drug test results.
    Negative result. The result reported by an HHS-certified laboratory 
to an MRO when a specimen contains no drug or the concentration of the 
drug is less than the cutoff concentration for the drug or drug class 
and the specimen is a valid specimen.
    Non-negative specimen. A specimen that is reported as adulterated, 
substituted, positive (for drug(s) or drug metabolite(s)), or invalid.
    Office of Drug and Alcohol Policy and Compliance (ODAPC). The office 
in the Office of the Secretary, DOT, that is responsible for 
coordinating drug and alcohol testing program matters within the 
Department and providing information concerning the implementation of 
this part.
    Oral fluid specimen. A specimen that is collected from an employee's 
oral cavity and is a combination of physiological fluids produced 
primarily by the salivary glands. An oral fluid specimen is considered 
to be a direct observation collection for all purposes of this part.
    Oxidizing adulterant. A substance that acts alone or in combination 
with other substances to oxidize drugs or drug metabolites to prevent 
the detection of the drug or drug metabolites, or affects the reagents 
in either the initial or confirmatory drug test.
    Primary specimen. In drug testing, the specimen bottle that is 
opened and tested by a first laboratory to determine whether the 
employee has a drug or drug metabolite in his or her system; and for the 
purpose of specimen validity testing. The primary specimen is the 
portion of the donor's subdivided specimen designated as the primary 
(``A'') specimen by the collector to distinguish it from the split 
(``B'') specimen, as defined in this section.
    Positive result. The result reported by an HHS-certified laboratory 
when a specimen contains a drug or drug metabolite equal to or greater 
than the cutoff concentrations.
    Qualification Training. The training required in order for a 
collector, BAT, MRO, SAP, or STT to be qualified to perform their 
functions in the DOT drug and alcohol testing program. Qualification 
training may be provided by any appropriate means (e.g., classroom 
instruction, internet application, CD-ROM, video).
    Reconfirmed. The result reported for a split (Bottle B) specimen 
when the second HHS-certified laboratory corroborates the original 
result reported for the primary (Bottle A) specimen.
    Refresher Training. The training required periodically for qualified 
collectors, BATs, and STTs to review basic requirements and provide 
instruction concerning changes in technology (e.g., new testing methods 
that may be authorized) and amendments, interpretations, guidance, and 
issues concerning this part and DOT agency drug and alcohol testing 
regulations. Refresher training can be provided by any appropriate means 
(e.g., classroom instruction, internet application, CD-ROM, video).
    Rejected for testing. The result reported by an HHS-certified 
laboratory when no tests are performed for a specimen because of a fatal 
flaw or a correctable flaw that is not corrected.
    Screening Test Technician (STT). A person who instructs and assists 
employees in the alcohol testing process and operates an ASD.

[[Page 591]]

    Secretary. The Secretary of Transportation or the Secretary's 
designee.
    Service agent. Any person or entity, other than an employee of the 
employer, who provides services to employers and/or employees in 
connection with DOT drug and alcohol testing requirements. This 
includes, but is not limited to, collectors, BATs and STTs, 
laboratories, MROs, substance abuse professionals, and C/TPAs. To act as 
service agents, persons and organizations must meet DOT qualifications, 
if applicable. Service agents are not employers for purposes of this 
part.
    Shipping container. A container that is used for transporting and 
protecting specimen bottles and associated documents from the collection 
site to the laboratory.
    Specimen. Fluid, breath, or other material collected from an 
employee at the collection site for the purpose of a drug or alcohol 
test.
    Specimen bottle. The bottle that, after being sealed and labeled 
according to the procedures in this part, is used to hold a primary 
(``A'') or split (``B'') specimen during transportation to the 
laboratory. In the context of oral fluid testing, it may be referred to 
as a ``vial,'' ``tube,'' or ``bottle.''
    Split specimen. In drug testing, the specimen that is sent to a 
first laboratory and stored with its original seal intact, and which is 
transported to a second laboratory for retesting at the employee's 
request following MRO verification of the primary specimen as positive, 
adulterated or substituted.
    Split specimen collection. A collection in which the single specimen 
collected is divided into two separate specimen bottles, the primary 
specimen (Bottle A) and the split specimen (Bottle B).
    SSN or Employee ID No. This number serves as a unique identifier 
that must be used on the Federal Drug Testing Custody and Control Form 
(CCF) or Alcohol Testing Form (ATF) for a donor, on the MRO's reports, 
on SAP reports, or on other documents that are required under this part. 
For all purposes of this part, this term means: only the Commercial 
Driver's License (CDL) Number and State of issuance for drivers tested 
under the authority of the Federal Motor Carrier Safety Administration 
(FMCSA); and, for all drivers and other safety-sensitive employees 
tested under the authority of the other DOT agencies, this can be the 
individual's actual Social Security Number, a unique identifier issued 
by the employer, a State-issued identification card number, a State-
issued driver's license number (including a CDL number) or any other 
State-issued or federally-issued identification number.
    Stand-down. The practice of temporarily removing an employee from 
the performance of safety-sensitive functions based only on a report 
from a laboratory to the MRO of a confirmed positive test for a drug or 
drug metabolite, an adulterated test, or a substituted test, before the 
MRO has completed verification of the test result.
    Substance Abuse Professional (SAP). A person who evaluates employees 
who have violated a DOT drug and alcohol regulation and makes 
recommendations concerning education, treatment, follow-up testing, and 
aftercare.
    Substituted specimen. An employee's specimen not consistent with a 
normal human specimen, as determined by HHS (e.g., a urine specimen, 
with creatinine and specific gravity values that are so diminished, or 
so divergent that they are not consistent with normal human urine).
    Undiluted (neat) oral fluid. An oral fluid specimen to which no 
other solid or liquid has been added. For example: A collection device 
that uses a diluent (or other component, process, or method that 
modifies the volume of the testable specimen) must collect at least 1 mL 
of undiluted (neat) oral fluid.
    Urine specimen. Urine collected from an employee at the collection 
site for the purpose of a drug test.
    Verified test. A drug test result or validity testing result from an 
HHS-certified laboratory that has undergone review and final 
determination by the MRO.

[65 FR 79526, Dec. 19, 2000, as amended at 66 FR 41950, Aug. 9, 2001; 71 
FR 49384, Aug. 23, 2006; 71 FR 55347, Sept. 22, 2006; 73 FR 35969, June 
25, 2008; 75 FR 49861, Aug. 16, 2010; 76 FR 59577, Sept. 27, 2011; 80 FR 
19553, Apr. 13, 2015; 81 FR 52365, Aug. 8, 2016; 82 FR 52243, Nov. 13, 
2017; 88 FR 27636, May 2, 2023]

[[Page 592]]



Sec.  40.5  Who issues authoritative interpretations of this regulation?

    ODAPC and the DOT Office of General Counsel (OGC) provide written 
interpretations of the provisions of this part. These written DOT 
interpretations are the only official and authoritative interpretations 
concerning the provisions of this part. DOT agencies may incorporate 
ODAPC/OGC interpretations in written guidance they issue concerning drug 
and alcohol testing matters. Only Part 40 interpretations issued after 
August 1, 2001, are considered valid.



Sec.  40.7  How can you get an exemption from a requirement in this regulation?

    (a) If you want an exemption from any provision of this part, you 
must request it in writing from the Office of the Secretary of 
Transportation, under the provisions and standards of 49 CFR part 5. You 
must send requests for an exemption to the following address: Department 
of Transportation, Deputy Assistant General Counsel for Regulation and 
Enforcement, 1200 New Jersey Avenue, SE., Washington, DC 20590.
    (b) Under the standards of 49 CFR part 5, we will grant the request 
only if the request documents special or exceptional circumstances, not 
likely to be generally applicable and not contemplated in connection 
with the rulemaking that established this part, that make your 
compliance with a specific provision of this part impracticable.
    (c) If we grant you an exemption, you must agree to take steps we 
specify to comply with the intent of the provision from which an 
exemption is granted.
    (d) We will issue written responses to all exemption requests.



                   Subpart B_Employer Responsibilities



Sec.  40.11  What are the general responsibilities of employers under
this regulation?

    (a) As an employer, you are responsible for meeting all applicable 
requirements and procedures of this part.
    (b) You are responsible for all actions of your officials, 
representatives, and agents (including service agents) in carrying out 
the requirements of the DOT agency regulations.
    (c) All agreements and arrangements, written or unwritten, between 
and among employers and service agents concerning the implementation of 
DOT drug and alcohol testing requirements are deemed, as a matter of 
law, to require compliance with all applicable provisions of this part 
and DOT agency drug and alcohol testing regulations. Compliance with 
these provisions is a material term of all such agreements and 
arrangements.



Sec.  40.13  How do DOT drug and alcohol tests relate to non-DOT tests?

    (a) DOT tests must be completely separate from non-DOT tests in all 
respects.
    (b) DOT tests must take priority and must be conducted and completed 
before a non-DOT test is begun. When conducting a urine DOT drug test, 
you must discard any excess urine left over from a DOT test and collect 
a separate urine void for the subsequent non-DOT test.
    (c) Except as provided in paragraph (d) of this section, you must 
not perform any tests on DOT specimens other than those tests 
specifically authorized by this part or DOT agency regulations. For 
example, you must not test a DOT specimen for additional drugs. In 
addition, a laboratory is prohibited from making a DOT specimen 
available for a DNA test or other types of specimen identity testing.
    (d) When a DOT urine drug test collection is conducted as part of a 
physical examination required by DOT agency regulations, it is 
permissible to conduct medical tests related to this physical 
examination (e.g., for glucose) on any specimen remaining in the 
collection container after the DOT portion has been sealed into the 
specimen bottles.
    (e) A non-DOT drug or alcohol test administered, as part of a 
physical examination, is not a DOT drug or alcohol test for purposes of 
this part and/or related DOT agency drug and alcohol testing rules, if 
that test was performed to determine if an employee is medically 
qualified for a license or certificate. Consequently, the results of

[[Page 593]]

such a test do not have consequences under this part.
    (f) No one is permitted to change or disregard the results of DOT 
tests based on the results of non-DOT tests. For example, as an employer 
you must not disregard a verified positive DOT drug test result because 
the employee presents a negative test result from a blood or urine 
specimen collected by the employee's physician or a DNA test result 
purporting to question the identity of the DOT specimen.
    (g) As an employer, you must not use the CCF or the ATF in your non-
DOT drug and alcohol testing programs. This prohibition includes the use 
of the DOT forms with references to DOT programs and agencies crossed 
out. You also must always use the CCF and ATF for all your DOT-mandated 
drug and alcohol tests.
    (h) No one is permitted to conduct a DOT drug or alcohol test on an 
individual who is not a DOT-regulated employee, as defined by the DOT 
agency regulations.

[65 FR 79526, Dec. 19, 2000, as amended at 88 FR 27637, May 2, 2023]



Sec.  40.14  What collection information must employers provide to
collectors?

    As an employer, or an employer's service agent--for example a C/TPA, 
you must ensure the collector has the following information when 
conducting a urine specimen collection for you:
    (a) Full name of the employee being tested.
    (b) SSN or Employee ID No.
    (c) Laboratory name and address (can be pre-printed on the CCF).
    (d) Employer name, address, phone number, and fax number (can be 
pre-printed on the CCF at Step 1-A).
    (e) DER information required at Sec.  40.35 of this part.
    (f) MRO name, address, phone number, and fax number (can be pre-
printed on the CCF at Step 1-B).
    (g) The DOT Agency which regulates the employee's safety-sensitive 
duties (the checkmark can pre-printed in the appropriate box on the CCF 
at Step 1-D).
    (h) Test reason, as appropriate: Pre-employment; Random; Reasonable 
Suspicion/Reasonable Cause; Post-Accident; Return-to-Duty; and Follow-
up.
    (i) Whether the test is to be observed or not (see Sec.  40.67 of 
this part).
    (j) (Optional) C/TPA name, address, phone, and fax number (can be 
pre-printed on the CCF).
    (k) Specimen type to be collected (i.e., oral fluid or urine).

[75 FR 59107, Sept. 27, 2010, as amended at 88 FR 27637, May 2, 2023]



Sec.  40.15  May an employer use a service agent to meet DOT drug and
alcohol testing requirements?

    (a) As an employer, you may use a service agent to perform the tasks 
needed to comply with this part and DOT agency drug and alcohol testing 
regulations, consistent with the requirements of Subpart Q and other 
applicable provisions of this part.
    (b) As an employer, you are responsible for ensuring that the 
service agents you use meet the qualifications set forth in this part 
(e.g., Sec.  40.121 for MROs). You may require service agents to show 
you documentation that they meet the requirements of this part (e.g., 
documentation of MRO qualifications required by Sec.  40.121(e)).
    (c) You remain responsible for compliance with all applicable 
requirements of this part and other DOT drug and alcohol testing 
regulations, even when you use a service agent. If you violate this part 
or other DOT drug and alcohol testing regulations because a service 
agent has not provided services as our rules require, a DOT agency can 
subject you to sanctions. Your good faith use of a service agent is not 
a defense in an enforcement action initiated by a DOT agency in which 
your alleged noncompliance with this part or a DOT agency drug and 
alcohol regulation may have resulted from the service agent's conduct.
    (d) As an employer, you must not permit a service agent to act as 
your DER.



Sec.  40.17  Is an employer responsible for obtaining information from
its service agents?

    Yes, as an employer, you are responsible for obtaining information 
required by this part from your service agents. This is true whether or 
not you

[[Page 594]]

choose to use a C/TPA as an intermediary in transmitting information to 
you. For example, suppose an applicant for a safety-sensitive job takes 
a pre-employment drug test, but there is a significant delay in your 
receipt of the test result from an MRO or C/TPA. You must not assume 
that ``no news is good news'' and permit the applicant to perform 
safety-sensitive duties before receiving the result. This is a violation 
of the Department's regulations.



Sec.  40.19  [Reserved]



Sec.  40.21  May an employer stand down an employee before the MRO has
completed the verification process?

    (a) As an employer, you are prohibited from standing employees down, 
except consistent with a waiver a DOT agency grants under this section.
    (b) You may make a request to the concerned DOT agency for a waiver 
from the prohibition of paragraph (a) of this section. Such a waiver, if 
granted, permits you to stand an employee down following the MRO's 
receipt of a laboratory report of a confirmed positive test for a drug 
or drug metabolite, an adulterated test, or a substituted test 
pertaining to the employee.
    (1) For this purpose, the concerned DOT agency is the one whose drug 
and alcohol testing rules apply to the majority of the covered employees 
in your organization. The concerned DOT agency uses its applicable 
procedures for considering requests for waivers.
    (2) Before taking action on a waiver request, the concerned DOT 
agency coordinates with other DOT agencies that regulate the employer's 
other covered employees.
    (3) The concerned DOT agency provides a written response to each 
employer that petitions for a waiver, setting forth the reasons for the 
agency's decision on the waiver request.
    (c) Your request for a waiver must include, as a minimum, the 
following elements:
    (1) Information about your organization:
    (i) Your determination that standing employees down is necessary for 
safety in your organization and a statement of your basis for it, 
including any data on safety problems or incidents that could have been 
prevented if a stand-down procedure had been in place;
    (ii) Data showing the number of confirmed laboratory positive, 
adulterated, and substituted test results for your employees over the 
two calendar years preceding your waiver request, and the number and 
percentage of those test results that were verified positive, 
adulterated, or substituted by the MRO;
    (iii) Information about the work situation of the employees subject 
to stand-down, including a description of the size and organization of 
the unit(s) in which the employees work, the process through which 
employees will be informed of the stand-down, whether there is an in-
house MRO, and whether your organization has a medical disqualification 
or stand-down policy for employees in situations other than drug and 
alcohol testing; and
    (iv) A statement of which DOT agencies regulate your employees.
    (2) Your proposed written company policy concerning stand-down, 
which must include the following elements:
    (i) Your assurance that you will distribute copies of your written 
policy to all employees that it covers;
    (ii) Your means of ensuring that no information about the confirmed 
positive, adulterated, or substituted test result or the reason for the 
employee's temporary removal from performance of safety-sensitive 
functions becomes available, directly or indirectly, to anyone in your 
organization (or subsequently to another employer) other than the 
employee, the MRO and the DER;
    (iii) Your means of ensuring that all covered employees in a 
particular job category in your organization are treated the same way 
with respect to stand-down;
    (iv) Your means of ensuring that a covered employee will be subject 
to stand-down only with respect to the actual performance of safety-
sensitive duties;
    (v) Your means of ensuring that you will not take any action 
adversely affecting the employee's pay and benefits pending the 
completion of the MRO's verification process. This includes continuing 
to pay the employee during the period of the stand-down in the same

[[Page 595]]

way you would have paid him or her had he or she not been stood down;
    (vi) Your means of ensuring that the verification process will 
commence no later than the time an employee is temporarily removed from 
the performance of safety-sensitive functions and that the period of 
stand-down for any employee will not exceed five days, unless you are 
informed in writing by the MRO that a longer period is needed to 
complete the verification process; and
    (vii) Your means of ensuring that, in the event that the MRO 
verifies the test negative or cancels it--
    (A) You return the employee immediately to the performance of 
safety-sensitive duties;
    (B) The employee suffers no adverse personnel or financial 
consequences as a result;
    (C) For a verified negative result, the employee will not be 
required to submit an alternate specimen for the same testing action. 
For a cancelled result, the employee could be required to submit an 
alternate specimen on a re-collection; and
    (D) You maintain no individually identifiable record that the 
employee had a confirmed laboratory positive, adulterated, or 
substituted test result (i.e., you maintain a record of the test only as 
a negative or cancelled test).
    (d) The Administrator of the concerned DOT agency, or his or her 
designee, may grant a waiver request only if he or she determines that, 
in the context of your organization, there is a high probability that 
the procedures you propose will effectively enhance safety and protect 
the interests of employees in fairness and confidentiality.
    (1) The Administrator, or his or her designee, may impose any 
conditions he or she deems appropriate on the grant of a waiver.
    (2) The Administrator, or his or her designee, may immediately 
suspend or revoke the waiver if he or she determines that you have 
failed to protect effectively the interests of employees in fairness and 
confidentiality, that you have failed to comply with the requirements of 
this section, or that you have failed to comply with any other 
conditions the DOT agency has attached to the waiver.
    (e) You must not stand employees down in the absence of a waiver, or 
inconsistent with the terms of your waiver. If you do, you are in 
violation of this part and DOT agency drug testing regulations, and you 
are subject to enforcement action by the DOT agency just as you are for 
other violations of this part and DOT agency rules.

[65 FR 79526, Dec. 19, 2000, as amended at 88 FR 27637, May 2, 2023]



Sec.  40.23  What actions do employers take after receiving verified
test results?

    (a) As an employer who receives a verified positive drug test 
result, you must immediately remove the employee involved from 
performing safety-sensitive functions. You must take this action upon 
receiving the initial report of the verified positive test result. Do 
not wait to receive the written report or the result of a split specimen 
test.
    (b) As an employer who receives a verified adulterated or 
substituted drug test result, you must consider this a refusal to test 
and immediately remove the employee involved from performing safety-
sensitive functions. You must take this action on receiving the initial 
report of the verified adulterated or substituted test result. Do not 
wait to receive the written report or the result of a split specimen 
test.
    (c) As an employer who receives an alcohol test result of 0.04 or 
higher, you must immediately remove the employee involved from 
performing safety-sensitive functions. If you receive an alcohol test 
result of 0.02-0.039, you must temporarily remove the employee involved 
from performing safety-sensitive functions, as provided in applicable 
DOT agency regulations. Do not wait to receive the written report of the 
result of the test.
    (d) As an employer, when an employee has a verified positive, 
adulterated, or substituted test result, or has otherwise violated a DOT 
agency drug and alcohol regulation, you must not return the employee to 
the performance of safety-sensitive functions until or unless the 
employee successfully completes the return-to-duty process of Subpart O 
of this part.

[[Page 596]]

    (e) As an employer who receives a drug test result indicating that 
the employee's specimen was dilute, take action as provided in Sec.  
40.197.
    (f) As an employer who receives a drug test result indicating that 
the employee's test was cancelled because it was invalid and that a 
second collection must take place under direct observation--
    (1) You must immediately direct the employee to provide a new 
specimen under direct observation (either an oral fluid specimen or a 
urine specimen under direct observation).
    (2) You must not attach consequences to the finding that the test 
was invalid other than collecting a new specimen under direct 
observation.
    (3) You must not give any advance notice of this test requirement to 
the employee.
    (4) You must instruct the collector to note on the CCF the same 
reason (e.g., random test, post-accident test) and DOT Agency (e.g., 
check DOT and FMCSA) as for the original collection.
    (5) You must ensure that the collector conducts the collection under 
direct observation (either an oral fluid specimen or a urine specimen 
under direct observation).
    (g) As an employer who receives a cancelled test result when a 
negative result is required (e.g., pre-employment, return-to-duty, or 
follow-up test), you must direct the employee to provide another 
specimen immediately.
    (h) As an employer, you may also be required to take additional 
actions required by DOT agency regulations (e.g., FAA rules require some 
positive drug tests to be reported to the Federal Air Surgeon).
    (i) As an employer, you must not alter a drug or alcohol test result 
transmitted to you by an MRO, BAT, or C/TPA.

[65 FR 79526, Dec. 19, 2000, as amended at 71 FR 49384, Aug. 23, 2006; 
73 FR 35970, June 25, 2008; 75 FR 59107, Sept. 27, 2010; 88 FR 27637, 
May 2, 2023]



Sec.  40.25  Must an employer check on the drug and alcohol testing 
record of employees it is intending to use to perform safety-sensitive
duties?

    (a)(1) Yes, as an employer, you must, after obtaining an employee's 
written consent, request the information about the employee listed in 
paragraphs (b) through (j) of this section. This requirement applies 
only to employees seeking to begin performing safety-sensitive duties 
for you for the first time (i.e., a new hire, an employee transferring 
into a safety-sensitive position). If the employee refuses to provide 
this written consent, you must not permit the employee to perform 
safety-sensitive functions.
    (2) If you are an employer regulated by FMCSA, you must comply with 
the requirements of this section by using the FMCSA's Drug and Alcohol 
Clearinghouse in accordance with 49 CFR 382.71(a). In addition, you must 
continue to comply with the requirements of this Sec.  40.25 when 
checking an employee's testing history with employers regulated by a DOT 
operating administration other than FMCSA.
    (3) If you are an employer regulated by FMCSA, with a prospective 
employee subject to drug and alcohol testing with a DOT agency other 
than FMCSA, you must continue to request the information about the 
employee listed in paragraphs (b) through (j) of this section. For 
example, if you are an employer regulated by both FMCSA and PHMSA, and 
you are hiring an employee to perform functions regulated by both DOT 
agencies, then you must query FMCSA's Clearinghouse to satisfy FMCSA's 
requirements and you must request the information listed in paragraphs 
(b) through (j) of this section to satisfy PHMSA's requirements.
    (b) You must request the information listed in this paragraph (b) 
from DOT-regulated employers who have employed the employee during any 
period during the two years before the date of the employee's 
application or transfer:
    (1) Alcohol tests with a result of 0.04 or higher alcohol 
concentration;
    (2) Verified positive drug tests;
    (3) Refusals to be tested (including verified adulterated or 
substituted drug test results);
    (4) Other violations of DOT agency drug and alcohol testing 
regulations; and

[[Page 597]]

    (5) With respect to any employee who violated a DOT drug and alcohol 
regulation, documentation of the employee's successful completion of DOT 
return-to-duty requirements (including follow-up tests). If the previous 
employer does not have information about the return-do-duty process 
(e.g., an employer who did not hire an employee who tested positive on a 
pre-employment test), you must seek to obtain this information from the 
employee.
    (c) The information obtained from a previous employer includes any 
drug or alcohol test information obtained from previous employers under 
this section or other applicable DOT agency regulations.
    (d) If feasible, you must obtain and review this information before 
the employee first performs safety-sensitive functions. If this is not 
feasible, you must obtain and review the information as soon as 
possible. However, you must not permit the employee to perform safety-
sensitive functions after 30 days from the date on which the employee 
first performed safety-sensitive functions, unless you have obtained or 
made and documented a good faith effort to obtain this information.
    (e) If you obtain information that the employee has violated a DOT 
agency drug and alcohol regulation, you must not use the employee to 
perform safety-sensitive functions unless you also obtain information 
that the employee has subsequently complied with the return-to-duty 
requirements of Subpart O of this part and DOT agency drug and alcohol 
regulations.
    (f) You must provide to each of the employers from whom you request 
information under paragraph (b) of this section written consent for the 
release of the information cited in paragraph (a) of this section.
    (g) The release of information under this section must be in any 
written form (e.g., fax, e-mail, letter) that ensures confidentiality. 
As the previous employer, you must maintain a written record of the 
information released, including the date, the party to whom it was 
released, and a summary of the information provided.
    (h) If you are an employer from whom information is requested under 
paragraph (b) of this section, you must, after reviewing the employee's 
specific, written consent, immediately release the requested information 
to the employer making the inquiry.
    (i) As the employer requesting the information required under this 
section, you must maintain a written, confidential record of the 
information you obtain or of the good faith efforts you made to obtain 
the information. You must retain this information for three years from 
the date of the employee's first performance of safety-sensitive duties 
for you.
    (j) As the employer, you must also ask the employee whether he or 
she has tested positive, or refused to test, on any pre-employment drug 
or alcohol test administered by an employer to which the employee 
applied for, but did not obtain, safety-sensitive transportation work 
covered by DOT agency drug and alcohol testing rules during the past two 
years. If the employee admits that he or she had a positive test or a 
refusal to test, you must not use the employee to perform safety-
sensitive functions for you, until and unless the employee documents 
successful completion of the return-to-duty process (see paragraphs 
(b)(5) and (e) of this section).

[65 FR 79526, Dec. 19, 2000, as amended at 88 FR 27637, May 2, 2023]



Sec.  40.26  What form must an employer use to report Management
Information System (MIS) data to a DOT agency?

    As an employer, when you are required to report MIS data to a DOT 
agency, you must use the U.S. Department of Transportation Drug and 
Alcohol Testing MIS Data Collection Form to report that data. You must 
use the form and instructions referenced at appendix J to part 40. You 
must submit the MIS report in accordance with rule requirements (e.g., 
dates for submission; selection of companies required to submit, and 
method of reporting) established by the DOT agency regulating your 
operation.

[84 FR 16773, Apr. 23, 2019, as amended at 88 FR 27638, May 2, 2023]

[[Page 598]]



Sec.  40.27  May an employer require an employee to sign a consent
or release in connection with the DOT drug and alcohol testing program?

    No, as an employer, you must not require an employee to sign a 
consent, release, waiver of liability, or indemnification agreement with 
respect to any part of the drug or alcohol testing process covered by 
this part (including, but not limited to, collections, laboratory 
testing, MRO and SAP services).

[66 FR 41950, Aug. 9, 2001]



                  Subpart C_Urine Collection Personnel



Sec.  40.31  Who may collect specimens for DOT drug testing?

    (a) Collectors meeting the requirements of this subpart are the only 
persons authorized to collect urine specimens for DOT drug testing.
    (b) A urine collector must meet training requirements of Sec.  
40.33.
    (c) An oral fluid collector must meet the training requirements of 
Sec.  40.35.
    (d) To avoid the appearance of a conflict of interest, if you are 
the immediate supervisor of the employee being tested, you must not act 
as the collector when that employee is tested, unless no other collector 
is available and you are permitted to do so under DOT agency drug and 
alcohol regulations.
    (e) You must not act as the collector for the employee being tested 
if you work for a HHS-certified laboratory (e.g., as a technician or 
accessioner) and could link the employee with a urine specimen, drug 
testing result, or laboratory report.
    (f) Employees are not permitted to be their own collector.
    (1) An employee who is a qualified collector is not permitted to be 
their own collector; another qualified collector must perform the 
collection in accordance with this part.
    (2) To avoid a potential conflict of interest, a collector must not 
be related to the employee being tested (e.g., spouse, ex-spouse, 
relative) or a close personal friend.

[65 FR 79526, Dec. 19, 2000, as amended at 88 FR 27637, May 2, 2023]



Sec.  40.33  What training requirements must a collector meet for
urine collection?

    To be permitted to act as a urine collector in the DOT drug testing 
program, you must meet each of the requirements of this section:
    (a) Basic information. You must be knowledgeable about this part, 
the current ``DOT Urine Specimen Collection Procedures Guidelines,'' and 
DOT agency regulations applicable to the employers for whom you perform 
collections. DOT agency regulations, the DOT Urine Specimen Collection 
Procedures Guidelines, and other materials are available from ODAPC 
(Department of Transportation, 1200 New Jersey Avenue SE., Washington 
DC, 20590, 202-366-3784, or on the ODAPC Web site (https://
www.transportation.gov/odapc). You must keep current on any changes to 
these materials. You must subscribe to the ODAPC list-serve at: https://
www.transportation.gov/odapc/get-odapc-email-updates.
    (b) Qualification training. You must receive qualification training 
meeting the requirements of this paragraph. Qualification training must 
provide instruction on the following subjects:
    (1) All steps necessary to complete a collection correctly and the 
proper completion and transmission of the CCF;
    (2) ``Problem'' collections (e.g., situations like ``shy bladder'' 
and attempts to tamper with a specimen);
    (3) Fatal flaws, correctable flaws, and how to correct problems in 
collections; and
    (4) The collector's responsibility for maintaining the integrity of 
the collection process, ensuring the privacy of employees being tested, 
ensuring the security of the specimen, and avoiding conduct or 
statements that could be viewed as offensive or inappropriate;
    (c) Initial Proficiency Demonstration. Following your completion of 
qualification training under paragraph (b) of this section, you must 
demonstrate proficiency in collections under this part by completing 
five consecutive error-free mock collections.
    (1) The five mock collections must include two uneventful collection 
scenarios, one insufficient quantity of urine scenario, one temperature 
out of

[[Page 599]]

range scenario, and one scenario in which the employee refuses to sign 
the CCF and initial the specimen bottle tamper-evident seal.
    (2) Another person must monitor and evaluate your performance, in 
person or by a means that provides real-time observation and interaction 
between the instructor and trainee, and attest in writing that the mock 
collections are ``error-free.'' This person must be a qualified 
collector who has demonstrated necessary knowledge, skills, and 
abilities by--
    (i) Regularly conducting DOT drug test collections for a period of 
at least a year;
    (ii) Conducting collector training under this part for a year; or
    (iii) Successfully completing a ``train the trainer'' course.
    (d) You must meet the requirements of paragraphs (b) and (c) of this 
section before you begin to perform collector functions.
    (e) Refresher training. No less frequently than every five years 
from the date on which you satisfactorily complete the requirements of 
paragraphs (b) and (c) of this section, you must complete refresher 
training that meets all the requirements of paragraphs (b) and (c) of 
this section.
    (f) Error correction training. If you make a mistake in the 
collection process that causes a test to be cancelled (i.e., a fatal or 
uncorrected flaw), you must undergo error correction training. This 
training must occur within 30 days of the date you are notified of the 
error that led to the need for retraining. Errors that cause 
cancellation but occur outside the collection process (e.g., when a 
specimen is crushed or otherwise damaged during the transportation 
process, or is lost in transit), the cancellation would not be the 
result of an error by the collector during the collection process and 
does not require the collector to be retrained.
    (1) Error correction training must be provided and your proficiency 
documented in writing by a person who meets the requirements of 
paragraph (c)(2) of this section.
    (2) Error correction training is required to cover only the subject 
matter area(s) in which the error that caused the test to be cancelled 
occurred.
    (3) As part of the error correction training, you must demonstrate 
your proficiency in the collection procedures of this part by completing 
three consecutive error-free mock collections. The mock collections must 
include one uneventful scenario and two scenarios related to the area(s) 
in which your error(s) occurred. The person providing the training must 
monitor and evaluate your performance and attest in writing that the 
mock collections were ``error-free.''
    (g) Documentation. You must maintain documentation showing that you 
currently meet all requirements of this section. You must provide this 
documentation on request to DOT agency representatives and to employers 
and C/TPAs who are using or negotiating to use your services.

[65 FR 79526, Dec. 19, 2000; 66 FR 3885, Jan. 17, 2001, as amended at 66 
FR 41950, Aug. 9, 2001; 82 FR 52244, Nov. 13, 2017; 88 FR 27638, May 2, 
2023]



Sec.  40.35  What training requirements must a collector meet for oral
fluid collection?

    To be permitted to act as an oral fluid collector in the DOT drug 
testing program, you must meet each of the requirements of this section:
    (a) Basic information. You must be knowledgeable about this part, 
the current ``DOT Oral Fluid Specimen Collection Procedures 
Guidelines,'' and DOT agency regulations applicable to the employers for 
whom you perform collections. DOT agency regulations, guidelines, and 
other materials are available from ODAPC (Department of Transportation, 
1200 New Jersey Avenue SE, Washington DC, 20590, 202-366-3784, or on the 
ODAPC website (https://www.transportation.gov/odapc). You must keep 
current on any changes to these materials. You must subscribe to the 
ODAPC list-serve at: https://www.transportation.gov/odapc/get-odapc-
email-updates.
    (b) Qualification training. You must receive qualification training 
meeting the requirements of this paragraph (b). Qualification training 
must provide instruction on the following subjects:
    (1) Training on the testing procedures of this part;

[[Page 600]]

    (2) Training to proficiency in the operation of the particular oral 
fluid collection device(s) you will be using.
    (3) All steps necessary to complete a collection correctly and the 
proper completion and transmission of the CCF;
    (4) ``Problem'' collections (e.g., situations like ``dry mouth'' and 
attempts to tamper with a specimen);
    (5) Fatal flaws, correctable flaws, and how to correct problems in 
collections; and
    (6) The collector's responsibility for maintaining the integrity of 
the collection process, ensuring the privacy of employees being tested, 
ensuring the security of the specimen, and avoiding conduct or 
statements that could be viewed as offensive or inappropriate.
    (c) Initial proficiency demonstration. Following your completion of 
qualification training under paragraph (b) of this section, you must 
demonstrate proficiency in collections under this part by completing 
five consecutive error-free mock collections for each device you will 
use.
    (1) The five mock collections for each device must include one 
uneventful collection scenario, one insufficient specimen quantity 
scenario; one scenario in which the employee has something in their 
mouth that might interfere with the collection; one scenario in which 
the employee attempts to tamper with the specimen; and one scenario in 
which the employee refuses to sign the CCF. For each of the five mock 
collections, the collector must check the expiration date of the device, 
show it to the employee, and record the date on the CCF used. The 
collector must ensure, when applying the labels, they do not cover the 
expiration dates.
    (2) Another person must monitor and evaluate your performance, in 
person or by a means that provides real-time observation and interaction 
between you and the qualified collector, who must attest in writing that 
the mock collections are ``error-free.'' This person must be a qualified 
collector who has demonstrated necessary knowledge, skills, and 
abilities by--
    (i) Regularly conducting DOT drug test collections for a period of 
at least one year;
    (ii) Conducting collector training under this part for at least one 
year; or
    (iii) Successfully completing a ``train the trainer'' course.
    (d) Schedule for qualification training and initial proficiency 
demonstration. You must meet the requirements of paragraphs (b) and (c) 
of this section before you begin to perform collector functions.
    (e) Refresher training. No less frequently than every five years 
from the date on which you satisfactorily complete the requirements of 
paragraphs (b) and (c) of this section, you must complete refresher 
training that meets all the requirements of paragraphs (b) and (c).
    (f) Error correction training. If you make a mistake in the 
collection process that causes a test to be cancelled (i.e., a fatal or 
uncorrected flaw), you must undergo error correction training. This 
training must occur within 30 days of the date you are notified of the 
error that led to the need for retraining.
    (1) Error correction training must be provided and your proficiency 
documented in writing by a person who meets the requirements of 
paragraph (c)(2) of this section.
    (2) Error correction training is required to cover only the subject 
matter area(s) in which the error that caused the test to be cancelled 
occurred.
    (3) As part of the error correction training, you must demonstrate 
your proficiency in the collection procedures of this part by completing 
three consecutive error-free mock collections. The mock collections must 
include one uneventful scenario and two scenarios related to the area(s) 
in which your error(s) occurred. The person providing the training must 
monitor and evaluate your performance and attest in writing that the 
mock collections were ``error-free.''
    (g) Documentation. You must maintain documentation showing that you 
currently meet all requirements of this section. You must provide this 
documentation on request to DOT agency representatives and to employers 
and C/TPAs who are using or negotiating to use your services.

[88 FR 27638, May 2, 2023]

[[Page 601]]



Sec.  40.36  What information about the DER must employers provide to
collectors?

    As an employer, you must provide to collectors the name and 
telephone number of the appropriate DER (and C/TPA, where applicable) to 
contact about any problems or issues that may arise during the testing 
process.

[65 FR 79526, Dec. 19, 2000. Redesignated at 88 FR 27639, May 2, 2023]



 Subpart D_Collection Sites, Forms, Equipment and Supplies Used in DOT 
                    Urine and Oral Fluid Collections



Sec.  40.40  What form is used to document a DOT collection?

    (a) The Federal Drug Testing Custody and Control Form (CCF) must be 
used to document every collection required by the DOT drug testing 
program. You may view this form on the Department's website (https://
www.transportation.gov/odapc) or the HHS website (https://
www.workplace.samhsa.gov).
    (b) You must not use a non-Federal form or an expired CCF to conduct 
a DOT collection. As a laboratory, C/TPA or other party that provides 
CCFs to employers, collection sites, or other customers, you must not 
provide copies of an expired CCF to these participants. You must also 
affirmatively notify these participants that they must not use an 
expired CCF.
    (c) As a participant in the DOT drug testing program, you are not 
permitted to modify or revise the CCF except as follows:
    (1) You may include, in the area outside the border of the form, 
other information needed for billing or other purposes necessary to the 
collection process.
    (2) The CCF must include the names, addresses, telephone numbers and 
any other appropriate contact information (e.g., an email address of the 
employer and the MRO), including the DER's name and contact information. 
All of this information must be preprinted, typed, or handwritten. Fax 
numbers may be included but are not required. The MRO information must 
include the physician's name and address, as opposed to only a generic 
clinic, health care organization, company name, or post office box. This 
information is required, and an employer, collector, service agent or 
any other party is prohibited from omitting it. In addition, a C/TPA's 
name, address, telephone and fax numbers, and any other appropriate 
contact information should be included, but is not required. The 
employer may use a C/TPA's address in place of its own, but must 
continue to include its name, telephone and fax numbers, and any other 
appropriate contact information.
    (3) As an employer you may preprint the box in Step 1-D of the CCF 
for the DOT agency under whose authority the test will occur.
    (4) As a collector, you may use a CCF with your name, address, 
telephone number, and fax number preprinted, but under no circumstances 
may you sign the form before the collection event. If a collection takes 
place at a clinic, the actual address of the clinic should be used, not 
a corporate address of the collection company. If the collection takes 
place onsite at the employer, the employer's address must be noted as 
the collection site address. If the collection takes place in a ``mobile 
unit'' or at an accident site, the collector must enter the actual 
location address of the collection or as near an approximation as 
possible. The collector must ensure that the required collector 
telephone number is the number that the laboratory, MRO, or employer may 
use to directly contact the individual collector and/or the collector's 
supervisor during the collection site's business hours. The collector 
must not provide a number for a call center.
    (5) When using an electronic CCF, you must establish adequate 
confidentiality and security measures to ensure that confidential 
employee records are not available to unauthorized persons. This 
includes protecting the physical security of records, access controls, 
and computer security measures to safeguard confidential data in 
electronic form.
    (d) Under no circumstances may the CCF transmit personal identifying 
information about an employee (other

[[Page 602]]

than a SSN or Employee ID No.) to a laboratory.
    (e) As an employer, you may use an equivalent foreign-language 
version of the CCF approved by ODAPC. You may use such a non-English 
language form only in a situation where both the employee and collector 
understand and can use the form in that language.
    (f) An employer who uses an electronic CCF must ensure that the 
collection site, the primary and split laboratories, and MRO have 
compatible systems, and that the employee and any other program 
participants in the testing process will receive a legible copy of the 
CCF.

[65 FR 79526, Dec. 19, 2000, as amended at 66 FR 41950, Aug. 9, 2001; 75 
FR 59107, Sept. 27, 2010; 76 FR 59577, Sept. 27, 2011; 80 FR 19553, Apr. 
13, 2015; 82 FR 52244, Nov. 13, 2017. Redesignated and amended at 88 FR 
27639, May 2, 2023]



Sec.  40.41  May employers use the CCF for non-Federal collections or 
non-Federal forms for DOT collections?

    (a) No, as an employer, you are prohibited from using the CCF for 
non-Federal collections. You are also prohibited from using non-Federal 
forms for DOT collections. Doing either subjects you to enforcement 
action under DOT agency regulations.
    (b) (1) In the rare case where the collector, either by mistake or 
as the only means to conduct a test under difficult circumstances (e.g., 
post-accident or reasonable suspicion test with insufficient time to 
obtain the CCF), uses a non-Federal form for a DOT collection, the use 
of a non-Federal form does not present a reason for the laboratory to 
reject the specimen for testing or for an MRO to cancel the result.
    (2) The use of the non-Federal form is a ``correctable flaw.'' As an 
MRO, to correct the problem you must follow the procedures of Sec.  
40.205(b)(2).

[65 FR 79526, Dec. 19, 2000, as amended at 66 FR 41950, Aug. 9, 2001. 
Redesignated and amended at 88 FR 27639, June 1, 2023]



Sec.  40.42  Where does a urine collection for a DOT drug test take
place?

    (a) A urine collection for a DOT drug test must take place in a 
collection site meeting the requirements of this section.
    (b) If you are operating a collection site, you must ensure that it 
meets the security requirements of Sec.  40.43.
    (c) If you are operating a collection site, you must have all 
necessary personnel, materials, equipment, facilities and supervision to 
provide for the collection, temporary storage, and shipping of urine 
specimens to a laboratory, and a suitable clean surface for writing.
    (d) Your collection site must include a facility for urination 
described in either paragraph (e) or paragraph (f) of this section.
    (e) The first, and preferred, type of facility for urination that a 
collection site may include is a single-toilet room, having a full-
length privacy door, within which urination can occur.
    (1) No one but the employee may be present in the room during the 
collection, except for the observer in the event of a directly observed 
collection.
    (2) You must have a source of water for washing hands, that, if 
practicable, should be external to the closed room where urination 
occurs. If an external source is not available, you may meet this 
requirement by securing all sources of water and other substances that 
could be used for adulteration and substitution (e.g., water faucets, 
soap dispensers) and providing moist towelettes outside the closed room.
    (f) The second type of facility for urination that a collection site 
may include is a multistall restroom.
    (1) Such a site must provide substantial visual privacy (e.g., a 
toilet stall with a partial-length door) and meet all other applicable 
requirements of this section.
    (2) If you use a multi-stall restroom, you must either--
    (i) Secure all sources of water and other substances that could be 
used for adulteration and substitution (e.g., water faucets, soap 
dispensers) and place bluing agent in all toilets or secure the toilets 
to prevent access; or
    (ii) Conduct all collections in the facility as monitored 
collections (see Sec.  40.69 for procedures). This is the only 
circumstance in which you may conduct a monitored collection.

[[Page 603]]

    (3) No one but the employee may be present in the multistall 
restroom during the collection, except for the monitor in the event of a 
monitored collection or the observer in the event of a directly observed 
collection.
    (g) A collection site may be in a medical facility, a mobile 
facility (e.g., a van), a dedicated collection facility, or any other 
location meeting the requirements of this section.

[65 FR 79526, Dec. 19, 2000. Redesignated at 88 FR 27639, May 2, 2023]



Sec.  40.43  What steps must operators of collection sites and collectors
take to protect the security and integrity of urine collections?

    (a) Collectors and operators of collection sites must take the steps 
listed in this section to prevent unauthorized access that could 
compromise the integrity of collections.
    (b) As a collector, you must do the following before each collection 
to deter tampering with specimens:
    (1) Secure any water sources or otherwise make them unavailable to 
employees (e.g., turn off water inlet, tape handles to prevent opening 
faucets);
    (2) Ensure that the water in the toilet is blue;
    (3) Ensure that no soap, disinfectants, cleaning agents, or other 
possible adulterants are present;
    (4) Inspect the site to ensure that no foreign or unauthorized 
substances are present;
    (5) Tape or otherwise secure shut any movable toilet tank top, or 
put bluing in the tank;
    (6) Ensure that undetected access (e.g., through a door not in your 
view) is not possible;
    (7) Secure areas and items (e.g., ledges, trash receptacles, paper 
towel holders, under-sink areas) that appear suitable for concealing 
contaminants; and
    (8) Recheck items in paragraphs (b)(1) through (7) of this section 
following each collection to ensure the site's continued integrity.
    (c) If the collection site uses a facility normally used for other 
purposes, like a public rest room or hospital examining room, you must, 
as a collector, also ensure before the collection that:
    (1) Access to collection materials and specimens is effectively 
restricted; and
    (2) The facility is secured against access during the procedure to 
ensure privacy to the employee and prevent distraction of the collector. 
Limited-access signs must be posted.
    (d) As a collector, you must take the following additional steps to 
ensure security during the collection process:
    (1) To avoid distraction that could compromise security, you are 
limited to conducting a collection for only one employee at a time. 
However, during the time one employee is in the period for drinking 
fluids in a ``shy bladder'' situation (see Sec.  40.193(b)), you may 
conduct a collection for another employee.
    (2) To the greatest extent you can, keep an employee's collection 
container within view of both you and the employee between the time the 
employee has urinated and the specimen is sealed.
    (3) Ensure you are the only person in addition to the employee who 
handles the specimen before it is poured into the bottles and sealed 
with tamper-evident seals.
    (4) In the time between when the employee gives you the specimen and 
when you seal the specimen, remain within the collection site.
    (5) Maintain personal control over each specimen and CCF throughout 
the collection process.
    (e) If you are operating a collection site, you must implement a 
policy and procedures to prevent unauthorized personnel from entering 
any part of the site in which urine specimens are collected or stored.
    (1) Only employees being tested, collectors and other collection 
site workers, DERs, employee and employer representatives authorized by 
the employer (e.g., employer policy, collective bargaining agreement), 
and DOT agency representatives are authorized persons for purposes of 
this paragraph (e).
    (2) Except for the observer in a directly observed collection or the 
monitor in the case of a monitored collection, you must not permit 
anyone to enter the urination facility in which employees provide 
specimens.
    (3) You must ensure that all authorized persons are under the 
supervision

[[Page 604]]

of a collector at all times when permitted into the site.
    (4) You or the collector may remove any person who obstructs, 
interferes with, or causes a delay in the collection process.
    (f) If you are operating a collection site, you must minimize the 
number of persons handling specimens.



Sec.  40.44  What materials are used to collect urine specimens?

    For each DOT drug test, you must use a collection kit meeting the 
requirements of Appendix A of this part.

[65 FR 79526, Dec. 19, 2000. Redesignated at 88 FR 27639, May 2, 2023]



Sec.  40.45  What materials are used to send urine specimens to the 
laboratory?

    (a) Except as provided in paragraph (b) of this section, you must 
use a shipping container that adequately protects the specimen bottles 
from shipment damage in the transport of specimens from the collection 
site to the laboratory.
    (b) You are not required to use a shipping container if a laboratory 
courier hand-delivers the specimens from the collection site to the 
laboratory.

[65 FR 79526, Dec. 19, 2000. Redesignated at 88 FR 27639, May 2, 2023]



Sec.  40.47  Where does an oral fluid collection for a DOT drug test
take place?

    (a) An oral fluid collection for a DOT drug test must take place in 
a collection site meeting the requirements of this section.
    (b) If you are operating an oral fluid collection site:
    (1) You must ensure that it meets the security requirements of Sec.  
40.48;
    (2) The site may be a permanent or temporary facility located either 
at the work site or at a remote site;
    (3) The site may be in a medical facility, a mobile facility (e.g., 
a van), a dedicated collection facility, or any other location meeting 
the requirements of this section; and
    (4) You must have all necessary personnel, materials, equipment, and 
facilities that include privacy and supervision to provide for the 
collection, temporary storage, and shipping of specimens to a 
laboratory, and a suitable clean surface for writing.
    (c) If a collection site is not accessible and there is an immediate 
requirement to collect an oral fluid specimen (e.g., an accident 
investigation), another site may be used for the collection, if the 
collection is performed by a collector who has been trained to collect 
oral fluid specimens in accordance with this part and the manufacturer's 
procedures for the collection device.

[88 FR 27640, May 2, 2023]



Sec.  40.48  What steps must operators of collection sites and collectors 
take to protect the security and integrity of oral fluid collections?

    (a) Collectors and operators of collection sites must take the steps 
listed in this section to prevent unauthorized access that could 
compromise the integrity of collections.
    (b) As a collector, you must do the following before each collection 
to deter tampering with specimens:
    (1) Ensure that access to collection materials and specimens is 
effectively restricted;
    (2) Ensure that undetected access (e.g., through a door not in your 
view) is not possible; and
    (3) Ensure the security of the facility during the collection 
process to maintain privacy to the employee and prevent distraction of 
the collector. Limited-access signs must be posted.
    (c) As a collector, you must take the following additional steps to 
ensure security during the collection process:
    (1) To avoid distraction that could compromise security, you are 
limited to conducting a collection for only one employee at a time. 
However, during the time one employee is in the period for drinking 
fluids in a ``dry mouth'' situation (see Sec.  40.72(b)(1)), you may 
conduct a collection for another employee as long as the employee with 
``dry mouth'' remains supervised.
    (2) To the greatest extent practicable, keep an employee's 
collection container within view of both you and the employee between 
the time the employee has provided the oral fluid specimen and the 
specimen is sealed.
    (3) Ensure you are the only person in addition to the employee who 
handles

[[Page 605]]

the specimen before it is sealed with tamper-evident seals.
    (4) In the time between when the employee gives you the specimen and 
when you seal the specimen, remain within the collection site.
    (5) Maintain personal control over each specimen and CCF throughout 
the collection process.
    (d) If you are operating a collection site, you must implement a 
policy and procedures to prevent unauthorized personnel from entering 
any part of the site in which oral fluid specimens are collected or 
stored.
    (1) Only employees being tested, collectors and other collection 
site workers, DERs, employee and employer representatives authorized by 
the employer (e.g., employer policy, collective bargaining agreement), 
and DOT agency representatives are authorized persons for purposes of 
this paragraph (d).
    (2) You must ensure that all authorized persons are under the 
supervision of a collector at all times when permitted into the site.
    (3) You or the collector may remove any person who obstructs, 
interferes with, or causes a delay in the collection process.
    (e) If you are operating a collection site, you must minimize the 
number of persons handling specimens.

[88 FR 27640, May 2, 2023]



Sec.  40.49  What materials are used to collect oral fluid specimens?

    For each DOT drug test, you must use a collection device meeting the 
requirements of appendix B of this part.

[88 FR 27640, May 2, 2023]



Sec.  40.51  What materials are used to send oral fluid specimens to 
the laboratory?

    (a) Except as provided in paragraph (b) of this section, you must 
use a shipping container that adequately protects the specimen bottles 
from damage in the transport of specimens from the collection site to 
the laboratory.
    (b) You are not required to use a shipping container if a laboratory 
courier hand-delivers the specimens from the collection site to the 
laboratory.

[88 FR 27640, May 2, 2023]



                     Subpart E_Specimen Collections



Sec.  40.61  What are the preliminary steps in the drug testing collection
process?

    As the collector, you must take the following steps before actually 
beginning a collection:
    (a) When a specific time for an employee's test has been scheduled, 
or the collection site is at the employee's work site, and the employee 
does not appear at the collection site at the scheduled time, contact 
the DER to determine the appropriate interval within which the DER has 
determined the employee is authorized to arrive. If the employee's 
arrival is delayed beyond that time, you must notify the DER that the 
employee has not reported for testing, the DER must determine whether 
the employee has refused to test (see Sec. Sec.  40.191(a)(1) and 
40.355(i)). In a situation where a C/TPA has notified an owner/operator 
or other individual employee to report for testing (other than for a 
pre-employment test) and the employee does not appear, the C/TPA must 
determine whether the employee has refused to test (see Sec. Sec.  
40.191(a)(1) and 40.355(j)).
    (b) Ensure that, when the employee enters the collection site, you 
begin the testing process without undue delay. For example, you must not 
wait because the employee says he or she is not ready or is unable to 
urinate or because an authorized employer or employee representative is 
delayed in arriving.
    (1) If the employee is also going to take a DOT alcohol test, you 
must ensure, to the greatest extent practicable, that the alcohol test 
is completed before the drug testing collection process begins.

    Example to paragraph (b)(1): An employee enters the test site for 
both a drug and an alcohol test. Normally, the collector would wait 
until the BAT had completed the alcohol test process before beginning 
the drug test process. However, there are some situations in which an 
exception to this normal practice would be reasonable. One such 
situation might be if several people were waiting for the BAT to conduct 
alcohol tests, but a drug testing collector in the same facility were 
free. Someone waiting might be able to complete a drug test without 
unduly delaying his or her alcohol test. Collectors and

[[Page 606]]

BATs should work together, however, to ensure that post-accident and 
reasonable suspicion alcohol tests happen as soon as possible (e.g., by 
moving the employee to the head of the line for alcohol tests).

    (2) If the employee needs medical attention (e.g., an injured 
employee in an emergency medical facility who is required to have a 
post-accident test), do not delay this treatment to collect a specimen.
    (3) You must not collect a specimen from an unconscious employee to 
conduct a drug test under this part.
    (4) You must not catheterize a conscious employee for purposes of a 
urine test. However, you must inform an employee who normally voids 
through self-catheterization that the employee is required to provide a 
specimen in that manner. If an employee normally voids through self-
catheterization, but declines to do so for the urine test, the collector 
should notify the DER of the circumstances, so that the actual employer 
can determine whether the situation constitutes a refusal to test by the 
employee.
    (c) Require the employee to provide positive identification. You 
must see a photo ID issued by the employer (other than in the case of an 
owner-operator or other self-employed individual) or a Federal, state, 
or local government (e.g., a driver's license). You may not accept faxes 
or photocopies of identification. Positive identification by an employer 
representative (not a co-worker or another employee being tested) is 
also acceptable. If the employee cannot produce positive identification, 
you must contact a DER to verify the identity of the employee.
    (d) If the employee asks, provide your identification to the 
employee. Your identification must include your name and your employer's 
name, but does not have to include your picture, address, or telephone 
number.
    (e) Explain the basic collection procedure to the employee, and 
notify the employee that instructions for completing the CCF can be 
found at the HHS (https://www.samhsa.gov/workplace) and DOT (https://
www.transportation.gov/odapc) websites.
    (f) Direct the employee to remove outer clothing (e.g., coveralls, 
jacket, coat, hat) that could be used to conceal items or substances 
that could be used to tamper with a specimen. You must also direct the 
employee to leave these garments and any briefcase, purse, or other 
personal belongings with you or in a mutually agreeable location. You 
must advise the employee that failure to comply with your directions 
constitutes a refusal to test.
    (1) If the employee asks for a receipt for any belongings left with 
you, you must provide one.
    (2) You must allow the employee to keep his or her wallet.
    (3) You must not ask the employee to remove other clothing (e.g., 
shirts, pants, dresses, underwear), to remove all clothing, or to change 
into a hospital or examination gown (unless the urine collection is 
being accomplished simultaneously with a DOT agency-authorized medical 
examination).
    (4) You must direct the employee to empty his or her pockets and 
display the items in them to ensure that no items are present which 
could be used to adulterate the specimen. If nothing is there that can 
be used to adulterate a specimen, the employee can place the items back 
into his or her pockets. As the employee, you must allow the collector 
to make this observation.
    (5) If, in your duties under paragraph (f)(4) of this section, you 
find any material that could be used to tamper with a specimen, you 
must:
    (i) Determine if the material appears to be brought to the 
collection site with the intent to alter the specimen, and, if it is, 
either conduct a directly observed urine collection using direct 
observation procedures (see Sec.  40.67) or an oral fluid specimen 
collection, make a note on the CCF and continue with collection process; 
or
    (ii) Determine if the material appears to be inadvertently brought 
to the collection site (e.g., eye drops), secure and maintain it until 
the collection process is completed and conduct a normal (i.e., 
unobserved) collection.
    (g) You must instruct the employee not to list medications that he 
or she is currently taking on the CCF. (The employee may make notes of 
medications on the back of the employee copy

[[Page 607]]

of the form for his or her own convenience, but these notes must not be 
transmitted to anyone else.)

[65 FR 79526, Dec. 19, 2000, as amended at 88 FR 27640, May 2, 2023]



Sec.  40.63  What steps does the collector take in the collection
process before the employee provides a urine specimen?

    As the collector, you must take the following steps before the 
employee provides the urine specimen:
    (a) Ensure all items under Step 1 of the CCF are complete and 
accurate (e.g., if Step 1.D is not checked, put a check mark for the 
``Specify DOT Agency'' under the authority of which the test will take 
place; if the address where the collection is actually taking place is 
not in Step 1.G, update that.)
    (b) Instruct the employee to wash and dry his or her hands at this 
time. You must tell the employee not to wash his or her hands again 
until after delivering the specimen to you. You must not give the 
employee any further access to water or other materials that could be 
used to adulterate or dilute a specimen.
    (c) Select, or allow the employee to select, an individually wrapped 
or sealed collection container from collection kit materials. Either you 
or the employee, with both of you present, must unwrap or break the seal 
of the collection container. You must not unwrap or break the seal on 
any specimen bottle at this time. You must not allow the employee to 
take anything from the collection kit into the room used for urination 
except the collection container.
    (d) Direct the employee to go into the room used for urination, 
provide a specimen of at least 45 mL, not flush the toilet, and return 
to you with the specimen as soon as the employee has completed the void.
    (1) Except in the case of an observed or a monitored collection (see 
Sec. Sec.  40.67 and 40.69), neither you nor anyone else may go into the 
room with the employee.
    (2) As the collector, you may set a reasonable time limit for 
voiding.
    (e) You must pay careful attention to the employee during the entire 
collection process to note any conduct that clearly indicates an attempt 
to tamper with a specimen (e.g., substitute urine in plain view or an 
attempt to bring into the collection site an adulterant or urine 
substitute). If you detect such conduct, you must require that a 
collection take place immediately under direct observation (see Sec.  
40.67) and complete Step 2 by noting the conduct in the ``Remarks'' line 
of the CCF and the fact that the collection was observed by checking the 
``Observed'' box. You must also, as soon as possible, inform the DER and 
collection site supervisor that a collection took place under direct 
observation and the reason for doing so.

[65 FR 79526, Dec. 19, 2000, as amended at 75 FR 59107, Sept. 27, 2010; 
88 FR 27641, May 2, 2023]



Sec.  40.65  What does the collector check for when the employee 
presents a urine specimen?

    As a collector, you must check the following when the employee gives 
the collection container to you:
    (a) Sufficiency of specimen. You must check to ensure that the 
specimen contains at least 45 mL of urine.
    (1) If it does not, you must follow ``shy bladder'' procedures (see 
Sec.  40.193(b)).
    (2) When you follow ``shy bladder'' procedures, you must discard the 
original specimen, unless another problem (i.e., temperature out of 
range, signs of tampering) also exists.
    (3) You are never permitted to combine urine collected from separate 
voids to create a specimen.
    (4) You must discard any excess urine.
    (b) Temperature. You must check the temperature of the specimen no 
later than four minutes after the employee has given you the specimen.
    (1) The acceptable temperature range is 32-38 [deg]C/90-100 [deg]F.
    (2) You must determine the temperature of the specimen by reading 
the temperature strip attached to the collection container.
    (3) If the specimen temperature is within the acceptable range, you 
must mark the ``Yes'' box on the CCF (Step 2).
    (4) If the specimen temperature is outside the acceptable range, you 
must

[[Page 608]]

mark the ``No'' box and enter in the ``Remarks'' line (Step 2) your 
findings about the temperature.
    (5) If the specimen temperature is outside the acceptable range, you 
must immediately conduct a new urine collection using direct observation 
procedures (see Sec.  40.67) or an oral fluid collection.
    (6) In a case where a specimen is collected under direct observation 
because of the temperature being out of range, you must process both the 
original specimen and the specimen collected using direct observation 
(including oral fluid) and send the two sets of specimens to their 
respective laboratories. This is true even in a case in which the 
original specimen has insufficient volume and the temperature is out of 
range. You must also, as soon as possible, inform the DER and collection 
site supervisor that a collection took place under direct observation 
and the reason for doing so.
    (7) In a case where the employee refuses to provide another specimen 
(see Sec.  40.191(a)(3)) or refuses to provide another specimen under 
direct observation (see Sec.  40.191(a)(4)), you must notify the DER. As 
soon as you have notified the DER, you must discard any specimen the 
employee has provided previously during the collection procedure.
    (c) Signs of tampering. You must inspect the specimen for unusual 
color, presence of foreign objects or material, or other signs of 
tampering (e.g., if you notice any unusual odor).
    (1) If it is apparent from this inspection that the employee has 
tampered with the specimen (e.g., blue dye in the specimen, excessive 
foaming when shaken, or smell of bleach), you must immediately conduct a 
new urine collection using direct observation procedures (see Sec.  
40.67) or an oral fluid collection.
    (2) In a case where a specimen is collected under direct observation 
because of showing signs of tampering, you must process both the 
original specimen and the specimen collected using direct observation 
and send the two sets of specimens to the laboratory. This is true even 
in a case in which the original specimen has insufficient volume but it 
shows signs of tampering. You must also, as soon as possible, inform the 
DER and collection site supervisor that a collection took place under 
direct observation and the reason for doing so.
    (3) In a case where the employee refuses to provide a specimen under 
direct observation (see Sec.  40.191(a)(4)), you must discard any 
specimen the employee provided previously during the collection 
procedure. Then you must notify the DER as soon as practicable.

[65 FR 79526, Dec. 19, 2000, as amended at 66 FR 41950, Aug. 9, 2001; 88 
FR 27641, May 2, 2023]



Sec.  40.67  When and how is a directly observed urine collection conducted?

    (a) As an employer, you must direct an immediate collection under 
direct observation with no advance notice to the employee, if:
    (1) The laboratory reported to the MRO that a specimen is invalid, 
and the MRO reported to you that there was not an adequate medical 
explanation for the result;
    (2) The MRO reported to you that the original positive, adulterated, 
or substituted result had to be cancelled because the test of the split 
specimen could not be performed; or
    (3) The laboratory reported to the MRO that the specimen was 
negative-dilute with a creatinine concentration greater than or equal to 
2 mg/dL but less than or equal to 5 mg/dL, and the MRO reported the 
specimen to you as negative-dilute and that a second collection must 
take place under direct observation (see Sec.  40.197(b)(1)).
    (4) You realize a collection under direct observation was required 
but was not conducted or the service agent informs you that a direct 
observation should have been collected but was not (see paragraph (n) of 
this section).
    (b) As an employer, you must direct a collection under direct 
observation of an employee if the drug test is a return-to-duty test or 
a follow-up test.
    (c) As a collector, you must immediately conduct a collection under 
direct observation if:
    (1) You are directed by the DER to do so (see paragraph (a) of this 
section); or
    (2) You observed materials brought to the collection site or the 
employee's conduct clearly indicates an attempt

[[Page 609]]

to tamper with a specimen (see Sec. Sec.  40.61(f)(5)(i) and 40.63(e)); 
or
    (3) The temperature on the original specimen was out of range (see 
Sec.  40.65(b)(5));
    (4) The original specimen appeared to have been tampered with (see 
Sec.  40.65(c)(1)); or
    (5) The test reason is return-to-duty or follow-up.
    (d)(1) As the employer, you must explain to the employee the reason 
for a directly observed collection under paragraph (a) or (b) of this 
section.
    (2) As the collector, you must explain to the employee the reason, 
if known, under this part for a directly observed collection.
    (e) As the collector, you must complete a new CCF for the directly 
observed collection.
    (1) You must mark the ``reason for test'' block (Step 1) the same as 
for the first collection.
    (2) You must check the ``Observed, (Enter Remark)'' box and enter 
the reason (see paragraphs (c)(2) through (4) of this section) in the 
``Remarks'' line (Step 2).
    (f) In a case where two sets of specimens are being sent to the 
laboratory because of suspected tampering with the specimen at the 
collection site, enter on the ``Remarks'' line of the CCF (Step 2) for 
each specimen a notation to this effect (e.g., collection 1 of 2, or 2 
of 2) and the specimen ID number of the other specimen.
    (g) As the collector, you must ensure that the observer is the same 
gender as the employee.
    (1) You must never permit an opposite gender person to act as the 
observer.
    (2) The observer can be a different person from the collector and 
need not be a qualified collector.
    (3) If a same gender collector cannot be found or in circumstances 
of nonbinary or transgender employees:
    (i) If the employer has a standing order to allow oral fluid testing 
in such situations, the collector will follow that order;
    (ii) If there is no standing order from the employer, the collector 
must contact the DER and either conduct an oral fluid test if the 
collection site is able to do so, or send the employee to a collection 
site acceptable to the employer for the oral fluid test.
    (h) As the collector, if someone else is to observe the collection 
(e.g., in order to ensure a same gender observer), you must verbally 
instruct that person to follow procedures at paragraphs (i) and (j) of 
this section. If you, the collector, are the observer, you too must 
follow these procedures.
    (i) As the observer, you must request the employee to raise his or 
her shirt, blouse, or dress/skirt, as appropriate, above the waist; and 
lower clothing and underpants to show you, by turning around, that they 
do not have a prosthetic device. After you have determined that the 
employee does not have such a device, you may permit the employee to 
return clothing to its proper position for observed urination.
    (j) As the observer, you must watch the employee urinate into the 
collection container. Specifically, you are to watch the urine go from 
the employee's body into the collection container.
    (k) As the observer but not the collector, you must not take the 
collection container from the employee, but you must observe the 
specimen as the employee takes it to the collector.
    (l) As the collector, when someone else has acted as the observer, 
you must include the observer's name in the ``Remarks'' line of the CCF 
(Step 2).
    (m) As the employee, if you decline to allow a directly observed 
collection required or permitted under this section to occur, this is a 
refusal to test.
    (n) As a service agent, when you learn that a directly observed 
collection should have been collected but was not, you must inform the 
employer that it must direct the employee to have an immediate 
recollection under direct observation.

[65 FR 79526, Dec. 19, 2000, as amended at 66 FR 41950, Aug. 9, 2001; 68 
FR 31626, May 28, 2003; 69 FR 64867, Nov. 9, 2004; 73 FR 35970, June 25, 
2008; 73 FR 50223, Aug. 26, 2008; 73 FR 62910, Oct. 22, 2008; 73 FR 
70284, Nov. 20, 2008; 74 FR 37952, July 30, 2009; 82 FR 52244, Nov. 13, 
2017; 88 FR 27641, May 2, 2023]



Sec.  40.69  How is a monitored urine collection conducted?

    (a) As stated in Sec.  40.42(f)(2), if you are conducting a urine 
collection in a

[[Page 610]]

multi-stall restroom and you cannot secure all sources of water and 
other substances that could be used for adulteration and substitution, 
you must conduct a monitored collection. This is the only circumstance 
in which you must conduct a monitored collection.
    (b) As the collector, you must secure the room being used for the 
monitored collection so that no one except the employee and the monitor 
can enter it until after the collection has been completed.
    (c) As the collector, you must ensure that the monitor is the same 
gender as the employee, unless the monitor is a medical professional 
(e.g., nurse, doctor, physician's assistant, technologist, or technician 
licensed or certified to practice in the jurisdiction in which the 
collection takes place). The monitor can be a different person from the 
collector and need not be a qualified collector.
    (d) As the collector, if someone else is to monitor the collection 
(e.g., in order to ensure a same-gender monitor), you must verbally 
instruct that person to follow the procedures of paragraphs (d) and (e) 
of this section. If you, the collector, are the monitor, you must follow 
these procedures.
    (e) As the monitor, you must not watch the employee urinate into the 
collection container. If you hear sounds or make other observations 
indicating an attempt to tamper with a specimen, there must be an 
additional collection under direct observation. See Sec. Sec.  40.63(e), 
40.65(c), and 40.67(c)(2)(3)).
    (f) As the monitor, you must ensure that the employee takes the 
collection container directly to the collector as soon as the employee 
has exited the enclosure.
    (g) As the collector, when someone else has acted as the monitor, 
you must note that person's name in the ``Remarks'' line of the CCF 
(Step 2).
    (h) As the employee being tested, if you decline to permit a 
collection authorized under this section to be monitored, it is a 
refusal to test.

[65 FR 79526, Dec. 19, 2000, as amended at 66 FR 41951, Aug. 9, 2001; 88 
FR 27641, May 2, 2023]



Sec.  40.71  How does the collector prepare the urine specimen?

    (a) All collections under DOT agency drug testing regulations must 
be split specimen collections.
    (b) As the collector, you must take the following steps, in order, 
after the employee brings the urine specimen to you. You must take these 
steps in the presence of the employee.
    (1) After the collection, check the box on the CCF (Step 2) 
indicating that this was a ``Urine'' and ``Split'' specimen collection.
    (2) You, not the employee, must first pour at least 30 mL of urine 
from the collection container into one specimen bottle, to be used for 
the primary specimen.
    (3) You, not the employee, must then pour at least 15 mL of urine 
from the collection container into the second specimen bottle to be used 
for the split specimen.
    (4) You, not the employee, must place and secure (i.e., tighten or 
snap) the lids/caps on the bottles.
    (5) You, not the employee, must seal the bottles by placing the 
tamper-evident bottle seals over the bottle caps/lids and down the sides 
of the bottles.
    (6) You, not the employee, must then write the date on the tamper-
evident bottle seals.
    (7) You must then ensure that the employee initials the tamper-
evident bottle seals for the purpose of certifying that the bottles 
contain the specimens he or she provided. If the employee fails or 
refuses to do so, you must note this in the ``Remarks'' line of the CCF 
(Step 2) and complete the collection process.
    (8) You must discard any urine left over in the collection container 
after both specimen bottles have been appropriately filled and sealed. 
There is one exception to this requirement: you may use excess urine to 
conduct clinical tests (e.g., protein, glucose) if the collection was 
conducted in conjunction with a physical examination required by a DOT 
agency regulation. Neither you nor anyone else may conduct further 
testing (such as adulteration testing) on this excess urine and

[[Page 611]]

the employee has no legal right to demand that the excess urine be 
turned over to the employee.

[65 FR 79526, Dec. 19, 2000, as amended at 66 FR 41951, Aug. 9, 2001; 88 
FR 27641, May 2, 2023]



Sec.  40.72  What steps does the collector take in the collection 
process before the employee provides an oral fluid specimen?

    (a) The collector requests that the employee open the employee's 
mouth, and the collector inspects the oral cavity to ensure that it is 
free of any items that could impede or interfere with the collection of 
an oral fluid specimen (e.g., candy, gum, food, or tobacco) or could be 
used to adulterate, substitute, or alter the specimen.
    (1) If the collector finds indication(s) of anything identified 
above, the collector will ask the employee to lift their tongue and/or 
separate their cheek from their gum to permit full inspection. If this 
occurs, the employee may cleanse his or her hands, but must not decline 
the collector's request for further inspection.
    (2) If the employee claims that he or she has a medical condition 
that prevents opening his or her mouth for inspection, the collector 
follows the procedure described in Sec.  40.193(a).
    (3) If the collector observes materials brought to the collection 
site or the employee's conduct clearly indicates an attempt to 
adulterate, substitute, or alter the specimen, the collector must 
terminate the collection, note the circumstances in the Remarks section 
of the CCF, and report the circumstances to the DER, so that the 
employer can decide whether to deem the situation a refusal in 
accordance with Sec.  40.191(a).
    (b) If an item is present that might impede or interfere with the 
collection of an oral fluid specimen, the collector must request the 
employee remove the item.
    (1) If the employee removes any item that could impede or interfere 
with the collection of an oral fluid specimen, the employee has 
abnormally colored saliva, or the employee claims to have ``dry mouth,'' 
then the collector must give the employee water, up to 8 ounces, to 
rinse their mouth. The employee may drink the water. The collector must 
then wait 10 minutes before beginning the specimen collection.
    (2) If the employee refuses to remove the item or rinse, the 
collector must terminate the collection, note the circumstances in the 
Remarks section of the CCF, and report the information to the DER to 
test as described in Sec.  40.191(a)(8) (failure to cooperate), so that 
the employer can decide whether to deem the situation a refusal.
    (c) If there is nothing of concern in the oral cavity and no ``dry 
mouth'' condition, the collector starts a 10-minute wait period and 
proceeds with the steps below before beginning the specimen collection 
as described in Sec.  40.73.
    (d) During the 10-minute wait period:
    (1) Review with the employee the procedures required for a 
successful oral fluid specimen collection as stated in the 
manufacturer's instructions for the specimen collection device.
    (2) Complete all items under Step 1 of the CCF, and for 
clarification:
    (i) In Step 1.D of the CCF, the collector must put a check mark for 
the ``Specify DOT Agency'' under whose authority the test will take 
place.
    (ii) In Step 1.G of the CCF for the ``Collection Site Address'', the 
collector must provide the address where the collection took place.
    (3) The collector will provide, or the employee may select, a 
specimen collection device that is clean, unused, and wrapped/sealed in 
original packaging.
    (i) The collector will check the expiration date on the device or 
the package containing the device and show it to the employee.
    (ii) The collector must not use the device after its expiration 
date.
    (iii) The collector must open the specimen collection device in view 
of the employee.
    (4) The collector will complete Step 2 of the CCF.
    (i) Check ``Oral Fluid'',
    (ii) For ``Oral Fluid: Split Type'' check ``Subdivided'', and
    (iii) Check ``Each Device Within Expiration Date?'' after ensuring 
the device is within its expiration date.
    (5) The collector will enter the Split Specimen Device Expiration 
Date in

[[Page 612]]

Step 4 of the CCF. Since the collector will use one oral fluid device 
that will collect a single specimen, which is then subdivided in the 
presence of the donor, only one entry in Step 4 is to be made for the 
device expiration date.
    (6) The collector must instruct the employee to use hand sanitizer 
or wash and dry his or her hands.
    (e) To the greatest extent practicable, the collector must keep the 
employee's unwrapped collection device within view of both the collector 
and the employee, between the time the employee has provided a specimen 
and the specimen is sealed.

[88 FR 27642, May 2, 2023]



Sec.  40.73  How is an oral fluid specimen collected?

    (a) The collector must be present and maintain visual contact with 
the employee during the procedures outlined in this section.
    (b) The collector must note any unusual behavior or appearance of 
the employee on the CCF. If the collector detects any conduct that 
clearly indicates an attempt to tamper with a specimen (e.g., an attempt 
to bring into the collection site an adulterant or oral fluid 
substitute), the collector must terminate the collection and report the 
information to the DER so that the employer can decide whether to deem 
the situation a refusal.
    (c) The employee and collector must complete the specimen collection 
in accordance with the manufacturer's instructions for the collection 
device.
    (1) Under the observation of the collector, the employee is 
responsible for positioning the specimen collection device for 
collection.
    (2) The collector must ensure the collection is performed correctly 
(i.e., using the oral fluid device in the manner described by its 
manufacturer), that the collection device is working properly, and that 
a sufficient specimen volume is collected.
    (3) If the employee states that he or she is unable to provide an 
oral fluid specimen or provides an insufficient specimen during the 
collection process, the collector must continue to make one attempt to 
collect, after an insufficient specimen, the collector follows the 
procedure in Sec.  40.193.
    (4) The collector must inspect the specimen for unusual color, 
presence of foreign objects or material, or other signs of tampering. If 
it is apparent from this inspection that the employee has tampered with 
the specimen, the collector must conduct a new collection.
    (i) Document any unusual characteristics referenced above in the 
Remarks section of the CCF.
    (ii) Proceed with obtaining the new oral fluid specimen from the 
donor. Note on the new CCF that this is another collection for the same 
testing event (i.e., Document in the remarks section that this is 
Specimen 2 of 2 and include the Specimen ID number of the other 
specimen). Make the same notation on the CCF of the suspect specimen.

[88 FR 27642, May 2, 2023]



Sec.  40.74  How does the collector prepare the oral fluid specimens?

    (a) The collector follows the manufacturer's instructions to package 
the split specimen collections.
    (b) A volume of at least 1 mL of undiluted (neat) oral fluid is 
collected for the specimen designated as ``Bottle A'', and a volume of 
at least 1 mL of undiluted (neat) oral fluid is collected for the 
specimen designated as ``Bottle B'', or an otherwise sufficient amount 
of oral fluid is collected to permit an HHS-certified laboratory to 
analyze the specimen(s).
    (c) In the presence of the employee, the collector places a tamper-
evident seal from the CCF over the cap of each specimen container, 
taking care not to obstruct the expiration date on the collection 
containers. The collector must record the date of the collection on the 
tamper-evident seals, after they are affixed to the specimen containers.
    (d) The collector instructs the employee to initial the tamper-
evident seals on each specimen container. If the employee declines to do 
so, the collector must note this in the ``Remarks'' line of the CCF 
(Step 2) and complete the collection process.

[88 FR 27642, May 2, 2023]

[[Page 613]]



Sec. Sec.  40.75-40.78  [Reserved]



Sec.  40.79  How is the collection process completed?

    (a) As the collector, when using the paper CCF, you must do the 
following things to complete the collection process. You must complete 
the steps called for in paragraphs (a)(1) through (7) of this section in 
the employee's presence.
    (1) Direct the employee to read and sign the certification statement 
on Copy 2 of the CCF and provide all information required in Step 5. If 
the employee declines to sign the CCF or to provide any of the required 
information, you must note this in the ``Remarks'' line (Step 2) of the 
CCF and complete the collection. If the employee declines to fill out 
any information, you must, as a minimum, print the employee's name in 
the appropriate place.
    (2) Complete the chain of custody on the CCF (Step 4) by printing 
your name (note: you may pre-print your name), recording the time and 
date of the collection, signing the statement, and entering the name of 
the delivery service transferring the specimen to the laboratory,
    (3) Ensure that all copies of the CCF are legible and complete.
    (4) Remove Copy 5 of the CCF and give it to the employee.
    (5) Place the specimen bottles and Copy 1 of the CCF in the 
appropriate pouches of the plastic bag.
    (6) Secure both pouches of the plastic bag.
    (7) Advise the employee that he or she may leave the collection 
site.
    (8) To prepare the sealed plastic bag containing the specimens and 
CCF for shipment you must:
    (i) Place the sealed plastic bag in a shipping container (e.g., 
standard courier box) designed to minimize the possibility of damage 
during shipment. (More than one sealed plastic bag can be placed into a 
single shipping container if you are doing multiple collections.)
    (ii) Seal the container as appropriate.
    (iii) If a laboratory courier hand-delivers the specimens from the 
collection site to the laboratory, prepare the sealed plastic bag for 
shipment as directed by the courier service.
    (9) Send Copy 2 of the CCF to the MRO and Copy 4 to the DER. You 
must fax or otherwise transmit these copies to the MRO and DER within 24 
hours or during the next business day. Keep Copy 3 for at least 30 days, 
unless otherwise specified by applicable DOT agency regulations.
    (b) As a collector, when using other forms of the CCF as approved by 
the Office of Management and Budget, you must follow the procedures 
approved for that form.
    (c) As a collector or collection site, you must ensure that each 
specimen you collect is shipped to a laboratory as quickly as possible, 
but in any case, within 24 hours or during the next business day.

[65 FR 79526, Dec. 19, 2000, as amended at 71 FR 49384, Aug. 23, 2006; 
80 FR 19553, Apr. 13, 2015. Redesignated and amended at 88 FR 27641, 
27643, May 2, 2023]



                   Subpart F_Drug Testing Laboratories



Sec.  40.81  What laboratories may be used for DOT drug testing?

    (a) As a drug testing laboratory located in the U.S., you are 
permitted to participate in DOT drug testing only if you are certified 
by HHS under the National Laboratory Certification Program (NLCP) for 
each specimen testing methodology performed required under this part.
    (b) As a drug testing laboratory located in Canada or Mexico which 
is not certified by HHS under the NLCP, you are permitted to participate 
in DOT drug testing only if:
    (1) The DOT, based on a written recommendation from HHS, has 
approved your laboratory as meeting HHS laboratory certification 
standards or deemed your laboratory fully equivalent to a laboratory 
meeting HHS laboratory certification standards for all testing required 
under this part; or
    (2) The DOT, based on a written recommendation from HHS, has 
recognized a Canadian or Mexican certifying organization as having 
equivalent laboratory certification standards and procedures to those of 
HHS, and the

[[Page 614]]

Canadian or Mexican certifying organization has certified your 
laboratory under those equivalent standards and procedures.
    (c) As a laboratory participating in the DOT drug testing program, 
you must comply with the requirements of this part. You must also comply 
with all applicable requirements of HHS in testing DOT specimens, 
whether or not the HHS requirements are explicitly stated in this part.
    (d) If DOT determines that you are in noncompliance with this part, 
you could be subject to PIE proceedings under Subpart R of this part. If 
the Department issues a PIE with respect to you, you are ineligible to 
participate in the DOT drug testing program even if you continue to meet 
the requirements of paragraph (a) or (b) of this section.

[65 FR 79526, Dec. 19, 2000, as amended at 88 FR 27643, May 2, 2023]



Sec.  40.82  What drugs do laboratories test for?

    As a laboratory, you must test for the following five drugs or 
classes of drugs in a DOT drug test. You must not test ``DOT specimens'' 
for any other drugs.
    (a) Marijuana metabolites.
    (b) Cocaine metabolites.
    (c) Amphetamines.
    (d) Opioids.
    (e) Phencyclidine (PCP).

[82 FR 52244, Nov. 13, 2017. Redesignated at 88 FR 27643, May 2, 2023]



Sec.  40.83  How do laboratories process incoming specimens?

    As the laboratory, you must do the following when you receive a DOT 
specimen:
    (a) You are authorized to receive only Copy 1 of the CCF. You are 
not authorized to receive other copies of the CCF or any copies of the 
alcohol testing form.
    (b) You must comply with applicable provisions of the HHS Guidelines 
concerning accessioning and processing drug specimens.
    (c) You must inspect each specimen and CCF for the following ``fatal 
flaws'':
    (1) There is no CCF;
    (2) In cases where a specimen has been collected, there is no 
specimen submitted with the CCF;
    (3) There is no printed collector's name and no collector's 
signature;
    (4) Two separate collections are performed using one CCF;
    (5) The specimen ID numbers on the specimen bottle and the CCF do 
not match;
    (6) The specimen bottle seal is broken or shows evidence of 
tampering, unless a split specimen can be redesignated (see paragraph 
(h) of this section);
    (7) There is an insufficient amount of specimen in the primary 
bottle for analysis, unless the specimens can be redesignated (see 
paragraph (h) of this section).
    (8) For an oral fluid collection, the collector used an expired 
device at the time of collection.
    (9) For an oral fluid collection, if the collector failed to enter 
the expiration date in Step 4 of the CCF and the laboratory is unable to 
determine the expiration date by inspecting Bottles A and B.
    (d) When you find a specimen meeting the criteria of paragraph (c) 
of this section, you must document your findings and stop the testing 
process. Report the result in accordance with Sec.  40.97(a)(3) .
    (e) You must inspect each CCF for the presence of the collector's 
signature on the certification statement in Step 4 of the CCF. Upon 
finding that the signature is omitted, document the flaw and continue 
the testing process.
    (1) In such a case, you must retain the specimen for a minimum of 5 
business days from the date on which you initiated action to correct the 
flaw.
    (2) You must then attempt to correct the flaw by following the 
procedures of Sec.  40.205(b)(1).
    (3) If the flaw is not corrected, report the result as rejected for 
testing in accordance with Sec.  40.97(a)(3).
    (f) If you determine that the urine specimen temperature was not 
checked and the ``Remarks'' line did not contain an entry regarding the 
temperature being outside of range, you must then attempt to correct the 
problem by following the procedures of Sec.  40.208.
    (1) In such a case, you must continue your efforts to correct the 
problem for

[[Page 615]]

five business days, before you report the result.
    (2) When you have obtained the correction, or five business days 
have elapsed, report the result in accordance with Sec.  40.97(a).
    (g) If you determine that a CCF that fails to meet the requirements 
of Sec.  40.40(a) (e.g., a non-Federal form or an expired Federal form 
was used for the collection), you must attempt to correct the use of the 
improper form by following the procedures of Sec.  40.205(b)(2).
    (1) In such a case, you must retain the specimen for a minimum of 5 
business days from the date on which you initiated action to correct the 
problem.
    (2) If the problem(s) is not corrected, you must reject the test and 
report the result in accordance with Sec.  40.97(a)(3).
    (h) If the CCF is marked indicating that a split specimen collection 
was collected and if the split specimen does not accompany the primary, 
has leaked, or is otherwise unavailable for testing, you must still test 
the primary specimen and follow appropriate procedures outlined in Sec.  
40.175(b) regarding the unavailability of the split specimen for 
testing.
    (1) The primary specimen and the split specimen can be redesignated 
(i.e., Bottle B is redesignated as Bottle A, and vice-versa) if:
    (i) The primary specimen appears to have leaked out of its sealed 
bottle and the laboratory believes a sufficient amount of specimen 
exists in the split specimen to conduct all appropriate primary 
laboratory testing; or
    (ii) The primary specimen is labeled as Bottle B, and the split 
specimen as Bottle A; or
    (iii) The laboratory opens the split specimen instead of the primary 
specimen, the primary specimen remains sealed, and the laboratory 
believes a sufficient amount of specimen exists in the split specimen to 
conduct all appropriate primary laboratory testing; or
    (iv) The primary specimen seal is broken but the split specimen 
remains sealed and the laboratory believes a sufficient amount of 
specimen exists in the split specimen to conduct all appropriate primary 
laboratory testing.
    (2) In situations outlined in paragraph (h)(1) of this section, the 
laboratory shall mark through the ``A'' and write ``B,'' then initial 
and date the change. A corresponding change shall be made to the other 
bottle by marking through the ``B'' and writing ``A,'' and initialing 
and dating the change.
    (i) A notation shall be made on Copy 1 of the CCF (Step 5a) and on 
any laboratory internal chain of custody documents, as appropriate, for 
any fatal or correctable flaw.

[65 FR 79526, Dec. 19, 2000, as amended at 66 FR 41951, Aug. 9, 2001; 71 
FR 49384, Aug. 23, 2006; 73 FR 35970, June 25, 2008; 75 FR 59107, Sept. 
27, 2010; 82 FR 52244, Nov 13, 2017; 88 FR 27643, May 2, 2023]



Sec.  40.84  How long does the laboratory retain specimens after testing?

    (a) As a laboratory testing the primary specimen, you must retain a 
specimen that was reported with positive, adulterated, substituted, or 
invalid results for a minimum of one year.
    (b) You must keep such a specimen in secure, long-term, frozen 
storage in accordance with HHS requirements.
    (c) Within the one-year period, the MRO, the employee, the employer, 
or a DOT agency may request in writing that you retain a specimen for an 
additional period of time (e.g., for the purpose of preserving evidence 
for litigation or a safety investigation). If you receive such a 
request, you must comply with it. If you do not receive such a request, 
you may discard the specimen at the end of the year.
    (d) If you have not sent the split specimen to another laboratory 
for testing, you must retain the split specimen for an employee's test 
for the same period of time that you retain the primary specimen and 
under the same storage conditions.
    (e) As the laboratory testing the split specimen, you must meet the 
requirements of paragraphs (a) through (d) of this section with respect 
to the split specimen.

[65 FR 79526, Dec. 19, 2000. Redesignated at 88 FR 27643, May 2, 2023]

[[Page 616]]



Sec.  40.85  What are the cutoff concentrations for urine drug tests?

    (a) As a laboratory, you must use the cutoff concentrations 
displayed in the following table for initial and confirmatory drug 
tests. All cutoff concentrations are expressed in nanograms per 
milliliter (ng/mL). The table follows:

----------------------------------------------------------------------------------------------------------------
                                       Initial test cutoff      Confirmatory test      Confirmatory test cutoff
        Initial test analyte                   \1\                   analyte                concentration
----------------------------------------------------------------------------------------------------------------
Marijuana metabolites (THCA) \2\...  50 ng/mL\3\...........  THCA..................  15 ng/mL.
Cocaine metabolite                   150 ng/mL \3\.........  Benzoylecgonine.......  100 ng/mL.
 (Benzoylecgonine).
Codeine/...........................  2000 ng/mL............  Codeine...............  2000 ng/mL.
Morphine...........................                          Morphine..............  2000 ng/mL.
Hydrocodone/.......................  300 ng/mL.............  Hydrocodone...........  100 ng/mL.
Hydromorphone......................                          Hydromorphone.........  100 ng/mL.
Oxycodone/.........................  100 ng/mL.............  Oxycodone.............  100 ng/mL.
Oxymorphone........................                          Oxymorphone...........  100 ng/mL.
6-Acetylmorphine...................  10 ng/mL..............  6-Acetylmorphine......  10 ng/mL.
Phencyclidine......................  25 ng/mL..............  Phencyclidine.........  25 ng/mL.
Amphetamine/.......................  500 ng/mL.............  Amphetamine...........  250 ng/mL.
Methamphetamine....................                          Methamphetamine.......  250 ng/mL.
MDMA \4\/MDA \5\...................  500 ng/mL.............  MDMA..................  250 ng/mL.
                                                             MDA...................  250 ng/mL.
----------------------------------------------------------------------------------------------------------------
\1\ For grouped analytes (i.e., two or more analytes that are in the same drug class and have the same initial
  test cutoff):
Immunoassay: The test must be calibrated with one analyte from the group identified as the target analyte. The
  cross-reactivity of the immunoassay to the other analyte(s) within the group must be 80 percent or greater; if
  not, separate immunoassays must be used for the analytes within the group.
Alternate technology: Either one analyte or all analytes from the group must be used for calibration, depending
  on the technology. At least one analyte within the group must have a concentration equal to or greater than
  the initial test cutoff or, alternatively, the sum of the analytes present (i.e., equal to or greater than the
  laboratory's validated limit of quantification) must be equal to or greater than the initial test cutoff.
\2\ An immunoassay must be calibrated with a target analyte.
\3\ Alternate technology (THCA and Benzoylecgonine): When using an alternate technology initial test for the
  specific target analytes of THCA and Benzoylecgonine, the laboratory must use the same cutoff for the initial
  and confirmatory tests (i.e., 15 ng/mL for THCA and 100ng/mL for Benzoylecgonine).
\4\ Methylenedioxymethamphetamine (MDMA).
\5\ Methylenedioxyamphetamine (MDA).

    (b) On an initial drug test, you must report a result below the 
cutoff concentration as negative. If the result is at or above the 
cutoff concentration, you must conduct a confirmation test.
    (c) On a confirmation drug test, you must report a result below the 
cutoff concentration as negative and a result at or above the cutoff 
concentration as confirmed positive.
    (d) You must report quantitative values for morphine or codeine at 
15,000 ng/mL or above.

[65 FR 79526, Dec. 19, 2000, as amended at 75 FR 49862, Aug. 16, 2010; 
77 FR 26473, May 4, 2012; 82 FR 52244, Nov. 13, 2017. Redesignated and 
amended at 88 FR 27643, May 2, 2023]



Sec.  40.86  What is urine validity testing, and are laboratories
required to conduct it?

    (a) Specimen validity testing is the evaluation of the specimen to 
determine if it is consistent with normal human urine. The purpose of 
validity testing is to determine whether certain adulterants or foreign 
substances were added to the urine, if the urine was diluted, or if the 
specimen was substituted.
    (b) As a laboratory, you must conduct validity testing.

[65 FR 79526, Dec. 19, 2000, as amended at 66 FR 41951, Aug. 9, 2001; 73 
FR 35970, June 25, 2008. Redesignated at 88 FR 27643, May 2, 2023]



Sec.  40.87  What validity tests must laboratories conduct on primary 
urine specimens?

    As a laboratory, when you conduct validity testing under Sec.  
40.86, you must conduct it in accordance with the requirements of this 
section.
    (a) You must determine the creatinine concentration on each primary 
specimen. You must also determine its specific gravity if you find the 
creatinine concentration to be less than 20 mg/dL.
    (b) You must determine the pH of each primary specimen.
    (c) You must perform one or more validity tests for oxidizing 
adulterants on each primary specimen.

[[Page 617]]

    (d) You must perform additional validity tests on the primary 
specimen when the following conditions are observed:
    (1) Abnormal physical characteristics;
    (2) Reactions or responses characteristic of an adulterant obtained 
during initial or confirmatory drug tests (e.g., non-recovery of 
internal standards, unusual response); or
    (3) Possible unidentified interfering substance or adulterant.
    (e) If you determine that the specimen is invalid and HHS guidelines 
direct you to contact the MRO, you must contact the MRO and together 
decide if testing the primary specimen by another HHS certified 
laboratory would be useful in being able to report a positive or 
adulterated test result.

[65 FR 79526, Dec. 19, 2000, as amended at 69 FR 64867, Nov. 9, 2004. 
Redesignated and amended at 88 FR 27643, May 2, 2023]



Sec.  40.88  What criteria do laboratories use to establish that a 
urine specimen is dilute or substituted?

    (a) As a laboratory, you must consider the primary specimen to be 
dilute when:
    (1) The creatinine concentration is greater than or equal to 2 mg/dL 
but less than 20 mg/dL, and
    (2) The specific gravity is greater than 1.0010 but less than 1.0030 
on a single aliquot.
    (b) As a laboratory, you must consider the primary specimen to be 
substituted when the creatinine concentration is less than 2 mg/dL and 
the specific gravity is less than or equal to 1.0010 or greater than or 
equal to 1.0200 on both the initial and confirmatory creatinine tests 
and on both the initial and confirmatory specific gravity tests on two 
separate aliquots.

[69 FR 64867, Nov. 9, 2004. Redesignated at 88 FR 27643, May 2, 2023]



Sec.  40.89  What are the adulterant cutoff concentrations for initial
and confirmation urine tests?

    (a) As a laboratory, you must use the cutoff concentrations for the 
initial and confirmation adulterant testing as required by the HHS 
Mandatory Guidelines and you must use two separate aliquots--one for the 
initial test and another for the confirmation test.
    (b) As a laboratory, you must report results at or above the cutoffs 
(or for pH, at or above or below the values, as appropriate) as 
adulterated and provide the numerical value that supports the 
adulterated result.

[73 FR 35970, June 25, 2008. Redesignated at 88 FR 27643, May 2, 2023]



Sec.  40.90  What criteria do laboratories use to establish that a urine
specimen is invalid?

    (a) As a laboratory, you must use the invalid test result criteria 
for the initial and confirmation testing as required by the HHS 
Mandatory Guidelines, and you must use two separate aliquots--one for 
the initial test and another for the confirmation test.
    (b) As a laboratory, for a specimen having an invalid result for one 
of the reasons outlined in the HHS Mandatory Guidelines, you must 
contact the MRO to discuss whether sending the specimen to another HHS 
certified laboratory for testing would be useful in being able to report 
a positive or adulterated result.
    (c) As a laboratory, you must report invalid results in accordance 
with the invalid test result criteria as required by the HHS Guidelines 
and provide the numerical value that supports the invalid result, where 
appropriate, such as pH.
    (d) As a laboratory, you must report the reason a test result is 
invalid.

[73 FR 35970, June 25, 2008. Redesignated at 88 FR 27643, May 2, 2023]



Sec.  40.91  What are the cutoff concentrations for oral fluid drug tests?

    As a laboratory, you must use the cutoff concentrations displayed in 
the following table for initial and confirmatory drug tests for oral 
fluid specimens. All cutoff concentrations are expressed in nanograms 
per milliliter (ng/mL). The table follows:

[[Page 618]]



                        Table 1 to Sec.   40.91--Oral Fluid Testing Cutoff Concentrations
----------------------------------------------------------------------------------------------------------------
                                                                  Confirmatory test     Confirmatory test cutoff
       Initial test analyte           Initial test cutoff \1\          analyte               concentration
----------------------------------------------------------------------------------------------------------------
Marijuana (THC) \2\...............  4 ng/mL \3\...............  THC..................  2 ng/mL.
Cocaine/Benzoylecgonine...........  15 ng/mL..................  Cocaine..............  8 ng/mL.
                                    ..........................  Benzoylecgonine......  8 ng/mL.
Codeine/Morphine..................  30 ng/mL..................  Codeine..............  15 ng/mL.
                                    ..........................  Morphine.............  15 ng/mL.
Hydrocodone/Hydromorphone.........  30 ng/mL..................  Hydrocodone..........  15 ng/mL.
                                    ..........................  Hydromorphone........  15 ng/mL.
Oxycodone/Oxymorphone.............  30 ng/mL..................  Oxycodone............  15 ng/mL.
                                    ..........................  Oxymorphone..........  15 ng/mL.
6-Acetylmorphine..................  4 ng/mL \3\...............  6-Acetylmorphine.....  2 ng/mL.
Phencyclidine.....................  10 ng/mL..................  Phencyclidine........  10 ng/mL.
Amphetamine/Methamphetamine.......  50 ng/mL..................  Amphetamine..........  25 ng/mL.
                                    ..........................  Methamphetamine......  25 ng/mL.
MDMA \4\/MDA \5\..................  50 ng/mL..................  MDMA.................  25 ng/mL.
                                    ..........................  MDA..................  25 ng/mL.
----------------------------------------------------------------------------------------------------------------
\1\ For grouped analytes (i.e., two or more analytes that are in the same drug class and have the same initial
  test cutoff):
Immunoassay: The test must be calibrated with one analyte from the group identified as the target analyte. The
  cross reactivity of the immunoassay to the other analyte(s) within the group must be 80 percent or greater; if
  not, separate immunoassays must be used for the analytes within the group.
Alternate technology: Either one analyte or all analytes from the group must be used for calibration, depending
  on the technology. At least one analyte within the group must have a concentration equal to or greater than
  the initial test cutoff or, alternatively, the sum of the analytes present (i.e., with concentrations equal to
  or greater than the laboratory's validated limit of quantification) must be equal to or greater than the
  initial test cutoff.
\2\ An immunoassay must be calibrated with the target analyte.
\3\ Alternate technology (THC and 6-AM): The confirmatory test cutoff must be used for an alternate technology
  initial test that is specific for the target analyte (i.e., 2 ng/mL for THC, 2 ng/mL for 6-AM).
\4\ Methylenedioxymethamphetamine (MDMA).
\5\ Methylenedioxyamphetamine (MDA).


[88 FR 27643, May 2, 2023]



Sec.  40.92  What is oral fluid validity testing, and are laboratories
required to conduct it?

    (a) Specimen validity testing is the evaluation of the specimen to 
determine if it is consistent with normal human oral fluid. The purpose 
of validity testing is to determine whether certain adulterants or 
foreign substances were added to the oral fluid, if the oral fluid was 
altered.
    (b) If a specimen exhibits abnormal characteristics (e.g., unusual 
odor or color), causes reactions or responses characteristic of an 
adulterant during initial or confirmatory drug tests (e.g., non-recovery 
of internal standard, unusual response), or contains an unidentified 
substance that interferes with the confirmatory analysis, then you may 
conduct validity testing.
    (c) If you determine that the specimen is invalid and HHS guidelines 
direct you to contact the MRO, you must contact the MRO and together 
decide if testing the primary specimen by another HHS-certified 
laboratory would be useful in being able to report a positive or 
adulterated test result.

[88 FR 27643, May 2, 2023]



Sec.  40.93  What validity tests must laboratories conduct on primary 
oral fluid specimens?

    As a laboratory, if you conduct validity testing under Sec.  40.92, 
you must conduct it in accordance with the requirements of this section.
    (a) You may test for a biomarker such as albumin or immunoglobulin G 
(IgG) or a test for a specific adulterant.
    (b) You must follow the applicable HHS requirements for any 
additional validity testing.

[88 FR 27643, May 2, 2023]



Sec.  40.97  What do laboratories report and how do they report it?

    (a) As a laboratory, when reporting a result of any kind, you must 
report the specimen type.
    (b) You must also report the results for each primary specimen, 
which will fall into one of the following three categories. As a 
laboratory, you must report the actual results (and not the categories):
    (1) Category 1: Negative results. As a laboratory, when you find a 
specimen to be negative, you must report the test result as being one of 
the following, as applicable:
    (i) Negative, or

[[Page 619]]

    (ii) For urine only, negative-dilute, with numerical values for 
creatinine and specific gravity.
    (2) Category 2: Non-negative results. As a laboratory, when you find 
a specimen to be non-negative, you must report the test result as being 
one or more of the following, as applicable:
    (i) Positive, with drug(s)/metabolite(s) noted, with numerical 
values for the drug(s) or drug metabolite(s).
    (ii) Adulterated, with adulterant(s) noted, with confirmatory test 
values (when applicable), and with remarks(s);
    (iii) For urine only, positive-dilute, with drug(s)/metabolite(s) 
noted, with numerical values for the drug(s) or drug metabolite(s) and 
with numerical values for creatinine and specific gravity;
    (iv) For urine only, substituted, with confirmatory test values for 
creatinine and specific gravity; or
    (v) For urine only, invalid result, with remark(s). Laboratories 
will report actual values for pH results.
    (vi) For oral fluid only, invalid result, with remark(s). 
Laboratories must report numerical values of the specimen validity test 
results that support a specimen reported as invalid.
    (3) Category 3: Rejected for testing. As a laboratory, when you 
reject a specimen for testing, you must report the result as being 
Rejected for Testing, with remark(s).
    (c) As a laboratory, you must report laboratory results directly, 
and only, to the MRO at his or her place of business. You must not 
report results to or through the DER or a service agent (e.g., a C/TPA).
    (1) Negative results: You must fax, courier, mail, or electronically 
transmit a legible image or copy of the fully completed Copy 1 of the 
CCF which has been signed by the certifying scientist, or you may 
provide the laboratory results report electronically (i.e., computer 
data file).
    (i) If you elect to provide the laboratory results report, you must 
include the following elements, as a minimum, in the report format:
    (A) Laboratory name and address;
    (B) Employer's name (you may include I.D. or account number);
    (C) Medical review officer's name;
    (D) Specimen I.D. number;
    (E) SSN or Employee ID from Step 1C of the CCF, if provided;
    (F) Reason for test, if provided;
    (G) Collector's name and telephone number;
    (H) Date of the collection;
    (I) For oral fluid only, collection device expiration date;
    (J) Date received at the laboratory;
    (K) Date certifying scientist released the results;
    (L) Certifying scientist's name;
    (M) Results (e.g., positive, adulterated) as listed in paragraph (a) 
of this section; and
    (N) Remarks section, with an explanation of any situation in which a 
correctable flaw has been corrected.
    (ii) You may release the laboratory results report only after review 
and approval by the certifying scientist. It must reflect the same test 
result information as contained on the CCF signed by the certifying 
scientist. The information contained in the laboratory results report 
must not contain information that does not appear on the CCF.
    (iii) The results report may be transmitted through any means that 
ensures accuracy and confidentiality. You, as the laboratory, together 
with the MRO, must ensure that the information is adequately protected 
from unauthorized access or release, both during transmission and in 
storage (e.g., see Sec.  40.351).
    (2) Non-negative and Rejected for Testing results: You must fax, 
courier, mail, or electronically transmit a legible image or copy of the 
fully completed Copy 1 of the CCF that has been signed by the certifying 
scientist. In addition, you may provide the electronic laboratory 
results report following the format and procedures set forth in 
paragraphs (b)(1)(i) and (ii) of this section.
    (d) In transmitting laboratory results to the MRO, you, as the 
laboratory, together with the MRO, must ensure that the information is 
adequately protected from unauthorized access or release, both during 
transmission and in storage. If the results are provided by fax or other 
electronic means, the electronic communication must be accessible only 
to authorized individuals.

[[Page 620]]

    (e) You must transmit test results to the MRO in a timely manner, 
preferably the same day that review by the certifying scientist is 
completed.
    (f)(1) You must provide quantitative values for confirmed positive 
drug test results to the MRO.
    (2) You must provide numerical values that support the adulterated 
(when applicable) or substituted result, without a request from the MRO.
    (3) You must also provide the MRO numerical values for creatinine 
and specific gravity for the negative-dilute urine test result, without 
a request from the MRO.
    (g) You must provide quantitative values for confirmed positive 
morphine and/or codeine urine results at or below 15,000 ng/mL, and for 
confirmed positive morphine or codeine oral fluid results at or below 
150 ng/mL.

[88 FR 27644, May 2, 2023]



Sec.  40.101  What relationship may a laboratory have with an MRO?

    (a) As a laboratory, you may not enter into any relationship with an 
MRO that creates a conflict of interest or the appearance of a conflict 
of interest with the MRO's responsibilities for the employer. You may 
not derive any financial benefit by having an employer use a specific 
MRO.
    (b) The following are examples of relationships between laboratories 
and MROs that the Department regards as creating conflicts of interest, 
or the appearance of such conflicts. This following list of examples is 
not intended to be exclusive or exhaustive:
    (1) The laboratory employs an MRO who reviews test results produced 
by the laboratory;
    (2) The laboratory has a contract or retainer with the MRO for the 
review of test results produced by the laboratory;
    (3) The laboratory designates which MRO the employer is to use, 
gives the employer a slate of MROs from which to choose, or recommends 
certain MROs;
    (4) The laboratory gives the employer a discount or other incentive 
to use a particular MRO;
    (5) The laboratory has its place of business co-located with that of 
an MRO or MRO staff who review test results produced by the laboratory; 
or
    (6) The laboratory permits an MRO, or an MRO's organization, to have 
a financial interest in the laboratory.



Sec.  40.107  Who may inspect laboratories?

    As a laboratory, you must permit an inspection, with or without 
prior notice, by ODAPC, a DOT agency, or a DOT-regulated employer that 
contracts with the laboratory for drug testing under the DOT drug 
testing program, or the designee of such an employer.



Sec.  40.109  What documentation must the laboratory keep, and for how long?

    (a) As a laboratory, you must retain all records pertaining to each 
employee urine specimen for a minimum of two years.
    (b) As a laboratory, you must also keep for two years employer-
specific data required in Sec.  40.111.
    (c) Within the two-year period, the MRO, the employee, the employer, 
or a DOT agency may request in writing that you retain the records for 
an additional period of time (e.g., for the purpose of preserving 
evidence for litigation or a safety investigation). If you receive such 
a request, you must comply with it. If you do not receive such a 
request, you may discard the records at the end of the two-year period.



Sec.  40.111  When and how must a laboratory disclose statistical
summaries and other information it maintains?

    (a) As a laboratory, you must transmit an aggregate statistical 
summary, by employer, of the data listed in appendix D of this part with 
respect to each specimen type for which you conduct tests to the 
employer on a semi-annual basis.
    (1) The summary must not reveal the identity of any employee.
    (2) In order to avoid sending data from which it is likely that 
information about an employee's test result can be readily inferred, you 
must not send a summary if the employer has fewer than five aggregate 
tests results.
    (3) The summary must be sent by January 20 of each year for July 1 
through December 31 of the prior year.

[[Page 621]]

    (4) The summary must also be sent by July 20 of each year for 
January 1 through June 30 of the current year.
    (b) When the employer requests a summary in response to an 
inspection, audit, or review by a DOT agency, you must provide it unless 
the employer had fewer than five aggregate test results. In that case, 
you must send the employer a report indicating that not enough testing 
was conducted to warrant a summary. You may transmit the summary or 
report by hard copy, fax, or other electronic means.
    (c) You must also release information to appropriate parties as 
provided in Sec. Sec.  40.329 and 40.331.
    (d) As a laboratory, you must transmit an aggregate statistical 
summary listed in appendix E of this part for each specimen type for 
which you conduct testing to DOT on a semi-annual basis. The summary 
must be sent by January 31 of each year for July 1 through December 31 
of the prior year. It must be sent by July 31 of each year for January 1 
through June 30 of the current year. If you withdraw or are removed from 
NLCP's laboratory certification during a reporting period, you must 
provide the aggregate statistical summary to the DOT-regulated employers 
and to ODAPC for the last reporting period in which you conducted DOT-
regulated testing.

[65 FR 79526, Dec. 19, 2000, as amended at 73 FR 35971, June 25, 2008; 
88 FR 27645, May 2, 2023]



Sec.  40.113  Where is other information concerning laboratories found 
in this regulation?

    You can find more information concerning laboratories in several 
sections of this part:

Sec.  40.3--Definition.
Sec.  40.13--Prohibition on making specimens available for other 
          purposes.
Sec.  40.31--Conflicts of interest concerning collectors.
Sec.  40.47--Laboratory rejections of test for improper form.
Sec.  40.125--Conflicts of interest concerning MROs.
Sec.  40.175--Role of first laboratory in split specimen tests.
Sec.  40.177--Role of second laboratory in split specimen tests (drugs).
Sec.  40.179--Role of second laboratory in split specimen tests 
          (adulterants).
Sec.  40.181--Role of second laboratory in split specimen tests 
          (substitution).
Sec. Sec.  40.183-40.185--Transmission of split specimen test results to 
          MRO.
Sec. Sec.  40.201-40.205--Role in correcting errors.
Sec.  40.329--Release of information to employees.
Sec.  40.331--Limits on release of information.
Sec.  40.355--Role with respect to other service agents.



     Subpart G_Medical Review Officers and the Verification Process



Sec.  40.121  Who is qualified to act as an MRO?

    To be qualified to act as an MRO in the DOT drug testing program, 
you must meet each of the requirements of this section:
    (a) Credentials. You must be a licensed physician (Doctor of 
Medicine or Osteopathy). If you are a licensed physician in any U.S., 
Canadian, or Mexican jurisdiction and meet the other requirements of 
this section, you are authorized to perform MRO services with respect to 
all covered employees, wherever they are located. For example, if you 
are licensed as an M.D. in one state or province in the U.S., Canada, or 
Mexico, you are not limited to performing MRO functions in that state or 
province, and you may perform MRO functions for employees in other 
states or provinces without becoming licensed to practice medicine in 
the other jurisdictions.
    (b) Basic knowledge. You must be knowledgeable in the following 
areas:
    (1) You must be knowledgeable about and have clinical experience in 
controlled substances abuse disorders, including detailed knowledge of 
alternative medical explanations for laboratory confirmed drug test 
results.
    (2) You must be knowledgeable about issues relating to adulterated 
and substituted specimens as well as the possible medical causes of 
specimens having an invalid result.
    (3) You must be knowledgeable about this part, the DOT MRO 
Guidelines, and the DOT agency regulations applicable to the employers 
for whom you evaluate drug test results, and you must keep current on 
any changes to these materials. You must subscribe to the ODAPC list-
serve at https://

[[Page 622]]

www.transportation.gov/odapc/get-odapc-email-updates. DOT agency 
regulations, DOT MRO Guidelines, and other materials are available from 
ODAPC (Department of Transportation, 1200 New Jersey Avenue SE, 
Washington, DC 20590, 202-366-3784), or on the ODAPC Web site (http://
www.transportation.gov/odapc).
    (c) Qualification training. You must receive qualification training 
meeting the requirements of this paragraph (c).
    (1) Qualification training must provide instruction on the following 
subjects:
    (i) Collection procedures for specimens;
    (ii) Chain of custody, reporting, and recordkeeping;
    (iii) Interpretation of drug and validity tests results;
    (iv) The role and responsibilities of the MRO in the DOT drug 
testing program;
    (v) The interaction with other participants in the program (e.g., 
DERs, SAPs); and
    (vi) Provisions of this part and DOT agency rules applying to 
employers for whom you review test results, including changes and 
updates to this part and DOT agency rules, guidance, interpretations, 
and policies affecting the performance of MRO functions, as well as 
issues that MROs confront in carrying out their duties under this part 
and DOT agency rules.
    (2) Following your completion of qualification training under 
paragraph (c)(1) of this section, you must satisfactorily complete an 
examination administered by a nationally-recognized MRO certification 
board or subspecialty board for medical practitioners in the field of 
medical review of DOT-mandated drug tests. The examination must 
comprehensively cover all the elements of qualification training listed 
in paragraph (c)(1) of this section.
    (3) You must meet the requirements of paragraphs (a), (b), and (c) 
of this section before you begin to perform MRO functions.
    (d) Requalification training. During each five-year period from the 
date on which you satisfactorily completed the examination under 
paragraph (c)(2) of this section, you must complete requalification 
training.
    (1) This requalification training must meet the requirements of the 
qualification training under paragraph (c)(1) of this section.
    (2) Following your completion of requalification training, you must 
satisfactorily complete an examination administered by a nationally-
recognized MRO certification board or subspecialty board for medical 
practitioners in the field of medical review of DOT-mandated drug tests. 
The examination must comprehensively cover all the elements of 
qualification training listed in paragraph (c)(1) of this section.
    (e) Documentation. You must maintain documentation showing that you 
currently meet all requirements of this section. You must provide this 
documentation on request to DOT agency representatives and to employers 
and C/TPAs who are using or negotiating to use your services.

[65 FR 79526, Dec. 19, 2000, as amended at 66 FR 41951, Aug. 9, 2001; 75 
FR 49862, Aug. 16, 2010; 82 FR 52245, Nov. 13, 2017; 88 FR 27645, May 2, 
2023]



Sec.  40.123  What are the MRO's responsibilities in the DOT drug 
testing program?

    As an MRO, you have the following basic responsibilities:
    (a) Acting as an independent and impartial ``gatekeeper'' and 
advocate for the accuracy and integrity of the drug testing process.
    (b) Providing a quality assurance review of the drug testing process 
for the specimens under your purview. This includes, but is not limited 
to:
    (1) Ensuring the review of the CCF on all specimen collections for 
the purposes of determining whether there is a problem that may cause a 
test to be cancelled (see Sec. Sec.  40.199-40.203). As an MRO, you are 
not required to review laboratory internal chain of custody 
documentation. No one is permitted to cancel a test because you have not 
reviewed this documentation;
    (2) Providing feedback to employers, collection sites and 
laboratories regarding performance issues where necessary; and
    (3) Reporting to and consulting with the ODAPC or a relevant DOT 
agency

[[Page 623]]

when you wish DOT assistance in resolving any program issue. As an 
employer or service agent, you are prohibited from limiting or 
attempting to limit the MRO's access to DOT for this purpose and from 
retaliating in any way against an MRO for discussing drug testing issues 
with DOT.
    (c) You must determine whether there is a legitimate medical 
explanation for confirmed positive, adulterated, substituted, and 
invalid results from the laboratory.
    (d) While you provide medical review of employees' test results, 
this part does not deem that you have established a doctor-patient 
relationship with the employees whose tests you review.
    (e) You must act to investigate and correct problems where possible 
and notify appropriate parties (e.g., HHS, DOT, employers, service 
agents) where assistance is needed, (e.g., cancelled or problematic 
tests, incorrect results).
    (f) You must ensure the timely flow of test results and other 
information to employers.
    (g) You must protect the confidentiality of the drug testing 
information.
    (h) You must perform all your functions in compliance with this part 
and other DOT agency regulations.

[65 FR 79526, Dec. 19, 2000, as amended at 82 FR 52245, Nov. 13, 2017; 
88 FR 27645, May 2, 2023]



Sec.  40.125  What relationship may an MRO have with a laboratory?

    As an MRO, you may not enter into any relationship with an 
employer's laboratory that creates a conflict of interest or the 
appearance of a conflict of interest with your responsibilities to that 
employer. You may not derive any financial benefit by having an employer 
use a specific laboratory. For examples of relationships between 
laboratories and MROs that the Department views as creating a conflict 
of interest or the appearance of such a conflict, see Sec.  40.101(b).



Sec.  40.127  What are the MRO's functions in reviewing negative test
results?

    As the MRO, you must do the following with respect to negative drug 
test results you receive from a laboratory, prior to verifying the 
result and releasing it to the DER:
    (a) Review Copy 2 of the CCF to determine if there are any fatal or 
correctable errors that may require you to initiate corrective action or 
to cancel the test (see Sec. Sec.  40.199 and 40.203).
    (b) Review the negative laboratory test result and ensure that it is 
consistent with the information contained on the CCF.
    (c) Before you report a negative test result, you must have in your 
possession the following documents:
    (1) Copy 2 of the CCF, a legible copy of it, or any other CCF copy 
containing the employee's signature; and
    (2) A legible copy (fax, photocopy, image) of Copy 1 of the CCF or 
the electronic laboratory results report that conveys the negative 
laboratory test result.
    (d) If the copy of the documentation provided to you by the 
collector or laboratory appears unclear, you must request that the 
collector or laboratory send you a legible copy.
    (e) On Copy 2 of the CCF, place a check mark in the ``Negative'' box 
(Step 6), provide your name, and sign, initial, or stamp and date the 
verification statement.
    (f) Report the result in a confidential manner (see Sec. Sec.  
40.163-40.167).
    (g) Staff under your direct, personal supervision may perform the 
administrative functions of this section for you, but only you can 
cancel a test. If you cancel a laboratory-confirmed negative result, 
check the ``Test Cancelled'' box (Step 6) on Copy 2 of the CCF, make 
appropriate annotation in the ``Remarks'' line, provide your name, and 
sign, initial or stamp and date the verification statement.
    (1) On specimen results that are reviewed by your staff, you are 
responsible for assuring the quality of their work.
    (2) You are required to personally review at least 5 percent of all 
CCFs reviewed by your staff on a quarterly basis, including all results 
that required a corrective action. However, you need not review more 
than 500 negative results of all specimen types combined in any quarter.
    (3) Your review must, as a minimum, include the CCF, negative 
laboratory

[[Page 624]]

test result, any accompanying corrective documents, and the report sent 
to the employer. You must correct any errors that you discover. You must 
take action as necessary to ensure compliance by your staff with this 
part and document your corrective action. You must attest to the quality 
assurance review by initialing the CCFs that you review.
    (4) You must make these CCFs easily identifiable and retrievable by 
you for review by DOT agencies.

[65 FR 79526, Dec. 19, 2000, as amended at 66 FR 41951, Aug. 9, 2001; 88 
FR 27645, May 2, 2023]



Sec.  40.129  What are the MRO's functions in reviewing laboratory
confirmed non-negative drug test results?

    (a) As the MRO, you must do the following with respect to confirmed 
positive, adulterated, substituted, or invalid results you receive from 
a laboratory, before you verify the result and release it to the DER:
    (1) Review Copy 2 of the CCF to determine if there are any fatal or 
correctable errors that may require you to cancel the test (see 
Sec. Sec.  40.199 and 40.203). Staff under your direct, personal 
supervision may conduct this administrative review for you, but only you 
may verify or cancel a test.
    (2) Review Copy 1 of the CCF and ensure that it is consistent with 
the information contained on Copy 2, that the test result is legible, 
and that the certifying scientist signed the form. You are not required 
to review any other documentation generated by the laboratory during 
their analysis or handling of the specimen (e.g., the laboratory 
internal chain of custody).
    (3) If the copy of the documentation provided to you by the 
collector or laboratory appears unclear, you must request that the 
collector or laboratory send you a legible copy.
    (4) Except in the circumstances spelled out in Sec.  40.133 , 
conduct a verification interview. This interview must include direct 
contact in person or by telephone between you and the employee. You may 
initiate the verification process based on the laboratory results 
report.
    (5) Verify the test result, consistent with the requirements of 
Sec. Sec.  40.135 through 40.145, 40.159, and 40.160, as:
    (i) Negative; or
    (ii) Cancelled; or
    (iii) Positive, and/or refusal to test because of adulteration or 
substitution.
    (b) Before you report a verified negative, positive, refusal to test 
because of adulteration or substitution, you must have in your 
possession the following documents:
    (1) Copy 2 of the CCF, a legible copy of it, or any other CCF copy 
containing the employee's signature; and
    (2) A legible copy (fax, photocopy, image) of Copy 1 of the CCF, 
containing the certifying scientist's signature.
    (c) With respect to verified positive test results, place a 
checkmark in the ``Positive'' box in Step 6 on Copy 2 of the CCF, 
indicate the drug(s)/metabolite(s) verified positive, and sign and date 
the verification statement.
    (d) If you cancel a laboratory confirmed positive, adulterated, 
substituted, or invalid result, check the ``test cancelled'' box (Step 
6) on Copy 2 of the CCF, make appropriate annotation in the ``Remarks'' 
line, sign, provide your name, and date the verification statement.
    (e) Report the result in a confidential manner (see Sec. Sec.  
40.163-40.167).
    (f) With respect to adulteration or substitution test results, check 
the ``refusal to test because:'' box (Step 6) on Copy 2 of the CCF, 
check the ``Adulterated'' or ``Substituted'' box, as appropriate, make 
appropriate annotation in the ``Remarks'' line, sign and date the 
verification statement.
    (g) As the MRO, your actions concerning reporting confirmed 
positive, adulterated, or substituted results to the employer before you 
have completed the verification process are also governed by the stand-
down provisions of Sec.  40.21 .
    (1) If an employer has a stand-down policy that meets the 
requirements of Sec.  40.21 , you may report to the DER that you have 
received an employee's laboratory confirmed positive, adulterated, or 
substituted test result, consistent with the terms of the waiver the 
employer received. You must not

[[Page 625]]

provide any further details about the test result (e.g., the name of the 
drug involved).
    (2) If the employer does not have a stand-down policy that meets the 
requirements of Sec.  40.21, you must not inform the employer that you 
have received an employee's laboratory confirmed positive, adulterated, 
or substituted test result until you verify the test result. For 
example, as an MRO employed directly by a company, you must not tell 
anyone on the company's staff or management that you have received an 
employee's laboratory confirmed test result.

[65 FR 79526, Dec. 19, 2000, as amended at 66 FR 41952, Aug. 9, 2001; 73 
FR 35971, June 25, 2008; 75 FR 59107, Sept. 27, 2010; 88 FR 27645, May 
2, 2023]



Sec.  40.131  How does the MRO or DER notify an employee of the
verification process after receiving laboratory confirmed non-negative
drug test results?

    (a) When, as the MRO, you receive a confirmed positive, adulterated, 
substituted, or invalid test result from the laboratory, you must 
contact the employee directly (i.e., actually talk to the employee), on 
a confidential basis, to determine whether the employee wants to discuss 
the test result. In making this contact, you must explain to the 
employee that, if he or she declines to discuss the result, you will 
verify the test as positive or as a refusal to test because of 
adulteration or substitution, as applicable.
    (b) As the MRO, staff under your personal supervision may conduct 
this initial contact for you.
    (1) This staff contact must be limited to scheduling the discussion 
between you and the employee and explaining the consequences of the 
employee's declining to speak with you (i.e., that the MRO will verify 
the test without input from the employee). If the employee declines to 
speak with you, the staff person must document the employee's decision, 
including the date and time.
    (2) A staff person must not gather any medical information or 
information concerning possible explanations for the test result.
    (3) A staff person may advise an employee to have medical 
information (e.g., prescriptions, information forming the basis of a 
legitimate medical explanation for a confirmed positive test result) 
ready to present at the interview with the MRO.
    (4) Since you are required to speak personally with the employee, 
face-to-face or on the phone, your staff must not inquire if the 
employee wishes to speak with you.
    (c) As the MRO, you or your staff must make reasonable efforts to 
reach the employee at the day and evening telephone numbers listed on 
the CCF. Reasonable efforts include, as a minimum, three attempts, 
spaced reasonably over a 24-hour period, to reach the employee at the 
day and evening telephone numbers listed on the CCF. If you or your 
staff cannot reach the employee directly after making these efforts, you 
or your staff must take the following steps:
    (1) Document the efforts you made to contact the employee, including 
dates and times. If both phone numbers are incorrect (e.g., 
disconnected, wrong number), you may take the actions listed in 
paragraph (c)(2) of this section without waiting the full 24-hour 
period.
    (2) Contact the DER, instructing the DER to contact the employee.
    (i) You must simply direct the DER to inform the employee to contact 
you.
    (ii) You must not inform the DER that the employee has a confirmed 
positive, adulterated, substituted, or invalid test result.
    (iii) You must document the dates and times of your attempts to 
contact the DER, and you must document the name of the DER you contacted 
and the date and time of the contact.
    (d) As the DER, you must attempt to contact the employee 
immediately, using procedures that protect, as much as possible, the 
confidentiality of the MRO's request that the employee contact the MRO. 
If you successfully contact the employee (i.e., actually talk to the 
employee), you must document the date and time of the contact, and 
inform the MRO. You must inform the employee that he or she should 
contact the MRO immediately. You must also inform the employee of the 
consequences of failing to contact the MRO within the next 72 hours (see 
Sec.  40.133(a)(2)).

[[Page 626]]

    (1) As the DER, you must not inform anyone else working for the 
employer that you are seeking to contact the employee on behalf of the 
MRO.
    (2) If, as the DER, you have made all reasonable efforts to contact 
the employee but failed to do so, you may place the employee on 
temporary medically unqualified status or medical leave. Reasonable 
efforts include, as a minimum, three attempts, spaced reasonably over a 
24-hour period, to reach the employee at the day and evening telephone 
numbers listed on the CCF.
    (i) As the DER, you must document the dates and times of these 
efforts.
    (ii) If, as the DER, you are unable to contact the employee within 
this 24-hour period, you must leave a message for the employee by any 
practicable means (e.g., voice mail, e-mail, letter) to contact the MRO 
and inform the MRO of the date and time of this attempted contact.

[65 FR 79526, Dec. 19, 2000, as amended at 66 FR 41952, Aug. 9, 2001; 68 
FR 31626, May 28, 2003; 69 FR 64867, Nov. 9, 2004]



Sec.  40.133  Without interviewing the employee, under what circumstances
may the MRO verify a test result as positive, or as a refusal to test
because of adulteration or substitution, or as cancelled because the 
test was invalid?

    (a) As the MRO, you normally may verify a confirmed positive test 
(for any drug or drug metabolite, including opiates), or as a refusal to 
test because of adulteration or substitution, only after interviewing 
the employee as provided in Sec. Sec.  40.135-40.145 . However, there 
are three circumstances in which you may verify such a result without an 
interview:
    (1) You may verify a test result as a positive or refusal to test, 
as applicable, if the employee expressly declines the opportunity to 
discuss the test with you. You must maintain complete documentation of 
this occurrence, including notation of informing, or attempting to 
inform, the employee of the consequences of not exercising the option to 
speak with the you.
    (2) You may verify a test result as a positive or refusal to test, 
as applicable, if the DER has successfully made and documented a contact 
with the employee and instructed the employee to contact you and more 
than 72 hours have passed since the time the DER contacted the employee.
    (3) You may verify a test result as a positive or refusal to test, 
as applicable, if neither you nor the DER, after making and documenting 
all reasonable efforts, has been able to contact the employee within ten 
days of the date on which the MRO receives the confirmed test result 
from the laboratory.
    (b) As the MRO, you may verify an invalid test result as cancelled 
(with instructions to recollect immediately under direct observation) 
without interviewing the employee, as provided at Sec.  40.159:
    (1) If the employee expressly declines the opportunity to discuss 
the test with you;
    (2) If the DER has successfully made and documented a contact with 
the employee and instructed the employee to contact you and more than 72 
hours have passed since the time the DER contacted the employee; or
    (3) If neither you nor the DER, after making and documenting all 
reasonable efforts, has been able to contact the employee within ten 
days of the date on which you received the confirmed invalid test result 
from the laboratory.
    (c) As the MRO, after you verify a test result as a positive or as a 
refusal to test under this section, you must document the date and time 
and reason, following the instructions in Sec.  40.163. For a cancelled 
test due to an invalid result under this section, you must follow the 
instructions in Sec.  40.159(a)(5).
    (d) As the MRO, after you have verified a test result under this 
section and reported the result to the DER, you must allow the employee 
to present information to you within 60 days of the verification to 
document that serious illness, injury, or other circumstances 
unavoidably precluded contact with the MRO and/or DER in the times 
provided. On the basis of such information, you may reopen the 
verification, allowing the employee to

[[Page 627]]

present information concerning whether there is a legitimate medical 
explanation of the confirmed test result.

[65 FR 79526, Dec. 19, 2000, as amended at 73 FR 35971, June 25, 2008]



Sec.  40.135  What does the MRO tell the employee at the beginning of
the verification interview?

    (a) As the MRO, you must tell the employee that the laboratory has 
determined that the employee's test result was positive, adulterated, 
substituted, or invalid, as applicable. You must also tell the employee 
of the drugs for which his or her specimen tested positive, or the basis 
for the finding of adulteration or substitution.
    (b) You must explain the verification interview process to the 
employee and inform the employee that your decision will be based on 
information the employee provides in the interview.
    (c) You must explain that, if further medical evaluation is needed 
for the verification process, the employee must comply with your request 
for this evaluation and that failure to do so is equivalent of expressly 
declining to discuss the test result.
    (d) As the MRO, you must warn an employee who has a confirmed 
positive, adulterated, substituted or invalid result that you are 
required to provide to third parties drug test result information and 
medical information affecting the performance of safety-sensitive duties 
that the employee gives you in the verification process without the 
employee's consent (see Sec.  40.327).
    (1) You must give this warning to the employee before obtaining any 
medical information as part of the verification process.
    (2) For purposes of this paragraph (d), medical information includes 
information on medications or other substances affecting the performance 
of safety-sensitive duties that the employee reports using or medical 
conditions the employee reports having.
    (3) For purposes of this paragraph (d), the persons to whom this 
information may be provided include the employer, a SAP evaluating the 
employee as part of the return to duty process (see Sec.  40.293(g)), 
DOT, another Federal safety agency (e.g., the NTSB), or any state safety 
agency as required by state law.
    (e) You must also advise the employee that, before informing any 
third party about any medication the employee is using pursuant to a 
legally valid prescription consistent with the Controlled Substances 
Act, you will allow 5 business days from the date you report the 
verified negative result for the employee to have the prescribing 
physician contact you to determine if the medication can be changed to 
one that does not make the employee medically unqualified or does not 
pose a significant safety risk. If, in your reasonable medical judgment, 
a medical qualification issue or a significant safety risk remains after 
you communicate with the employee's prescribing physician or after 5 
business days, whichever is shorter, you must follow Sec.  40.327. If, 
as the MRO, you receive information that eliminates the medical 
qualification issue or significant safety risk, you must transmit this 
information to any third party to whom you previously provided 
information under Sec.  40.327.

[65 FR 79526, Dec. 19, 2000, as amended at 66 FR 41952, Aug. 9, 2001; 82 
FR 52245, Nov. 13, 2017; 88 FR 27645, May 2, 2023]



Sec.  40.137  On what basis does the MRO verify test results involving
marijuana, cocaine, amphetamines, semi-synthetic opioids, or PCP?

    (a) As the MRO, you must verify a confirmed positive test result for 
marijuana, cocaine, amphetamines, semi-synthetic opioids (i.e., 
hydrocodone, hydromorphone, oxycodone, and oxymorphone), and/or PCP 
unless the employee presents a legitimate medical explanation for the 
presence of the drug(s)/metabolite(s) in his or her system. In 
determining whether an employee's legally valid prescription consistent 
with the Controlled Substances Act for a substance in these categories 
constitutes a legitimate medical explanation, you must not question 
whether the prescribing physician should have prescribed the substance.
    (b) You must offer the employee an opportunity to present a 
legitimate medical explanation in all cases.

[[Page 628]]

    (c) The employee has the burden of proof that a legitimate medical 
explanation exists. The employee must present information meeting this 
burden at the time of the verification interview. As the MRO, you have 
discretion to extend the time available to the employee for this purpose 
for up to five days before verifying the test result, if you determine 
that there is a reasonable basis to believe that the employee will be 
able to produce relevant evidence concerning a legitimate medical 
explanation within that time.
    (d) If you determine that there is a legitimate medical explanation, 
you must verify the test result as negative. Otherwise, you must verify 
the test result as positive.
    (e) In determining whether a legitimate medical explanation exists, 
you may consider the employee's use of a medication from a foreign 
country. You must exercise your professional judgment consistently with 
the following principles:
    (1) There can be a legitimate medical explanation only with respect 
to a substance that is obtained legally in a foreign country.
    (2) There can be a legitimate medical explanation only with respect 
to a substance that has a legitimate medical use. Use of a drug of abuse 
(e.g., heroin, PCP, marijuana) or any other substance (see Sec.  
40.151(f) and (g)) that cannot be viewed as having a legitimate medical 
use can never be the basis for a legitimate medical explanation, even if 
the substance is obtained legally in a foreign country.
    (3) Use of the substance can form the basis of a legitimate medical 
explanation only if it is used consistently with its proper and intended 
medical purpose.
    (4) Even if you find that there is a legitimate medical explanation 
under this paragraph (e) and verify a test negative, you may have a 
responsibility to raise fitness-for-duty considerations with the 
employer (see Sec.  40.327).

[65 FR 79526, Dec. 19, 2000, as amended at 82 FR 52245, Nov. 13, 2017]



Sec.  40.139  On what basis does the MRO verify test results involving
6-acetylmorphine, codeine, and morphine?

    As the MRO, you must proceed as follows when you receive a 
laboratory confirmed positive opiate result:
    (a) If the laboratory confirms the presence of 6-acetylmorphine (6-
AM) in the specimen, you must verify the test result positive.
    (b) In the absence of 6-AM, if the laboratory confirms the presence 
of either morphine or codeine equal to or above 15,000 ng/mL (in urine) 
or equal to or above 150 ng/mL (in oral fluid), you must verify the test 
result as positive, unless the employee presents a legitimate medical 
explanation for the presence of the drug or drug metabolite in his or 
her system, as in the case of other drugs (see Sec.  40.137). 
Consumption of food products (e.g., poppy seeds) must not be considered 
a legitimate medical explanation for the employee having morphine or 
codeine at these concentrations.
    (c) For all other codeine and morphine positive results, you must 
verify a confirmed positive test result only if you determine that there 
is clinical evidence, in addition to the test, of unauthorized use of 
any opium, opiate, or opium derivative (i.e., morphine, codeine, or 
heroin).
    (1) As an MRO, it is your responsibility to use your best 
professional and ethical judgement and discretion to determine whether 
there is clinical evidence of unauthorized use of opiates. Examples of 
information that you may consider in making this judgement include, but 
are not limited to, the following:
    (i) Recent needle tracks;
    (ii) Behavioral and psychological signs of acute opiate intoxication 
or withdrawal;
    (iii) Clinical history of unauthorized use recent enough to have 
produced the laboratory test result;
    (iv) Use of a medication from a foreign country. See Sec.  40.137(e) 
for guidance on how to make this determination.
    (2) In order to establish the clinical evidence referenced in 
paragraphs (c)(1)(i) and (ii) of this section, personal

[[Page 629]]

observation of the employee is essential.
    (i) Therefore, you, as the MRO, must conduct, or cause another 
physician to conduct, a face-to-face examination of the employee.
    (ii) No face-to-face examination is needed in establishing the 
clinical evidence referenced in paragraph (c)(1)(iii) or (iv) of this 
section.
    (3) To be the basis of a verified positive result for codeine or 
morphine, the clinical evidence you find must concern a drug that the 
laboratory found in the specimen. (For example, if the test confirmed 
the presence of codeine, and the employee admits to unauthorized use of 
hydrocodone, you must not verify the test positive for codeine. The 
admission must be for the substance that was found through the actual 
drug test.)
    (4) As the MRO, you have the burden of establishing that there is 
clinical evidence of unauthorized use of opiates referenced in this 
paragraph (c). If you cannot make this determination (e.g., there is not 
sufficient clinical evidence or history), you must verify the test as 
negative. The employee does not need to show you that a legitimate 
medical explanation exists if no clinical evidence is established.

[77 FR 26473, May 4, 2012, as amended at 82 FR 52245, Nov. 13, 2017; 88 
FR 27645, May 2, 2023]



Sec.  40.141  How does the MRO obtain information for the verification
decision?

    As the MRO, you must do the following as you make the determinations 
needed for a verification decision:
    (a) You must conduct a medical interview. You must review the 
employee's medical history and any other relevant biomedical factors 
presented to you by the employee. You may direct the employee to undergo 
further medical evaluation by you or another physician.
    (b) If the employee asserts that the presence of a drug or drug 
metabolite in his or her specimen results from taking prescription 
medication (i.e., a legally valid prescription consistent with the 
Controlled Substances Act), you must review and take all reasonable and 
necessary steps to verify the authenticity of all medical records the 
employee provides.
    (1) You may contact the employee's physician or other relevant 
medical personnel for further information.
    (i) If you decide to contact the employee's pharmacy to authenticate 
whether the prescription offered by the employee was filled by the 
pharmacy, you or staff under your operational control can contact the 
pharmacy.
    (ii) If you utilize staff to perform the inquiry in paragraph 
(b)(1)(i) of this section, you must ensure operational control over the 
hiring, firing, evaluation of the staff and you must oversee the 
performance of the function of contacting a pharmacy to authenticate 
specific prescription(s) (e.g., outline or script what the staff will 
ask the pharmacy; occasionally monitor calls to assure quality control; 
or other methods to ensure the staff are properly conducting the calls 
with the pharmacies).
    (2) You may request an HHS-certified laboratory with validated 
protocols (see Sec.  40.81(c)) to conduct testing for D,L stereoisomers 
of amphetamine and methamphetamine or testing for tetrahydrocannabivarin 
(THC-V) when verifying lab results, as you determine necessary.

[65 FR 79526, Dec. 19, 2000, as amended at 82 FR 52245, Nov. 13, 2017; 
88 FR 27645, May 2, 2023]



Sec.  40.143  [Reserved]



Sec.  40.145  On what basis does the MRO verify test results involving
adulteration or substitution?

    (a) As an MRO, when you receive a laboratory report that a specimen 
is adulterated or substituted, you must treat that report in the same 
way you treat the laboratory's report of a confirmed positive for a drug 
or drug metabolite.
    (b) You must follow the same procedures used for verification of a 
confirmed positive test for a drug or drug metabolite (see Sec. Sec.  
40.129-40.135, 40.141, 40.151), except as otherwise provided in this 
section.
    (c) In the verification interview, you must explain the laboratory 
findings to the employee and address technical questions or issues the 
employee may raise.

[[Page 630]]

    (d) You must offer the employee the opportunity to present a 
legitimate medical explanation for the laboratory findings with respect 
to presence of the adulterant in, or the creatinine and specific gravity 
findings for, the specimen.
    (e) The employee has the burden of proof that there is a legitimate 
medical explanation.
    (1) To meet this burden in the case of an adulterated specimen, the 
employee must demonstrate that the adulterant found by the laboratory 
entered the specimen through physiological means.
    (2) To meet this burden in the case of a substituted specimen, the 
employee must demonstrate that he or she did produce or could have 
produced urine through physiological means, meeting the creatinine 
concentration criterion of less than 2 mg/dL and the specific gravity 
criteria of less than or equal to 1.0010 or greater than or equal to 
1.0200 (see Sec.  40.93(b)).
    (3) The employee must present information meeting this burden at the 
time of the verification interview. As the MRO, you have discretion to 
extend the time available to the employee for this purpose for up to 
five days before verifying the specimen, if you determine that there is 
a reasonable basis to believe that the employee will be able to produce 
relevant evidence supporting a legitimate medical explanation within 
that time.
    (f) As the MRO or the employer, you are not responsible for 
arranging, conducting, or paying for any studies, examinations or 
analyses to determine whether a legitimate medical explanation exists.
    (g) As the MRO, you must exercise your best professional judgment in 
deciding whether the employee has established a legitimate medical 
explanation.
    (1) If you determine that the employee's explanation does not 
present a reasonable basis for concluding that there may be a legitimate 
medical explanation, you must report the test to the DER as a verified 
refusal to test because of adulteration or substitution, as applicable.
    (2) If you believe that the employee's explanation may present a 
reasonable basis for concluding that there is a legitimate medical 
explanation, you must direct the employee to obtain, within the five-day 
period set forth in paragraph (e)(3) of this section, a further medical 
evaluation. This evaluation must be performed by a licensed physician 
(the ``referral physician''), acceptable to you, with expertise in the 
medical issues raised by the employee's explanation. (The MRO may 
perform this evaluation if the MRO has appropriate expertise.)
    (i) As the MRO or employer, you are not responsible for finding or 
paying a referral physician. However, on request of the employee, you 
must provide reasonable assistance to the employee's efforts to find 
such a physician. The final choice of the referral physician is the 
employee's, as long as the physician is acceptable to you.
    (ii) As the MRO, you must consult with the referral physician, 
providing guidance to him or her concerning his or her responsibilities 
under this section. As part of this consultation, you must provide the 
following information to the referral physician:
    (A) That the employee was required to take a DOT drug test, but the 
laboratory reported that the specimen was adulterated or substituted, 
which is treated as a refusal to test;
    (B) The consequences of the appropriate DOT agency regulation for 
refusing to take the required drug test;
    (C) That the referral physician must agree to follow the 
requirements of paragraphs (g)(3) through (g)(4) of this section; and
    (D) That the referral physician must provide you with a signed 
statement of his or her recommendations.
    (3) As the referral physician, you must evaluate the employee and 
consider any evidence the employee presents concerning the employee's 
medical explanation. You may conduct additional tests to determine 
whether there is a legitimate medical explanation. Any additional drug 
tests must be performed in an HHS-certified laboratory.
    (4) As the referral physician, you must then make a written 
recommendation to the MRO about whether the MRO should determine

[[Page 631]]

that there is a legitimate medical explanation. As the MRO, you must 
seriously consider and assess the referral physician's recommendation in 
deciding whether there is a legitimate medical explanation.
    (5) As the MRO, if you determine that there is a legitimate medical 
explanation, you must cancel the test and inform ODAPC in writing of the 
determination and the basis for it (e.g., referral physician's findings, 
evidence produced by the employee).
    (6) As the MRO, if you determine that there is not a legitimate 
medical explanation, you must report the test to the DER as a verified 
refusal to test because of adulteration or substitution.
    (h) The following are examples of types of evidence an employee 
could present to support an assertion of a legitimate medical 
explanation for a substituted urine result.
    (1) Medically valid evidence demonstrating that the employee is 
capable of physiologically producing urine meeting the creatinine and 
specific gravity criteria of Sec.  40.93(b).
    (i) To be regarded as medically valid, the evidence must have been 
gathered using appropriate methodology and controls to ensure its 
accuracy and reliability.
    (ii) Assertion by the employee that his or her personal 
characteristics (e.g., with respect to race, gender, weight, diet, 
working conditions) are responsible for the substituted result does not, 
in itself, constitute a legitimate medical explanation. To make a case 
that there is a legitimate medical explanation, the employee must 
present evidence showing that the cited personal characteristics 
actually result in the physiological production of urine meeting the 
creatinine and specific gravity criteria of Sec.  40.93(b).
    (2) Information from a medical evaluation under paragraph (g) of 
this section that the individual has a medical condition that has been 
demonstrated to cause the employee to physiologically produce urine 
meeting the creatinine and specific gravity criteria of Sec.  40.93(b).
    (i) A finding or diagnosis by the physician that an employee has a 
medical condition, in itself, does not constitute a legitimate medical 
explanation.
    (ii) To establish there is a legitimate medical explanation, the 
employee must demonstrate that the cited medical condition actually 
results in the physiological production of urine meeting the creatinine 
and specific gravity criteria of Sec.  40.93(b).

[65 FR 79526, Dec. 19, 2000, as amended at 68 FR 31626, May 28, 2003; 69 
FR 64867, Nov. 9, 2004; 88 FR 27646, May 2, 2023]



Sec.  40.147  [Reserved]



Sec.  40.149  May the MRO change a verified drug test result?

    (a) As the MRO, you may change a verified test result only in the 
following situations:
    (1) When you have reopened a verification that was done without an 
interview with an employee (see Sec.  40.133(d)).
    (2) If you receive information, not available to you at the time of 
the original verification, demonstrating that the laboratory made an 
error in identifying (e.g., a paperwork mistake) or testing (e.g., a 
false positive or negative) the employee's primary or split specimen. 
For example, suppose the laboratory originally reported a positive test 
result for Employee X and a negative result for Employee Y. You verified 
the test results as reported to you. Then the laboratory notifies you 
that it mixed up the two test results, and X was really negative and Y 
was really positive. You would change X's test result from positive to 
negative and contact Y to conduct a verification interview.
    (3) If, within 60 days of the original verification decision--
    (i) You receive information that could not reasonably have been 
provided to you at the time of the decision demonstrating that there is 
a legitimate medical explanation for the presence of drug(s)/
metabolite(s) in the employee's specimen; or
    (ii) You receive credible new or additional evidence that a 
legitimate medical explanation for an adulterated or substituted result 
exists.

    Example to paragraph (a)(3): If the employee's physician provides 
you a valid prescription that he or she failed to find at the time

[[Page 632]]

of the original verification, you may change the test result from 
positive to negative if you conclude that the prescription provides a 
legitimate medical explanation for the drug(s)/ metabolite(s) in the 
employee's specimen.

    (4) If you receive the information in paragraph (a)(3) of this 
section after the 60-day period, you must consult with ODAPC prior to 
changing the result.
    (5) When you have made an administrative error and reported an 
incorrect result.
    (b) If you change the result, you must immediately notify the DER in 
writing, as provided in Sec. Sec.  40.163-40.165.
    (c) You are the only person permitted to change a verified test 
result, such as a verified positive test result or a determination that 
an individual has refused to test because of adulteration or 
substitution. This is because, as the MRO, you have the sole authority 
under this part to make medical determinations leading to a verified 
test (e.g., a determination that there was or was not a legitimate 
medical explanation for a laboratory test result). For example, an 
arbitrator is not permitted to overturn the medical judgment of the MRO 
that the employee failed to present a legitimate medical explanation for 
a positive, adulterated, or substituted test result of his or her 
specimen.

[65 FR 79526, Dec. 19, 2000, as amended at 66 FR 41952, Aug. 9, 2001; 73 
FR 35971, June 25, 2008]



Sec.  40.151  What are MROs prohibited from doing as part of the
verification process?

    As an MRO, you are prohibited from doing the following as part of 
the verification process:
    (a) You must not consider any evidence (verbal or written 
information) from any drug tests that are not collected or tested in 
accordance with this part. For example, if an employee tells you he went 
to his own physician, provided a urine specimen, sent it to a 
laboratory, and received a negative test result, you are required to 
ignore this test result.
    (b) It is not your function to make decisions about factual disputes 
between the employee and the collector concerning matters occurring at 
the collection site that are not reflected on the CCF (e.g., concerning 
allegations that the collector left the area or left open collection 
containers where other people could access them.)
    (c) It is not your function to determine whether the employer should 
have directed that a test occur. For example, if an employee tells you 
that the employer misidentified her as the subject of a random test, or 
directed her to take a reasonable suspicion or post-accident test 
without proper grounds under a DOT agency drug or alcohol regulation, 
you must inform the employee that you cannot play a role in deciding 
these issues.
    (d) It is not your function to consider explanations of confirmed 
positive, adulterated, or substituted test results that would not, even 
if true, constitute a legitimate medical explanation. For example, an 
employee may tell you that someone slipped amphetamines into her drink 
at a party, that she unknowingly ingested a marijuana brownie, or that 
she traveled in a closed car with several people smoking crack. MROs are 
unlikely to be able to verify the facts of such passive or unknowing 
ingestion stories. Even if true, such stories do not present a 
legitimate medical explanation. Consequently, you must not declare a 
test as negative based on an explanation of this kind.
    (e) You must not verify a test negative based on information that a 
physician recommended that the employee use a drug listed in Schedule I 
of the Controlled Substances Act. (e.g., under a state law that purports 
to authorize such recommendations, such as the ``medical marijuana'' 
laws that some states have adopted).
    (f) You must not accept an assertion of consumption or other use of 
a hemp or other non-prescription marijuana-related product as a basis 
for verifying a marijuana test negative. You also must not accept such 
an explanation related to consumption of coca teas as a basis for 
verifying a cocaine test result as negative. Consuming or using such a 
product is not a legitimate medical explanation.

[[Page 633]]

    (g) You must not accept an assertion that there is a legitimate 
medical explanation for the presence of PCP, 6-AM, MDMA, or MDA in a 
specimen.
    (h) You must not accept, as a legitimate medical explanation for an 
adulterated specimen, an assertion that soap, bleach, or glutaraldehyde 
entered a specimen through physiological means. There are no 
physiological means through which these substances can enter a specimen.
    (i) You must not accept, as a legitimate medical explanation for a 
substituted specimen, an assertion that an employee can produce a urine 
specimen for which the creatinine level is below the laboratory's limit 
of detection. There are no physiological means through which a person 
can produce a urine specimen having this characteristic.

[65 FR 79526, Dec. 19, 2000, as amended at 66 FR 41952, Aug. 9, 2001; 75 
FR 49863, Aug. 16, 2010; 88 FR 27646, May 2, 2023]



Sec.  40.153  How does the MRO notify employees of their right to a 
test of the split specimen?

    (a) As the MRO, when you have verified a drug test as positive for a 
drug or drug metabolite, or as a refusal to test because of adulteration 
or substitution, you must notify the employee of his or her right to 
have the split specimen tested. You must also notify the employee of the 
procedures for requesting a test of the split specimen.
    (b) You must inform the employee that he or she has 72 hours from 
the time you provide this notification to him or her to request a test 
of the split specimen.
    (c) You must tell the employee how to contact you to make this 
request. You must provide telephone numbers or other information that 
will allow the employee to make this request. As the MRO, you must have 
the ability to receive the employee's calls at all times during the 72 
hour period (e.g., by use of an answering machine with a ``time stamp'' 
feature when there is no one in your office to answer the phone).
    (d) You must tell the employee that if he or she makes this request 
within 72 hours, the employer must ensure that the test takes place, and 
that the employee is not required to pay for the test from his or her 
own funds before the test takes place. You must also tell the employee 
that the employer may seek reimbursement for the cost of the test (see 
Sec.  40.173).
    (e) You must tell the employee that additional tests of the specimen 
e.g., DNA tests) are not authorized.



Sec.  40.155  What does the MRO do when a negative or positive test
result is also dilute?

    (a) When the laboratory reports that a specimen is dilute, you must, 
as the MRO, report to the DER that the specimen, in addition to being 
negative or positive, is dilute.
    (b) You must check the ``dilute'' box (Step 6) on Copy 2 of the CCF.
    (c) When you report a dilute specimen to the DER, you must explain 
to the DER the employer's obligations and choices under Sec.  40.197, to 
include the requirement for an immediate recollection under direct 
observation if the creatinine concentration of a negative-dilute 
specimen was greater than or equal to 2mg/dL but less than or equal to 
5mg/dL.
    (d) If the employee's recollection under direct observation, in 
paragraph (c) of this section, results in another negative-dilute, as 
the MRO, you must:
    (1) Review the CCF to ensure that there is documentation that the 
recollection was directly observed.
    (2) If the CCF documentation shows that the recollection was 
directly observed as required, report this result to the DER as a 
negative-dilute result.
    (3) If CCF documentation indicates that the recollection was not 
directly observed as required, do not report a result but again explain 
to the DER that there must be an immediate recollection under direct 
observation.

[65 FR 79526, Dec. 19, 2000, as amended at 66 FR 41952, Aug. 9, 2001; 68 
FR 31626, May 28, 2003; 69 FR 64867, Nov. 9, 2004; 73 FR 35971, June 25, 
2008]



Sec.  40.157  [Reserved]



Sec.  40.159  What does the MRO do when a drug test result is invalid?

    (a) As the MRO, when the laboratory reports that the test result is 
an invalid result, you must do the following:

[[Page 634]]

    (1) Discuss the laboratory results with a certifying scientist to 
determine if the primary specimen should be tested at another HHS-
certified laboratory. If the laboratory did not contact you as required 
by Sec. Sec.  40.91(e) and 40.96(b), you must contact the laboratory.
    (2) If you and the laboratory have determined that no further 
testing is necessary, contact the employee and inform the employee that 
the specimen was invalid. In contacting the employee, use the procedures 
set forth in Sec.  40.131.
    (3) After explaining the limits of disclosure (see Sec. Sec.  
40.135(d) and 40.327), you must determine if the employee has a medical 
explanation for the invalid result. You must inquire about the 
medications the employee may have taken.
    (4) If the employee gives an explanation that is acceptable, you 
must:
    (i) Place a check mark in the ``Test Cancelled'' box (Step 6) on 
Copy 2 of the CCF and enter ``Invalid Result'' and ``direct observation 
collection not required'' on the ``Remarks'' line.
    (ii) Report to the DER that the test is cancelled, the reason for 
cancellation, and that no further action is required unless a negative 
test result is required (i.e., pre-employment, return-to-duty, or 
follow-up tests).
    (iii) If a negative test result is required and the medical 
explanation concerns a situation in which the employee has a permanent 
or long-term medical condition that precludes him or her from providing 
a valid specimen, as the MRO, you must follow the procedures outlined at 
Sec.  40.160 for determining if there is clinical evidence that the 
individual is an illicit drug user.
    (5) If the employee is unable to provide an explanation and/or a 
valid prescription for a medication that interfered with the immunoassay 
test but denies having adulterated the specimen, you must:
    (i) Place a check mark in the ``Test Cancelled'' box (Step 6) on 
Copy 2 of the CCF and enter ``Invalid Result'' and ``direct observation 
collection required'' on the ``Remarks'' line.
    (ii) Report to the DER that the test is cancelled, the reason for 
cancellation, and that a second collection must take place immediately 
under direct observation. Recommend to the employer that an alternate 
specimen should be collected if practicable (e.g., oral fluid, if the 
specimen was urine).
    (iii) Instruct the employer to ensure that the employee has the 
minimum possible advance notice that he or she must go to the collection 
site.
    (6) When the test result is invalid because pH is greater than or 
equal to 9.0 but less than or equal to 9.5 and the employee has no other 
medical explanation for the pH, you should consider whether there is 
evidence of elapsed time and increased temperature that could account 
for the pH value.
    (i) You are authorized to consider the temperature conditions that 
were likely to have existed between the time of collection and 
transportation of the specimen to the laboratory, and the length of time 
between the specimen collection and arrival at the laboratory.
    (ii) You may talk with the collection site and laboratory to discuss 
time and temperature issues, including any pertinent information 
regarding specimen storage.
    (iii) If you determine that time and temperature account for the pH 
value, you must cancel the test and take no further action, as provided 
at paragraph (a)(4) of this section.
    (iv) If you determine that time and temperature fail to account for 
the pH value, you must cancel the test and direct another collection 
under direct observation, as provided at paragraph (a)(5) of this 
section.
    (b) You may only report an invalid test result when you are in 
possession of a legible copy of Copy 1 of the CCF. In addition, you must 
have Copy 2 of the CCF, a legible copy of it, or any other copy of the 
CCF containing the employee's signature.
    (c) If the employee admits to having adulterated or substituted the 
specimen, you must, on the same day, write and sign your own statement 
of what the employee told you. You must then report a refusal to test in 
accordance with Sec.  40.163 .
    (d) If the employee admits to using a drug, you must, on the same 
day, write and sign your own statement of what the employee told you. 
You must then report that admission to the DER for

[[Page 635]]

appropriate action under DOT Agency regulations. This test will be 
reported as cancelled with the reason noted.
    (e) If the employee's recollection (required at paragraph (a)(5) of 
this section) results in another invalid result for the same reason as 
reported for the first specimen, as the MRO, you must:
    (1) Review the CCF to ensure that there is documentation that the 
recollection was directly observed.
    (2) If the CCF review indicates that the recollection was directly 
observed as required, document that the employee had another specimen 
with an invalid result for the same reason.
    (3) Follow the recording and reporting procedures at (a)(4)(i) and 
(ii) of this section.
    (4) If a negative result is required (i.e., pre-employment, return-
to-duty, or follow-up tests), follow the procedures at Sec.  40.160 for 
determining if there is clinical evidence that the individual is an 
illicit drug user.
    (5) If the recollection was not directly observed as required, do 
not report a result but again explain to the DER that there must be an 
immediate recollection under direct observation.
    (f) If the employee's recollection (required at paragraph (a)(5) of 
this section) results in another invalid result for a different reason 
than that reported for the first specimen, as the MRO, you must:
    (1) Review the CCF to ensure that there is documentation that the 
recollection was directly observed.
    (2) If the CCF review indicates that the recollection was directly 
observed as required, document that the employee had another specimen 
with an invalid result for a different reason.
    (3) As the MRO, you should not contact the employee to discuss the 
result, but rather direct the DER to conduct an immediate recollection 
under direct observation without prior notification to the employee.
    (4) If the CCF documentation indicates that the recollection was not 
directly observed as required, do not report a result but again explain 
to the DER that there must be an immediate recollection under direct 
observation.
    (g) If, as the MRO, you receive a laboratory invalid result in 
conjunction with a positive, adulterated, and/or substituted result and 
you verify any of those results as being a positive and/or refusal to 
test, you do not report the invalid result unless the split specimen 
fails to reconfirm the result(s) of the primary specimen.

[65 FR 79526, Dec. 19, 2000, as amended at 73 FR 35972, June 25, 2008; 
75 FR 49863, Aug. 16, 2010; 88 FR 27646, May 2, 2023]



Sec.  40.160  What does the MRO do when a valid test result cannot be 
produced and a negative result is required?

    (a) If a valid test result cannot be produced and a negative result 
is required, (under Sec.  40.159 (a)(5)(iii) and (e)(4)), as the MRO, 
you must determine if there is clinical evidence that the individual is 
currently an illicit drug user. You must make this determination by 
personally conducting, or causing to be conducted, a medical evaluation. 
In addition, if appropriate, you may also consult with the employee's 
physician to gather information you need to reach this determination.
    (b) If you do not personally conduct the medical evaluation, as the 
MRO, you must ensure that one is conducted by a licensed physician 
acceptable to you.
    (c) For purposes of this section, the MRO or the physician 
conducting the evaluation may conduct an alternative test (e.g., blood) 
as part of the medically appropriate procedures in determining clinical 
evidence of drug use.
    (d) If the medical evaluation reveals no clinical evidence of drug 
use, as the MRO, you must report this to the employer as a negative test 
result with written notations regarding the medical examination. The 
report must also state why the medical examination was required (i.e., 
either the basis for the determination that a permanent or long-term 
medical condition exists or because the recollection under direct 
observation resulted in another invalid result for the same reason, as 
appropriate) and for the determination that no signs and symptoms of 
drug use exist.
    (1) Check ``Negative'' (Step 6) on the CCF.
    (2) Sign and date the CCF.
    (e) If the medical evaluation reveals clinical evidence of drug use, 
as the MRO, you must report the result to the

[[Page 636]]

employer as a cancelled test with written notations regarding the 
results of the medical examination. The report must also state why the 
medical examination was required (i.e., either the basis for the 
determination that a permanent or long-term medical condition exists or 
because the recollection under direct observation resulted in another 
invalid result for the same reason, as appropriate) and state the reason 
for the determination that signs and symptoms of drug use exist. Because 
this is a cancelled test, it does not serve the purpose of an actual 
negative test result (i.e., the employer is not authorized to allow the 
employee to begin or resume performing safety-sensitive functions, 
because a negative test result is needed for that purpose).

[73 FR 35972, June 25, 2008]



Sec.  40.161  What does the MRO do when a drug test specimen is
rejected for testing?

    As the MRO, when the laboratory reports that the specimen is 
rejected for testing (e.g., because of a fatal or uncorrected flaw), you 
must do the following:
    (a) Place a check mark in the ``Test Cancelled'' box (Step 6) on 
Copy 2 (or a legible copy of Copy 3-5) of the CCF and enter the reason 
on the ``Remarks'' line. If you do not have Copy 2 (or a legible copy of 
Copy 3-5), then enter ``Test Cancelled'' and the reason for the 
cancellation on a report in the format required under Sec.  40.163(c).
    (b) Report to the DER that the test is cancelled and the reason for 
cancellation, and that no further action is required unless a negative 
test is required (e.g., in the case of a pre-employment, return-to-duty, 
or follow-up test).
    (c) You may only report a test cancelled because of a ``rejected for 
testing'' laboratory result when you are in possession of a legible copy 
of Copy 1 of the CCF. In addition, you must have Copy 2 of the CCF, a 
legible copy of it, or any other copy of the CCF containing the 
employee's signature. If you do not have Copy 2 (or a legible copy of 
Copy 3-5), then enter ``Test Cancelled'' and the reason for the 
cancellation on a report in the format required under Sec.  40.163(c).

[65 FR 79526, Dec. 19, 2000, as amended at 88 FR 27646, May 2, 2023]



Sec.  40.162  What must MROs do with multiple verified results for the
same testing event?

    (a) If the testing event is one in which there was one specimen 
collection with multiple verified non-negative results, as the MRO, you 
must report them all to the DER. For example, if you verified the 
specimen as being positive for marijuana and cocaine and as being a 
refusal to test because the specimen was also adulterated, as the MRO, 
you should report the positives and the refusal to the DER.
    (b) If the testing event was one in which two separate specimen 
collections (e.g., a specimen out of temperature range and the 
subsequent observed collection) were sent to the laboratory, as the MRO, 
you must:
    (1) If both specimens were verified negative, report the result as 
negative.
    (2) If either of the specimens was verified negative and the other 
was verified as one or more non-negative(s), report the non-negative 
result(s) only. For example, if you verified one specimen as negative 
and the other as a refusal to test because the second specimen was 
substituted, as the MRO you should report only the refusal to the DER.
    (i) If the first specimen is reported as negative, but the result of 
the second specimen has not been reported by the laboratory, as the MRO, 
you should hold--not report--the result of the first specimen until the 
result of the second specimen is received.
    (ii) If the first specimen is reported as non-negative, as the MRO, 
you should report the result immediately and not wait to receive the 
result of the second specimen.
    (3) If both specimens were verified non-negative, report all of the 
non-negative results. For example, if you verified one specimen as 
positive and the other as a refusal to test because the specimen was 
adulterated, as the MRO, you should report the positive and the refusal 
results to the DER.
    (c) As an exception to paragraphs (a) and (b) of this section, as 
the MRO, you

[[Page 637]]

must follow procedures at Sec.  40.159(g) when any verified non-negative 
result is also invalid.

[73 FR 35972, June 25, 2008, as amended at 82 FR 52245, Nov. 13, 2017]



Sec.  40.163  How does the MRO report drug test results?

    (a) As the MRO, it is your responsibility to report all drug test 
results to the employer.
    (b) You may use a signed or stamped and dated legible photocopy of 
Copy 2 of the CCF to report test results.
    (c) If you do not report test results using Copy 2 of the CCF for 
this purpose, you must provide a written report (e.g., a letter) for 
each test result. This report must, as a minimum, include the following 
information:
    (1) Full name, as indicated on the CCF, of the employee tested;
    (2) Specimen ID number from the CCF and the SSN or employee ID No.;
    (3) Reason for the test, if indicated on the CCF (e.g., random, 
post-accident);
    (4) Date of the collection;
    (5) Date you received Copy 2 of the CCF;
    (6) Result of the test (i.e., positive, negative, dilute, refusal to 
test, test cancelled) and the date the result was verified by the MRO;
    (7) For verified positive tests, the drug(s)/metabolite(s) for which 
the test was positive;
    (8) For cancelled tests, the reason for cancellation; and
    (9) For refusals to test, the reason for the refusal determination 
(e.g., in the case of an adulterated test result, the name of the 
adulterant).
    (d) As an exception to the reporting requirements of paragraph (b) 
and (c) of this section, the MRO may report negative results using an 
electronic data file.
    (1) If you report negatives using an electronic data file, the 
report must contain, as a minimum, the information specified in 
paragraph (c) of this section, as applicable for negative test results.
    (2) In addition, the report must contain your name, address, and 
phone number, the name of any person other than you reporting the 
results, and the date the electronic results report is released.
    (e) If you use a written report as provided in paragraph (c) of this 
section to report results, you must retain a copy of the written report. 
If you use the electronic data file to report negatives, as provided in 
paragraph (d) of this section, you must retain a retrievable copy of 
that report in a format suitable for inspection and audit by a DOT 
representative. In either case, you must keep the completed Copy 2 of 
the CCF. When completing Copy 2, either the MRO must sign and date it 
(for both negatives and non-negatives) or MRO staff must stamp and date 
it (for negatives only).
    (f) You must not use Copy 1 of the CCF to report drug test results.
    (g) You must not provide quantitative values to the DER or C/TPA for 
drug or validity test results. However, you must provide the test 
information in your possession to a SAP who consults with you (see Sec.  
40.293(g)).
    (h) You must maintain reports and records related to negatives and 
cancelled results for one year; you must maintain reports and records 
related to positives and refusals for five years, unless otherwise 
specified by applicable DOT agency regulations.

[66 FR 41952, Aug. 9, 2001, as amended at 75 FR 49863, Aug. 16, 2010; 75 
FR 59107, Sept. 27, 2010; 76 FR 59578, Sept. 27, 2011; 88 FR 27646, May 
2, 2023]



Sec.  40.165  To whom does the MRO transmit reports of drug test results?

    (a) As the MRO, you must report all drug test results to the DER, 
except in the circumstances provided for in Sec.  40.345 .
    (b) If the employer elects to receive reports of results through a 
C/TPA, acting as an intermediary as provided in Sec.  40.345 , you must 
report the results through the designated C/TPA.



Sec.  40.167  How are MRO reports of drug results transmitted to 
the employer?

    As the MRO or C/TPA who transmits drug test results to the employer, 
you must comply with the following requirements:
    (a) You must report the results in a confidential manner.

[[Page 638]]

    (b) You must transmit to the DER on the same day the MRO verifies 
the result or the next business day all verified positive test results, 
results requiring an immediate collection under direct observation, 
adulterated or substituted specimen results, and other refusals to test.
    (1) Direct telephone contact with the DER is the preferred method of 
immediate reporting. Follow up your phone call with appropriate 
documentation (see Sec.  40.163).
    (2) You are responsible for identifying yourself to the DER, and the 
DER must have a means to confirm your identification.
    (3) The MRO's report that you transmit to the employer must contain 
all of the information required by Sec.  40.163 .
    (c) You must transmit the MRO's report(s) of verified tests to the 
DER so that the DER receives it within two days of verification by the 
MRO.
    (1) You must fax, courier, mail, or electronically transmit a 
legible image or copy of either the signed or stamped and dated Copy 2 
or the written report (see Sec.  40.163(b) and (c)).
    (2) Negative results reported electronically (i.e., computer data 
file) do not require an image of Copy 2 or the written report.
    (d) In transmitting test results, you or the C/TPA and the employer 
must ensure the security of the transmission and limit access to any 
transmission, storage, or retrieval systems.
    (e) MRO reports are not subject to modification or change by anyone 
other than the MRO, as provided in Sec.  40.149(c).

[65 FR 79526, Dec. 19, 2000, as amended at 66 FR 41953, Aug. 9, 2001]



Sec.  40.169  Where is other information concerning the role of MROs 
and the verification process found in this regulation?

    You can find more information concerning the role of MROs in several 
sections of this part:

Sec.  40.3--Definition.
Sec. Sec.  40.47-40.49--Correction of form and kit errors.
Sec.  40.67--Role in direct observation and other atypical test 
          situations.
Sec.  40.83--Laboratory handling of fatal and correctable flaws.
Sec.  40.97--Laboratory handling of test results and quantitative 
          values.
Sec.  40.99--Authorization of longer laboratory retention of specimens.
Sec.  40.101--Relationship with laboratories; avoidance of conflicts of 
          interest.
Sec.  40.171--Request for test of split specimen.
Sec.  40.187--Action concerning split specimen test results.
Sec.  40.193--Role in ``shy bladder'' situations.
Sec.  40.195--Role in cancelling tests.
Sec. Sec.  40.199-40.203--Documenting errors in tests.
Sec.  40.327--Confidentiality and release of information.
Sec.  40.347--Transfer of records.
Sec.  40.353--Relationships with service agents.

[65 FR 79526, Dec. 19, 2000, as amended at 82 FR 52245, Nov. 13, 2017]



                     Subpart H_Split Specimen Tests



Sec.  40.171  How does an employee request a test of a split specimen?

    (a) As an employee, when the MRO has notified you that you have a 
verified positive drug test and/or refusal to test because of 
adulteration or substitution, you have 72 hours from the time of 
notification to request a test of the split specimen. The request may be 
verbal or in writing. If you make this request to the MRO within 72 
hours, you trigger the requirements of this section for a test of the 
split specimen. There is no split specimen testing for an invalid 
result.
    (b)(1) If, as an employee, you have not requested a test of the 
split specimen within 72 hours, you may present to the MRO information 
documenting that serious injury, illness, lack of actual notice of the 
verified test result, inability to contact the MRO (e.g., there was no 
one in the MRO's office and the answering machine was not working), or 
other circumstances unavoidably prevented you from making a timely 
request.
    (2) As the MRO, if you conclude from the employee's information that 
there was a legitimate reason for the employee's failure to contact you 
within 72 hours, you must direct that the test of the split specimen 
take place, just as you would when there is a timely request.
    (c) When the employee makes a timely request for a test of the split 
specimen under paragraphs (a) and (b) of this section, you must, as the 
MRO, immediately provide written notice to

[[Page 639]]

the laboratory that tested the primary specimen, directing the 
laboratory to forward the split specimen to a second HHS-certified 
laboratory. You must also document the date and time of the employee's 
request.

[65 FR 79526, Dec. 19, 2000, as amended at 73 FR 35972, June 25, 2008]



Sec.  40.173  Who is responsible for paying for the test of a split
specimen?


    (a) As the employer, you are responsible for making sure (e.g., by 
establishing appropriate accounts with laboratories for testing split 
specimens) that the MRO, first laboratory, and second laboratory perform 
the functions noted in Sec. Sec.  40.175-40.185 in a timely manner, once 
the employee has made a timely request for a test of the split specimen.
    (b) As the employer, you must not condition your compliance with 
these requirements on the employee's direct payment to the MRO or 
laboratory or the employee's agreement to reimburse you for the costs of 
testing. For example, if you ask the employee to pay for some or all of 
the cost of testing the split specimen, and the employee is unwilling or 
unable to do so, you must ensure that the test takes place in a timely 
manner, even though this means that you pay for it.
    (c) As the employer, you may seek payment or reimbursement of all or 
part of the cost of the split specimen from the employee (e.g., through 
your written company policy or a collective bargaining agreement). This 
part takes no position on who ultimately pays the cost of the test, so 
long as the employer ensures that the testing is conducted as required 
and the results released appropriately.



Sec.  40.175  What steps does the first laboratory take with a split
specimen?

    (a) As the laboratory at which the primary and split specimen first 
arrive, you must check to see whether the split specimen is available 
for testing.
    (b) If the split specimen is unavailable or appears insufficient, 
you must then do the following:
    (1) Continue the testing process for the primary specimen as you 
would normally. Report the results for the primary specimen without 
providing the MRO information regarding the unavailable split specimen.
    (2) Upon receiving a letter from the MRO instructing you to forward 
the split specimen to another laboratory for testing, report to the MRO 
that the split specimen is unavailable for testing. Provide as much 
information as you can about the cause of the unavailability.
    (c) As the laboratory that tested the primary specimen, you are not 
authorized to open the split specimen under any circumstances (except 
when the split specimen is redesignated as provided in Sec.  40.83).
    (d) When you receive written notice from the MRO instructing you to 
send the split specimen to another HHS-certified laboratory, you must 
forward the following items to the second laboratory:
    (1) The split specimen in its original specimen bottle, with the 
seal intact;
    (2) A copy of the MRO's written request; and
    (3) A copy of Copy 1 of the CCF, which identifies the drug(s)/
metabolite(s) or the validity criteria to be tested for.
    (e) You must not send to the second laboratory any information about 
the identity of the employee. Inadvertent disclosure does not, however, 
cause a fatal flaw.
    (f) This subpart does not prescribe who gets to decide which HHS-
certified laboratory is used to test the split specimen. That decision 
is left to the parties involved.



Sec.  40.177  What does the second laboratory do with the split specimen
when it is tested to reconfirm the presence of a drug or drug metabolite?

    (a) As the laboratory testing the split specimen, you must test the 
split specimen for the drug(s)/drug metabolite(s) confirmed in the 
primary specimen.
    (b) You must conduct this test without regard to the cutoff 
concentrations of Sec.  40.85 or Sec.  40.91, as applicable.
    (c) If the test fails to reconfirm the presence of the drug(s)/drug 
metabolite(s) that were reported in the primary specimen, you must 
conduct validity tests in an attempt to determine

[[Page 640]]

the reason for being unable to reconfirm the presence of the drug(s)/
metabolite(s). You should conduct the same validity tests as you would 
conduct on a primary specimen set forth in Sec.  40.87 or Sec.  40.93, 
as applicable.
    (d) In addition, if the test fails to reconfirm the presence of the 
drug(s)/ drug metabolite(s) reported in the primary specimen, you may 
send the specimen or an aliquot of it for testing at another HHS-
certified laboratory that has the capability to conduct another 
reconfirmation test.

[65 FR 79526, Dec. 19, 2000, as amended at 73 FR 35972, June 25, 2008; 
88 FR 27646, May 2, 2023]



Sec.  40.179  What does the second laboratory do with the split specimen
when it is tested to reconfirm an adulterated test result?

    (a) As the laboratory testing the split specimen, you must test the 
split specimen for the adulterant detected in the primary specimen, 
using the confirmatory test for the adulterant and using criteria in 
Sec.  40.89 or Sec.  40.93, as applicable and confirmatory cutoff levels 
required by the HHS Mandatory Guidelines.
    (b) In addition, if the test fails to reconfirm the adulterant 
result reported in the primary specimen, you may send the specimen or an 
aliquot of it for testing at another HHS-certified laboratory that has 
the capability to conduct another reconfirmation test.

[73 FR 35973, June 25, 2008, as amended at 88 FR 27646, May 2, 2023]



Sec.  40.181  What does the second laboratory do with the split specimen
when it is tested to reconfirm a substituted test result?

    As the laboratory testing a urine split specimen, you must test the 
split specimen using the confirmatory tests for creatinine and specific 
gravity, using the criteria set forth in Sec.  40.88.

[88 FR 27646, May 2, 2023]



Sec.  40.183  What information do laboratories report to MROs regarding
split specimen results?

    (a) As the laboratory responsible for testing the split specimen, 
you must report split specimen test results by checking the 
``Reconfirmed'' box and/or the ``Failed to Reconfirm'' box (Step 5(b)) 
on Copy 1 of the CCF, as appropriate, and by providing clarifying 
remarks using current HHS Mandatory Guidelines requirements.
    (b) As the laboratory certifying scientist, enter your name, sign, 
and date the CCF.

[65 FR 79526, Dec. 19, 2000, as amended at 73 FR 35972, June 25, 2008]



Sec.  40.185  Through what methods and to whom must a laboratory report
split specimen results?

    (a) As the laboratory testing the split specimen, you must report 
laboratory results directly, and only, to the MRO at his or her place of 
business. You must not report results to or through the DER or another 
service agent (e.g., a C/TPA).
    (b) You must fax, courier, mail, or electronically transmit a 
legible image or copy of the fully-completed Copy 1 of the CCF, which 
has been signed by the certifying scientist.
    (c) You must transmit the laboratory result to the MRO immediately, 
preferably on the same day or next business day as the result is signed 
and released.



Sec.  40.187  What does the MRO do with split specimen laboratory
results?

    As the MRO, the split specimen laboratory results you receive will 
fall into five categories. You must take the following action, as 
appropriate, when a laboratory reports split specimen results to you.
    (a) Category 1: The laboratory reconfirmed one or more of the 
primary specimen results. As the MRO, you must report to the DER and the 
employee the result(s) that was/were reconfirmed.
    (1) In the case of a reconfirmed positive test(s) for drug(s) or 
drug metabolite(s), the positive is the final result.
    (2) In the case of a reconfirmed adulterated or substituted result, 
the refusal to test is the final result.
    (3) In the case of a combination positive and refusal to test 
results, the final result is both positive and refusal to test.
    (b) Category 2: The laboratory failed to reconfirm all of the 
primary specimen results because, as appropriate,

[[Page 641]]

drug(s)/drug metabolite(s) were not detected; adulteration criteria were 
not met; and/or substitution criteria were not met. As the MRO, you must 
report to the DER and the employee that the test must be cancelled.
    (1) As the MRO, you must inform ODAPC of the failure to reconfirm 
using the format in appendix F to this part.
    (2) In a case where the split failed to reconfirm because the 
substitution criteria were not met and the split specimen creatinine 
concentration was equal to or greater than 2mg/dL but less than or equal 
to 5mg/dL, as the MRO, you must, in addition to step (b)(1) of this 
paragraph, direct the DER to ensure the immediate collection of another 
specimen from the employee under direct observation, with no notice 
given to the employee of this collection requirement until immediately 
before the collection.
    (3) In a case where the split failed to reconfirm and the primary 
specimen's result was also invalid, direct the DER to ensure the 
immediate collection of another specimen from the employee under direct 
observation, with no notice given to the employee of this collection 
requirement until immediately before the collection.
    (c) Category 3: The laboratory failed to reconfirm all of the 
primary specimen results, and also reported that the split specimen was 
invalid, adulterated, and/or substituted.
    (1) In the case where the laboratory failed to reconfirm all of the 
primary specimen results and the split was reported as invalid, as the 
MRO, you must:
    (i) Report to the DER and the employee that the test must be 
cancelled and the reason for the cancellation.
    (ii) Direct the DER to ensure the immediate collection of another 
specimen from the employee under direct observation, with no notice 
given to the employee of this collection requirement until immediately 
before the collection.
    (iii) Inform ODAPC of the failure to reconfirm using the format in 
appendix F to this part.
    (2) In the case where the laboratory failed to reconfirm any of the 
primary specimen results, and the split was reported as adulterated and/
or substituted, as the MRO, you must:
    (i) Contact the employee and inform the employee that the laboratory 
has determined that his or her split specimen is adulterated and/or 
substituted, as appropriate.
    (ii) Follow the procedures of Sec.  40.145 to determine if there is 
a legitimate medical explanation for the laboratory finding of 
adulteration and/or substitution, as appropriate.
    (iii) If you determine that there is a legitimate medical 
explanation for the adulterated and/or substituted test result, report 
to the DER and the employee that the test must be cancelled; and inform 
ODAPC of the failure to reconfirm using the format in appendix F to this 
part.
    (iv) If you determine that there is not a legitimate medical 
explanation for the adulterated and/or substituted test result, you must 
take the following steps:
    (A) Report the test to the DER and the employee as a verified 
refusal to test. Inform the employee that he or she has 72 hours to 
request a test of the primary specimen to determine if the adulterant 
found in the split specimen is also present in the primary specimen and/
or to determine if the primary specimen meets appropriate substitution 
criteria.
    (B) Except when the request is for a test of the primary specimen 
and is being made to the laboratory that tested the primary specimen, 
follow the procedures of Sec. Sec.  40.153, 40.171, 40.173, 40.179, 
40.181, and 40.185, as appropriate.
    (C) As the laboratory that tests the primary specimen to reconfirm 
the presence of the adulterant found in the split specimen and/or to 
determine that the primary specimen meets appropriate substitution 
criteria, report your result to the MRO on a photocopy (faxed, mailed, 
scanned, couriered) of Copy 1 of the CCF.
    (D) If the test of the primary specimen reconfirms the adulteration 
and/or substitution finding of the split specimen, as the MRO you must 
report the result as a refusal to test as provided in paragraph (a)(2) 
of this section.
    (E) If the test of the primary specimen fails to reconfirm the 
adulteration and/or substitution finding of the split

[[Page 642]]

specimen, as the MRO you must cancel the test, following procedures in 
paragraph (b) of this section.
    (d) Category 4: The laboratory failed to reconfirm one or more but 
not all of the primary specimen results, and also reported that the 
split specimen was invalid, adulterated, and/or substituted. As the MRO, 
in the case where the laboratory reconfirmed one or more of the primary 
specimen result(s), you must follow procedures in paragraph (a) of this 
section and:
    (1) Report that the split was also reported as being invalid, 
adulterated, and/or substituted (as appropriate).
    (2) Inform the DER to take action only on the reconfirmed result(s).
    (e) Category 5: The split specimen was not available for testing or 
there was no split laboratory available to test the specimen. As the 
MRO, you must:
    (1) Report to the DER and the employee that the test must be 
cancelled and the reason for the cancellation;
    (2) Direct the DER to ensure the immediate recollection of another 
specimen from the employee under direct observation, with no notice 
given to the employee of this collection requirement until immediately 
before the collection; and
    (3) Notify ODAPC of the failure to reconfirm using the format in 
appendix F to this part.
    (f) For all split specimen results, as the MRO you must in Step 7 of 
Copy 2 of the CCF:
    (1) Report split specimen test results by checking the 
``Reconfirmed'' box and/or the ``Failed to Reconfirm'' box, or the 
``Test Cancelled'' box, as appropriate.
    (2), Enter your name, sign, and date.
    (3) Send a legible copy of Copy 2 of the CCF (or a signed and dated 
letter, see Sec.  40.163) to the employer and keep a copy for your 
records. Transmit the document as provided in Sec.  40.167.

[73 FR 35973, June 25, 2008, as amended at 75 FR 59108, Sept. 27, 2010; 
88 FR 27646, May 2, 2023]



Sec.  40.189  Where is other information concerning split specimens
found in this regulation?

    You can find more information concerning split specimens in several 
sections of this part:

Sec.  40.3--Definition.
Sec.  40.65--Quantity of split specimen.
Sec.  40.67--Directly observed test when split specimen is unavailable.
Sec. Sec.  40.71-40.73--Collection process for split specimens.
Sec.  40.83--Laboratory accessioning of split specimens.
Sec.  40.99--Laboratory retention of split specimens.
Sec.  40.153--MRO notice to employees on tests of split specimen.
Sec. Sec.  40.193 and 40.201--MRO actions on insufficient or unavailable 
          split specimens.
Appendix D to Part 40--Report format for split specimen failure to 
          reconfirm.

[65 FR 79526, Dec. 19, 2000, as amended at 82 FR 52245, Nov. 13, 2017]



                    Subpart I_Problems in Drug Tests



Sec.  40.191  What is a refusal to take a DOT drug test, and what 
are the consequences?

    (a) As an employee, you have refused to take a drug test if you:
    (1) Fail to appear for any test (except a pre-employment test) 
within a reasonable time, as determined by the employer, consistent with 
applicable DOT agency regulations, after being directed to do so by the 
employer. This includes the failure of an employee (including an owner-
operator) to appear for a test when called by a C/TPA (see Sec.  
40.61(a));
    (2) Fail to remain at the testing site until the testing process is 
complete. Provided that an employee who leaves the collection site 
before the testing process commences (see Sec.  40.63(c) or Sec.  
40.72(e), as applicable) for a pre-employment test is not deemed to have 
refused to test. The collector is not required to inform an employee 
that the failure to remain at the collection site is a refusal. If an 
employee leaves prior to the completion of the testing process, per 
Sec.  40.355(i) the employer must decide whether the employee's actions 
constitute a refusal;
    (3) Fail to provide a specimen for any drug test required by this 
part or DOT agency regulations. Provided that an employee who does not 
provide a specimen because he or she has left the testing site before 
the testing process commences (see Sec.  40.63(c) or Sec.  40.72(e), as 
applicable) for a pre-employment test is not deemed to have refused to 
test. The collector is not required to inform an

[[Page 643]]

employee that the failure to remain at the collection site is a refusal. 
If an employee leaves prior to the completion of the testing process, 
per Sec.  40.355(i) the employer must decide whether the employee's 
actions constitute a refusal;
    (4) In the case of a directly observed or monitored urine collection 
in a drug test, fail to permit the observation or monitoring of an 
employee's provision of a specimen (see Sec. Sec.  40.67(m) and 
40.69(g));
    (5) Fail to provide a sufficient amount of specimen when directed, 
and it has been determined, through a required medical evaluation, that 
there was no adequate medical explanation for the failure (see Sec.  
40.193(d)(2));
    (6) Fail or decline to take an additional drug test the employer or 
collector has directed you to take (see, for instance, Sec.  40.197(b) 
as applicable);
    (7) Fail to undergo a medical examination or evaluation, as directed 
by the MRO as part of the verification process, or as directed by the 
DER under Sec.  40.193(c). In the case of a pre-employment drug test, 
the employee is deemed to have refused to test on this basis only if the 
pre-employment test is conducted following a contingent offer of 
employment. If there was no contingent offer of employment, the MRO will 
cancel the test;
    (8) Fail to cooperate with any part of the testing process (e.g., 
refuse to empty pockets when directed by the collector, behave in a 
confrontational way that disrupts the collection process, fail to wash 
hands after being directed to do so by the collector, fail to remove 
objects from mouth, fail to permit inspection of the oral cavity, or 
fail to complete a rinse when requested);
    (9) For an observed urine collection, fail to follow the observer's 
instructions to raise your clothing above the waist, lower clothing and 
underpants, and to turn around to permit the observer to determine if 
you have any type of prosthetic or other device that could be used to 
interfere with the collection process;
    (10) Possess or wear a prosthetic or other device that could be used 
to interfere with the collection process; or
    (11) Admit to the collector or MRO that you adulterated or 
substituted the specimen.
    (b) As an employee, if the MRO reports that you have a verified 
adulterated or substituted test result, you have refused to take a drug 
test.
    (c) As an employee, if you refuse to take a drug test, you incur the 
consequences specified under DOT agency regulations for a violation of 
those DOT agency regulations. The consequences specified under DOT 
agency regulations for a refusal cannot be overturned or set aside by an 
arbitration, grievance, State court or other non-Federal forum that 
adjudicates the personnel decisions the employer has taken against the 
employee.
    (d) As a collector or an MRO, when an employee refuses to 
participate in the part of the testing process in which you are 
involved, you must terminate the portion of the testing process in which 
you are involved, document the refusal on the CCF (including, in the 
case of the collector, printing the employee's name on Copy 2 of the 
CCF), immediately notify the DER by any means (e.g., telephone or secure 
fax machine) that ensures that the refusal notification is immediately 
received. As a referral physician (e.g., physician evaluating a ``shy 
bladder'' condition or a claim of a legitimate medical explanation in a 
validity testing situation), you must notify the MRO, who in turn will 
notify the DER.
    (1) As the collector, you must note the actions that may constitute 
a refusal in the ``Remarks'' line (Step 2), and sign and date the CCF. 
The collector does not make the final decision about whether the 
employee's conduct constitutes a refusal to test; the employer has the 
sole responsibility to decide whether a refusal occurred, as stated in 
Sec.  40.355(i), the employer has a non-delegable duty to make the 
decision about whether the employee has refused to test.
    (2) As the MRO, you must note the refusal by checking the ``Refusal 
to Test'' box in Step 6 on Copy 2 of the CCF, checking whether the 
specimen was adulterated or substituted and, if adulterated, noting the 
adulterant/reason. If there was another reason for the refusal, check 
``Other'' in Step 6 on

[[Page 644]]

Copy 2 of the CCF, and note the reason next to the ``Other'' box and on 
the ``Remarks'' lines, as needed. You must then sign and date the CCF.
    (e) As an employee, when you refuse to take a non-DOT test or to 
sign a non-DOT form, you have not refused to take a DOT test. There are 
no consequences under DOT agency regulations for refusing to take a non-
DOT test.

[65 FR 79526, Dec. 19, 2000, as amended at 66 FR 41953, Aug. 9, 2001; 68 
FR 31626, May 28, 2003; 71 FR 49384, Aug. 23, 2006; 73 FR 35974, June 
25, 2008; 75 FR 59108, Sept. 27, 2010; 88 FR 27647, May 2, 2023]



Sec.  40.193  What happens when an employee does not provide a sufficient
amount of specimen for a drug test?

    (a) If an employee does not provide a sufficient amount of specimen 
to permit a drug test (i.e., 45 mL of urine in a single void, or 2mL 
oral fluid in a single sampling, as applicable) you, as the collector, 
must provide another opportunity to the employee to do so. In accordance 
with the employer's instructions, this can be done using the same 
specimen type as the original collection or this can be done by a 
collector qualified to use an alternate specimen collection for this 
purpose.
    (1) If you change to an alternate specimen collection at this point 
(i.e., from urine to oral fluid; or from oral fluid to urine), the next 
collection begins under Sec.  40.61(e) for urine or Sec.  40.72 for oral 
fluid collection.
    (i) If you proceed with an alternate specimen collection, discard 
the insufficient specimen and proceed with the next specimen collection.
    (ii) If you proceed with an alternate specimen collection, discard 
the CCF for the insufficient specimen and begin a new CCF for the next 
specimen collection with a notation in the remarks section of the new 
CCF.
    (b)(1) As the collector, you must do the following when continuing 
with a urine specimen collection under this section:
    (i) Discard the insufficient specimen, except where the insufficient 
specimen was out of temperature range or showed evidence of adulteration 
or tampering (see Sec.  40.65(b) and (c)).
    (ii) Urge the employee to drink up to 40 ounces of fluid, 
distributed reasonably through a period of up to three hours, or until 
the individual has provided a sufficient urine specimen, whichever 
occurs first. It is not a refusal to test if the employee declines to 
drink. Document on the Remarks line of the CCF (Step 2), and inform the 
employee of the time at which the three-hour period begins and ends.
    (iii) If the employee refuses to make the attempt to provide a new 
urine specimen or leaves the collection site before the collection 
process is complete, you must discontinue the collection, note that fact 
on the ``Remarks'' line of the CCF (Step 2), and immediately notify the 
DER of the conduct as provided in Sec.  40.191(e)(1); the employer 
decides whether the situation is deemed to be a refusal.
    (iv) If the employee has not provided a sufficient specimen within 
three hours of the first unsuccessful attempt to provide the specimen, 
you must discontinue the collection, note the fact on the ``Remarks'' 
line of the CCF (Step 2), and immediately notify the DER. You must also 
discard any specimen the employee previously provided, including any 
specimen that is ``out of temperature range'' or shows signs of 
tampering. In the remarks section of the CCF that you will distribute to 
the MRO and DER, note the fact that the employee provided an ``out of 
temperature range specimen'' or ``specimen that shows signs of 
tampering'' and that it was discarded because the employee did not 
provide a second sufficient specimen.
    (2) As the collector, you must do the following when continuing with 
an oral fluid specimen collection under this section:
    (i) If the employee demonstrates an inability to provide a specimen 
after 15 minutes of using the collection device, and if the donor states 
that he or she could provide a specimen after drinking some fluids, urge 
the employee to drink (up to 8 ounces) and wait an additional 10 minutes 
before beginning the next specimen collection (a period of up to one 
hour must be provided, or until the donor has provided a sufficient oral 
fluid specimen, whichever occurs first). If the employee simply

[[Page 645]]

needs more time before attempting to provide an oral fluid specimen, the 
employee is not required to drink any fluids during the one-hour wait 
time. It is not a refusal to test if the employee declines to drink. The 
employee must remain at the collection site, in a monitored area 
designated by the collector, during the wait period.
    (ii) If the employee has not provided a sufficient specimen within 
one hour of the first unsuccessful attempt to provide the specimen, you 
must discontinue the collection, note the fact on the ``Remarks'' line 
of the CCF (Step 2), and immediately notify the DER.
    (3) Send Copy 2 of the CCF to the MRO and Copy 4 to the DER. You 
must send or fax these copies to the MRO and DER within 24 hours or the 
next business day.
    (c) As the DER, if the collector informs you that the employee has 
not provided a sufficient amount of specimen (see paragraph (b) of this 
section), you must, after consulting with the MRO, direct the employee 
to obtain, within five days, an evaluation from a licensed physician, 
acceptable to the MRO, who has expertise in the medical issues raised by 
the employee's failure to provide a urine (see paragraph (b)(1) of this 
section) or oral fluid (see paragraph (b)(2) of this section) sufficient 
specimen, but not both. The evaluation and MRO determination required by 
this section only applies to the oral fluid or the urine insufficient 
specimen that was the final methodology at the collection site. (The MRO 
may perform this evaluation if the MRO has appropriate expertise.)
    (1) As the MRO, if another physician will perform the evaluation, 
you must provide the other physician with the following information and 
instructions:
    (i) That the employee was required to take a DOT drug test, but was 
unable to provide a sufficient amount of specimen to complete the test;
    (ii) The consequences of the appropriate DOT agency regulation for 
refusing to take the required drug test;
    (iii) That the referral physician must agree to follow the 
requirements of paragraphs (d) through (g) of this section.
    (2) [Reserved]
    (d) As the referral physician conducting this evaluation, you must 
recommend that the MRO make one of the following determinations:
    (1) A medical condition has, or with a high degree of probability 
could have, precluded the employee from providing a sufficient amount of 
specimen. As the MRO, if you accept this recommendation, you must:
    (i) Check ``Test Cancelled'' (Step 6) on the CCF; and
    (ii) Sign and date the CCF.
    (2) There is not an adequate basis for determining that a medical 
condition has, or with a high degree of probability could have, 
precluded the employee from providing a sufficient amount of specimen. 
As the MRO, if you accept this recommendation, you must:
    (i) Check the ``Refusal to Test'' box and ``Other'' box in Step 6 on 
Copy 2 of the CCF and note the reason next to the ``Other'' box and on 
the ``Remarks'' lines, as needed.
    (ii) Sign and date the CCF.
    (e) For purposes of this paragraph, a medical condition includes an 
ascertainable physiological condition (e.g., a urinary system 
dysfunction in the case of a urine test or autoimmune disorder in the 
case of an oral fluid test), or a medically documented pre-existing 
psychological disorder, but does not include unsupported assertions of 
``situational anxiety'' or dehydration.
    (f) As the referral physician making the evaluation, after 
completing your evaluation, you must provide a written statement of your 
recommendations and the basis for them to the MRO. You must not include 
in this statement detailed information on the employee's medical 
condition beyond what is necessary to explain your conclusion.
    (g) If, as the referral physician making this evaluation in the case 
of a pre-employment, return-to-duty, or follow-up test, you determine 
that the employee's medical condition is a serious and permanent or 
long-term disability that is highly likely to prevent the employee from 
providing a sufficient amount of specimen for a very long or indefinite 
period of time, you must set forth your determination and the reasons 
for it in your written statement to the MRO. As the MRO, upon receiving

[[Page 646]]

such a report, you must follow the requirements of Sec.  40.195, where 
applicable.
    (h) As the MRO, you must seriously consider and assess the referral 
physician's recommendations in making your determination about whether 
the employee has a medical condition that has, or with a high degree of 
probability could have, precluded the employee from providing a 
sufficient amount of specimen. You must report your determination to the 
DER in writing as soon as you make it.
    (i) As the employer, when you receive a report from the MRO 
indicating that a test is cancelled as provided in paragraph (d)(1) of 
this section, you take no further action with respect to the employee. 
If the test reason was 'random', the employee remains in the random 
testing pool.

[88 FR 27647, May 2, 2023]



Sec.  40.195  What happens when an individual is unable to provide a
sufficient amount of specimen for a pre-employment, follow-up, or 
return-to-duty test because of a permanent or long-term medical condition?

    (a) This section concerns a situation in which an employee has a 
medical condition that precludes him or her from providing a sufficient 
specimen for a pre-employment follow-up or return-to-duty test and the 
condition involves a permanent or long-term disability. As the MRO in 
this situation, you must do the following:
    (1) You must determine if there is clinical evidence that the 
individual is an illicit drug user. You must make this determination by 
personally conducting, or causing to be conducted, a medical evaluation 
and through consultation with the employee's physician and/or the 
physician who conducted the evaluation under Sec.  40.193(d).
    (2) If you do not personally conduct the medical evaluation, you 
must ensure that one is conducted by a licensed physician acceptable to 
you.
    (3) For purposes of this section, the MRO or the physician 
conducting the evaluation may conduct an alternative test (e.g., blood) 
as part of the medically appropriate procedures in determining clinical 
evidence of drug use.
    (b) If the medical evaluation reveals no clinical evidence of drug 
use, as the MRO, you must report the result to the employer as a 
negative test with written notations regarding results of both the 
evaluation conducted under Sec.  40.193(d) and any further medical 
examination. This report must state the basis for the determination that 
a permanent or long-term medical condition exists, making provision of a 
sufficient urine specimen impossible, and for the determination that no 
signs and symptoms of drug use exist.
    (1) Check ``Negative'' (Step 6) on the CCF.
    (2) Sign and date the CCF.
    (c) If the medical evaluation reveals clinical evidence of drug use, 
as the MRO, you must report the result to the employer as a cancelled 
test with written notations regarding results of both the evaluation 
conducted under Sec.  40.193(d) and any further medical examination. 
This report must state that a permanent or long-term medical condition 
exists, making provision of a sufficient urine specimen impossible, and 
state the reason for the determination that signs and symptoms of drug 
use exist. Because this is a cancelled test, it does not serve the 
purposes of a negative test (i.e., the employer is not authorized to 
allow the employee to begin or resume performing safety-sensitive 
functions, because a negative test is needed for that purpose).
    (d) For purposes of this section, permanent or long-term medical 
conditions are those physiological, anatomic, or psychological 
abnormalities documented as being present prior to the attempted 
collection, and considered not amenable to correction or cure for an 
extended period of time, if ever.
    (1) Examples would include destruction (any cause) of the glomerular 
filtration system leading to renal failure; unrepaired traumatic 
disruption of the urinary tract; or a severe psychiatric disorder 
focused on genito-urinary matters.
    (2) Acute or temporary medical conditions, such as cystitis, 
urethritis or prostatitis, though they might interfere with collection 
for a limited period of time, cannot receive the same exceptional 
consideration as the permanent

[[Page 647]]

or long-term conditions discussed in paragraph (d)(1) of this section.

[65 FR 79526, Dec. 19, 2000, as amended at 66 FR 41953, Aug. 9, 2001]



Sec.  40.197  What happens when an employer receives a report of a 
dilute urine specimen?

    (a) As the employer, if the MRO informs you that a positive drug 
test was dilute, you simply treat the test as a verified positive test. 
You must not direct the employee to take another test based on the fact 
that the specimen was dilute.
    (b) As an employer, if the MRO informs you that a negative test was 
dilute, take the following action:
    (1) If the MRO directs you to conduct a recollection under direct 
observation (i.e., because the creatinine concentration of the specimen 
was equal to or greater than 2mg/dL, but less than or equal to 5 mg/dL 
(see Sec.  40.155(c)), you must do so immediately.
    (2) Otherwise (i.e., if the creatinine concentration of the dilute 
specimen is greater than 5 mg/dL), you may, but are not required to, 
direct the employee to take another test immediately.
    (i) Such recollections must not be collected under direct 
observation, unless there is another basis for use of direct observation 
(see Sec.  40.67 (b) and (c)).
    (ii) You must treat all employees the same for this purpose. For 
example, you must not retest some employees and not others. You may, 
however, establish different policies for different types of tests 
(e.g., conduct retests in pre-employment situations, but not in random 
test situations). You must inform your employees in advance of your 
decisions on these matters.
    (c) The following provisions apply to all tests you direct an 
employee to take under paragraph (b) of this section:
    (1) You must ensure that the employee is given the minimum possible 
advance notice that he or she must go to the collection site;
    (2) You must treat the result of the test you directed the employee 
to take under paragraph (b) of this section--and not a prior test--as 
the test result of record, on which you rely for purposes of this part;
    (3) If the result of the test you directed the employee to take 
under paragraph (b)(1) of this section is also negative and dilute, you 
are not permitted to make the employee take an additional test because 
the result was dilute.
    (4) If the result of the test you directed the employee to take 
under paragraph (b)(2) of this section is also negative and dilute, you 
are not permitted to make the employee take an additional test because 
the result was dilute. Provided, however, that if the MRO directs you to 
conduct a recollection under direct observation under paragraph (b)(1) 
of this section, you must immediately do so.
    (5) If the employee declines to take a test you directed him or her 
to take under paragraph (b) of this section, the employee has refused 
the test for purposes of this part and DOT agency regulations.

[68 FR 31626, May 28, 2003, as amended at 69 FR 64867, Nov. 9, 2004; 73 
FR 35974, June 25, 2008]



Sec.  40.199  What problems always cause a drug test to be cancelled?

    (a) As the MRO, when the laboratory discovers a ``fatal flaw'' 
during its processing of incoming specimens (see Sec.  40.83), the 
laboratory will report to you that the specimen has been ``Rejected for 
Testing'' (with the reason stated). You must always cancel such a test.
    (b) The following are ``fatal flaws'':
    (1) There is no CCF;
    (2) In cases where a specimen has been collected, there is no 
specimen submitted with the CCF;
    (3) There is no printed collector's name and no collector's 
signature;
    (4) Two separate collections are performed using one CCF;
    (5) The specimen ID numbers on the specimen bottle and the CCF do 
not match;
    (6) The specimen bottle seal is broken or shows evidence of 
tampering (and a split specimen cannot be re-designated, see Sec.  
40.83(h)); or
    (7) Because of leakage or other causes, there is an insufficient 
amount of specimen in the primary specimen bottle for analysis and the 
specimens cannot be re-designated (see Sec.  40.83(h)).

[[Page 648]]

    (8) For an oral fluid collection, the collector used an expired 
device at the time of collection.
    (9) For an oral fluid collection, the collector failed to enter the 
expiration date in Step 4 of the CCF and the laboratory confirmed that 
the device was expired.
    (c) You must report the result as provided in Sec.  40.161.

[65 FR 79526, Dec. 19, 2000, as amended at 82 FR 52245, Nov. 13, 2017; 
88 FR 27648, May 2, 2023]



Sec.  40.201  What problems always cause a drug test to be cancelled
and may result in a requirement for another collection?

    As the MRO, you must cancel a drug test when a laboratory reports 
that any of the following problems have occurred. You must inform the 
DER that the test was cancelled. You must also direct the DER to ensure 
that an additional collection occurs immediately, if required by the 
applicable procedures specified in paragraphs (a) through (e) of this 
section.
    (a) The laboratory reports an ``Invalid Result.'' You must follow 
applicable procedures in Sec.  40.159 (recollection under direct 
observation may be required).
    (b) The laboratory reports the result as ``Rejected for Testing.'' 
You must follow applicable procedures in Sec.  40.161 (a recollection 
may be required).
    (c) The laboratory reports that the split specimen failed to 
reconfirm all of the primary specimen results because the drug(s)/drug 
metabolite(s) were not detected; adulteration criteria were not met; 
and/or substitution criteria were not met. You must follow the 
applicable procedures in Sec.  40.187(b)--no recollection is required in 
this case, unless the split specimen creatinine concentration for a 
substituted primary specimen was greater than or equal to 2mg/dL but 
less than or equal to 5mg/ dL, or the primary specimen had an invalid 
result which was not reported to the DER. Both these cases require 
recollection under direct observation.
    (d) The laboratory reports that the split specimen failed to 
reconfirm all of the primary specimen results, and that the split 
specimen was invalid. You must follow the procedures in Sec.  
40.187(c)(1)--recollection under direct observation is required in this 
case.
    (e) The laboratory reports that the split specimen failed to 
reconfirm all of the primary specimen results because the split specimen 
was not available for testing or there was no split laboratory available 
to test the specimen. You must follow the applicable procedures in Sec.  
40.187(e)--recollection under direct observation is required in this 
case.
    (f) The examining physician has determined that there is an 
acceptable medical explanation of the employee's failure to provide a 
sufficient amount of specimen. You must follow applicable procedures in 
Sec.  40.193(d)(1) (no recollection is required in this case).

[65 FR 79526, Dec. 19, 2000, as amended at 73 FR 35974, June 25, 2008; 
88 FR 27648, May 2, 2023]



Sec.  40.203  What problems cause a drug test to be cancelled unless
they are corrected?

    (a) As the MRO, when a laboratory discovers a ``correctable flaw'' 
during its processing of incoming specimens (see Sec.  40.83), the 
laboratory will attempt to correct it. If the laboratory is unsuccessful 
in this attempt, it will report to you that the specimen has been 
``Rejected for Testing'' (with the reason stated).
    (b) The following is a ``correctable flaw'' that laboratories must 
attempt to correct: The collector's signature is omitted on the 
certification statement on the CCF.
    (c) As the MRO, when you discover a ``correctable flaw'' during your 
review of the CCF, you must cancel the test unless the flaw is 
corrected.
    (d) The following are correctable flaws that you must attempt to 
correct:
    (1) The employee's signature is omitted from the certification 
statement, unless the employee's failure or refusal to sign is noted on 
the ``Remarks'' line of the CCF.
    (2) The certifying scientist's signature is omitted on Copy 1 of the 
CCF for a positive, adulterated, substituted, or invalid test result.
    (3) The collector uses a non-Federal form or an expired CCF for the 
test.

[[Page 649]]

This flaw may be corrected through the procedure set forth in Sec.  
40.205(b)(2), provided that the collection testing process has been 
conducted in accordance with the procedures in this part in an HHS-
certified laboratory.

[65 FR 79526, Dec. 19, 2000, as amended at 66 FR 41954, Aug. 9, 2001; 75 
FR 59108, Sept. 27, 2010; 76 FR 59578, Sept. 27, 2011; 82 FR 52246, Nov. 
13, 2017]



Sec.  40.205  How are drug test problems corrected?

    (a) As a collector, you have the responsibility of trying to 
successfully complete a collection procedure for each employee.
    (1) If, during or shortly after the collection process, you become 
aware of any event that prevents the completion of a valid test or 
collection (e.g., a procedural or paperwork error), you must try to 
correct the problem promptly, if doing so is practicable. You may 
conduct another collection as part of this effort.
    (2) If another collection is necessary, you must begin the new 
collection procedure as soon as possible, using a new CCF and a new 
collection kit.
    (b) If, as a collector, laboratory, MRO, employer, or other person 
implementing these drug testing regulations, you become aware of a 
problem that can be corrected (see Sec.  40.203), but which has not 
already been corrected under paragraph (a) of this section, you must 
take all practicable action to correct the problem so that the test is 
not cancelled.
    (1) If the problem resulted from the omission of required 
information, you must, as the person responsible for providing that 
information, supply in writing the missing information and a statement 
that it is true and accurate. For example, suppose you are a collector, 
and you forgot to make a notation on the ``Remarks'' line of the CCF 
that the employee did not sign the certification. You would, when the 
problem is called to your attention, supply a signed statement that the 
employee failed or refused to sign the certification and that your 
statement is true and accurate. You must supply this information on the 
same business day on which you are notified of the problem, transmitting 
it by fax or courier.
    (2) If the problem is the use of a non-Federal form or an expired 
Federal form, you must provide a signed statement (i.e., a memorandum 
for the record). It must state that the incorrect form contains all the 
information needed for a valid DOT drug test, and that the incorrect 
form was used inadvertently or as the only means of conducting a test, 
in circumstances beyond your control. The statement must also list the 
steps you have taken to prevent future use of non-Federal forms or 
expired Federal forms for DOT tests. For this flaw to be corrected, the 
test of the specimen must have occurred at a HHS-certified laboratory 
where it was tested consistent with the requirements of this part. You 
must supply this information on the same business day on which you are 
notified of the problem, transmitting it by fax or courier.
    (3) You must maintain the written documentation of a correction with 
the CCF.
    (4) You must mark the CCF in such a way (e.g., stamp noting 
correction) as to make it obvious on the face of the CCF that you 
corrected the flaw.
    (c) If the correction does not take place, as the MRO you must 
cancel the test.

[65 FR 79526, Dec. 19, 2000, as amended at 66 FR 41954, Aug. 9, 2001]



Sec.  40.207  What is the effect of a cancelled drug test?

    (a) A cancelled drug test is neither positive nor negative.
    (1) As an employer, you must not attach to a cancelled test the 
consequences of a positive test or other violation of a DOT drug testing 
regulation (e.g., removal from a safety-sensitive position).
    (2) As an employer, you must not use a cancelled test for the 
purposes of a negative test to authorize the employee to perform safety-
sensitive functions (i.e., in the case of a pre-employment, return-to-
duty, or follow-up test).
    (3) However, as an employer, you must not direct a recollection for 
an employee because a test has been cancelled, except in the situations 
cited in paragraph (a)(2) of this section or other

[[Page 650]]

provisions of this part that require another test to be conducted (e.g., 
Sec. Sec.  40.159(a)(5) and 40.187(b)(2), (c)(1), and (e).
    (b) A cancelled test does not count toward compliance with DOT 
requirements (e.g., being applied toward the number of tests needed to 
meet the employer's minimum random testing rate).
    (c) A cancelled DOT test does not provide a valid basis for an 
employer to conduct a non-DOT test (i.e., a test under company 
authority).
    (d) If a test is cancelled for a correctible flaw (i.e., Sec.  
40.203 or Sec.  40.205), only the MRO who cancelled the test can reverse 
the cancellation and must do so within 60 days of the cancellation. 
After 60 days, the MRO who cancelled the test cannot reverse the 
cancellation without the permission of ODAPC. For example, if an MRO 
cancels a test because the MRO did not receive a copy of the CCF, but 
later receives a copy of the CCF, the MRO may reverse the decision to 
cancel the test within 60 days. After 60 days, the MRO must contact 
ODAPC for permission to reverse the cancellation. An MRO must not 
reverse the cancellation of a test that the laboratory has reported as 
rejected for testing, as described in Sec.  40.83(g). A laboratory is 
not authorized to reverse a cancellation due to a fatal flaw, as 
described in Sec.  40.199.

[65 FR 79526, Dec. 19, 2000, as amended at 73 FR 35975, June 25, 2008; 
88 FR 27648, May 2, 2023]



Sec.  40.208  What problems require corrective action but do not result
in the cancellation of a test?

    (a) If, as a laboratory, collector, employer, or other person 
implementing the DOT drug testing program, you become aware that any of 
the following omissions listed in paragraphs (a)(1) through (3) of this 
section occurred, you must take corrective action, including securing a 
memorandum for the record explaining the problem and taking appropriate 
action to ensure the problem does not recur:
    (1) For a urine collection, the specimen temperature on the CCF was 
not checked and the ``Remarks'' line did not contain an entry regarding 
the temperature being out of range; or
    (2) For an oral fluid collection, the collector failed to check the 
box in Step 2 of the CCF that indicates ``Each Device was Within 
Expiration Date'' but the collector entered the ``Split Specimen Device 
Expiration Date'' in Step 4 of the CCF.
    (3) For an oral fluid collection, the collector erred by entering 
the expiration date as the ``Primary/Single Specimen Device Expiration 
Date'' instead of entering the date as the ``Split Specimen Device 
Expiration Date'' in Step 4 of the CCF.
    (b) The errors listed in paragraph (a) of this section do not result 
in the cancellation of the test.
    (c) As an employer or service agent, the errors listed in paragraph 
(a) of this section, even though not sufficient to cancel a drug test 
result, may subject you to enforcement action under DOT agency 
regulations or subpart R of this part.

[88 FR 27649, May 2, 2023]



Sec.  40.209  What procedural problems do not result in the cancellation
of a test and do not require correction?

    (a) As a collector, laboratory, MRO, employer or other person 
administering the drug testing process, you must document any errors in 
the testing process of which you become aware, even if they are not 
considered problems that will cause a test to be cancelled as listed in 
this subpart. Decisions about the ultimate impact of these errors will 
be determined by other administrative or legal proceedings, subject to 
the limitations of paragraph (b) of this section.
    (b) No person concerned with the testing process may declare a test 
cancelled based on an error that does not have a significant adverse 
effect on the right of the employee to have a fair and accurate test. 
Matters that do not result in the cancellation of a test include, but 
are not limited to, the following:
    (1) A minor administrative mistake (e.g., the omission of the 
employee's middle initial, a transposition of numbers in the employee's 
SSN or Employee ID No., the omission of the DOT Agency in Step 1-D of 
the CCF.)
    (2) An error that does not affect employee protections under this 
part (e.g.,

[[Page 651]]

the collector's failure to add bluing agent to the toilet bowl, which 
adversely affects only the ability of the collector to detect tampering 
with the specimen by the employee);
    (3) The collection of a specimen by a collector who is required to 
have been trained (see Sec.  40.33 or 40.35), but who has not met this 
requirement;
    (4) A delay in the collection process (see Sec.  40.61(a));
    (5) Verification of a test result by an MRO who has the basic 
credentials to be qualified as an MRO (see Sec.  40.121(a) through (b)) 
but who has not met training and/or documentation requirements (see 
Sec.  40.121(c) through (e));
    (6) The failure to directly observe or monitor a collection that the 
rule requires or permits to be directly observed or monitored, or the 
unauthorized use of direct observation or monitoring for a collection;
    (7) The fact that a test was conducted in a facility that does not 
meet the requirements of Sec.  40.42;
    (8) If the specific name of the courier on the CCF is omitted or 
erroneous;
    (9) Personal identifying information is inadvertently contained on 
the CCF (e.g., the employee signs his or her name on Copy 1); or
    (10) Claims that the employee was improperly selected for testing.
    (11) The failure to use a new CCF for a second collection after an 
insufficient specimen was conducted under a different methodology (e.g., 
failing to use a new CCF for an oral fluid test after an insufficient 
quantity of urine was produced on a urine test.)
    (c) As an employer or service agent, these types of errors, even 
though not sufficient to cancel a drug test result, may subject you to 
enforcement action under DOT agency regulations or action under Subpart 
R of this part.

[65 FR 79526, Dec. 19, 2000, as amended at 66 FR 41954, Aug. 9, 2001; 75 
FR 59108, Sept. 27, 2010; 88 FR 27649, May 2, 2023]



Sec.  40.210  What kinds of drug tests are permitted under the
regulations?

    Both urine and oral fluid specimens are authorized for collection 
and testing under this part. An employer can use one or the other, but 
not both at the beginning of the testing event. For example, if an 
employee is sent for a test, either a urine or oral fluid specimen can 
be collected, but not both simultaneously. However, if there is a 
problem in the collection that necessitates a second collection (e.g., 
insufficient quantity of urine, temperature out of range, or 
insufficient saliva), then a different specimen type could be chosen by 
the employer (i.e., through a standing order or a discussion with the 
collector) or its service agent (i.e., if there is no standing order and 
the service agent cannot contact the DER) to complete the collection 
process for the testing event. Only urine and oral fluid specimens 
screened and confirmed at HHS-certified laboratories (see Sec.  40.81) 
are allowed for drug testing under this part. Point-of-collection (POC) 
urine, POC oral fluid drug testing, hair testing, or instant tests are 
not authorized.

[88 FR 27649, May 2, 2023]



                   Subpart J_Alcohol Testing Personnel



Sec.  40.211  Who conducts DOT alcohol tests?

    (a) Screening test technicians (STTs) and breath alcohol technicians 
(BATs) meeting their respective requirements of this subpart are the 
only people authorized to conduct DOT alcohol tests.
    (b) An STT can conduct only alcohol screening tests, but a BAT can 
conduct alcohol screening and confirmation tests.
    (c) As a BAT- or STT-qualified immediate supervisor of a particular 
employee, you may not act as the STT or BAT when that employee is 
tested, unless no other STT or BAT is available and DOT agency 
regulations do not prohibit you from doing so.



Sec.  40.213  What training requirements must STTs and BATs meet?

    To be permitted to act as a BAT or STT in the DOT alcohol testing 
program, you must meet each of the requirements of this section:
    (a) You must be knowledgeable about the alcohol testing procedures 
in this part and the current DOT guidance. Procedures and guidance are 
available from ODAPC (Department of Transportation, 1200 New Jersey 
Avenue SE., Washington, DC 20590, 202-366-3784, or

[[Page 652]]

on the ODAPC Web site, http://www.transportation.gov/odapc). You must 
keep current on any changes to these materials. You must subscribe to 
the ODAPC list-serve at (https://www.transportation.gov/odapc/get-odapc-
email-updates).
    (b) Qualification training. You must receive qualification training 
meeting the requirements of this paragraph (b).
    (1) Qualification training must be in accordance with the DOT Model 
BAT or STT Course, as applicable. The DOT Model Courses are available 
from ODAPC (Department of Transportation, 1200 New Jersey Avenue, SE., 
Washington DC, 20590, 202-366-3784, or on the ODAPC web site, http://
www.dot.gov/ost/dapc). The training can also be provided using a course 
of instruction equivalent to the DOT Model Courses. On request, ODAPC 
will review BAT and STT instruction courses for equivalency.
    (2) Qualification training must include training to proficiency in 
using the alcohol testing procedures of this part and in the operation 
of the particular alcohol testing device(s) (i.e., the ASD(s) or EBT(s)) 
you will be using.
    (3) The training must emphasize that you are responsible for 
maintaining the integrity of the testing process, ensuring the privacy 
of employees being tested, and avoiding conduct or statements that could 
be viewed as offensive or inappropriate.
    (4) The instructor must be an individual who has demonstrated 
necessary knowledge, skills, and abilities by regularly conducting DOT 
alcohol tests as an STT or BAT, as applicable, for a period of at least 
a year, who has conducted STT or BAT training, as applicable, under this 
part for a year, or who has successfully completed a ``train the 
trainer'' course.
    (c) Initial Proficiency Demonstration. Following your completion of 
qualification training under paragraph (b) of this section, you must 
demonstrate proficiency in alcohol testing under this part by completing 
seven consecutive error-free mock tests (BATs) or five consecutive 
error-free tests (STTs).
    (1) Another person must monitor and evaluate your performance, in 
person or by a means that provides real-time observation and interaction 
between the instructor and trainee, and attest in writing that the mock 
collections are ``error-free.'' This person must be an individual who 
meets the requirements of paragraph (b)(4) of this section.
    (2) These tests must use the alcohol testing devices (e.g., EBT(s) 
or ASD(s)) that you will use as a BAT or STT.
    (3) If you are an STT who will be using an ASD that indicates 
readings by changes, contrasts, or other readings in color, you must 
demonstrate as part of the mock test that you are able to discern 
changes, contrasts, or readings correctly.
    (d) You must meet the requirements of paragraphs (b) and (c) of this 
section before you begin to perform STT or BAT functions.
    (e) Refresher training. No less frequently than every five years 
from the date on which you satisfactorily complete the requirements of 
paragraphs (b) and (c) of this section, you must complete refresher 
training that meets all the requirements of paragraphs (b) and (c) of 
this section.
    (f) Error Correction Training. If you make a mistake in the alcohol 
testing process that causes a test to be cancelled (i.e., a fatal or 
uncorrected flaw), you must undergo error correction training. This 
training must occur within 30 days of the date you are notified of the 
error that led to the need for retraining.
    (1) Error correction training must be provided and your proficiency 
documented in writing by a person who meets the requirements of 
paragraph (b)(4) of this section.
    (2) Error correction training is required to cover only the subject 
matter area(s) in which the error that caused the test to be cancelled 
occurred.
    (3) As part of the error correction training, you must demonstrate 
your proficiency in the alcohol testing procedures of this part by 
completing three consecutive error-free mock tests. The mock tests must 
include one uneventful scenario and two scenarios related to the area(s) 
in which your error(s) occurred. The person providing the training must 
monitor and evaluate your performance and attest in

[[Page 653]]

writing that the mock tests were error-free.
    (g) Documentation. You must maintain documentation showing that you 
currently meet all requirements of this section. You must provide this 
documentation on request to DOT agency representatives and to employers 
and C/TPAs who are negotiating to use your services.
    (h) Other persons who may serve as BATs or STTs. (1) Anyone meeting 
the requirements of this section to be a BAT may act as an STT, provided 
that the individual has demonstrated initial proficiency in the 
operation of the ASD that he or she is using, as provided in paragraph 
(c) of this section.
    (2) Law enforcement officers who have been certified by state or 
local governments to conduct breath alcohol testing are deemed to be 
qualified as BATs. They are not required to also complete the training 
requirements of this section in order to act as BATs. In order for a 
test conducted by such an officer to be accepted under DOT alcohol 
testing requirements, the officer must have been certified by a state or 
local government to use the EBT or ASD that was used for the test.

[65 FR 79526, Dec. 19, 2000, as amended at 66 FR 41954, Aug. 9, 2001; 75 
FR 5244, Feb. 2, 2010; 82 FR 52246, Nov. 13, 2017]



Sec.  40.215  What information about the DER do employers have to provide
to BATs and STTs?

    As an employer, you must provide to the STTs and BATs the name and 
telephone number of the appropriate DER (and C/TPA, where applicable) to 
contact about any problems or issues that may arise during the testing 
process.



Sec.  40.217  Where is other information on the role of STTs and BATs
found in this regulation?

    You can find other information on the role and functions of STTs and 
BATs in the following sections of this part:

Sec.  40.3--Definitions.
Sec.  40.223--Responsibility for supervising employees being tested.
Sec. Sec.  40.225-40.227--Use of the alcohol testing form.
Sec. Sec.  40.241-40.245--Screening test procedures with ASDs and EBTs.
Sec. Sec.  40.251-40.255--Confirmation test procedures.
Sec.  40.261--Refusals to test.
Sec. Sec.  40.263-40.265--Insufficient saliva or breath.
Sec.  40.267--Problems requiring cancellation of tests.
Sec. Sec.  40.269-40.271--Correcting problems in tests.



 Subpart K_Testing Sites, Forms, Equipment and Supplies Used in Alcohol 
                                 Testing



Sec.  40.221  Where does an alcohol test take place?

    (a) A DOT alcohol test must take place at an alcohol testing site 
meeting the requirements of this section.
    (b) If you are operating an alcohol testing site, you must ensure 
that it meets the security requirements of Sec.  40.223.
    (c) If you are operating an alcohol testing site, you must ensure 
that it provides visual and aural privacy to the employee being tested, 
sufficient to prevent unauthorized persons from seeing or hearing test 
results.
    (d) If you are operating an alcohol testing site, you must ensure 
that it has all needed personnel, materials, equipment, and facilities 
to provide for the collection and analysis of breath and/or saliva 
samples, and a suitable clean surface for writing.
    (e) If an alcohol testing site fully meeting all the visual and 
aural privacy requirements of paragraph (c) is not readily available, 
this part allows a reasonable suspicion or post-accident test to be 
conducted at a site that partially meets these requirements. In this 
case, the site must afford visual and aural privacy to the employee to 
the greatest extent practicable.
    (f) An alcohol testing site can be in a medical facility, a mobile 
facility (e.g., a van), a dedicated collection facility, or any other 
location meeting the requirements of this section.



Sec.  40.223  What steps must be taken to protect the security of
alcohol testing sites?

    (a) If you are a BAT, STT, or other person operating an alcohol 
testing site, you must prevent unauthorized personnel from entering the 
testing site.
    (1) The only people you are to treat as authorized persons are 
employees

[[Page 654]]

being tested, BATs, STTs, and other alcohol testing site workers, DERs, 
employee representatives authorized by the employer (e.g., on the basis 
of employer policy or labor-management agreement), and DOT agency 
representatives.
    (2) You must ensure that all persons are under the supervision of a 
BAT or STT at all times when permitted into the site.
    (3) You may remove any person who obstructs, interferes with, or 
causes unnecessary delay in the testing process.
    (b) As the BAT or STT, you must not allow any person other than you, 
the employee, or a DOT agency representative to actually witness the 
testing process (see Sec. Sec.  40.241-40.255).
    (c) If you are operating an alcohol testing site, you must ensure 
that when an EBT or ASD is not being used for testing, you store it in a 
secure place.
    (d) If you are operating an alcohol testing site, you must ensure 
that no one other than BATs or other employees of the site have access 
to the site when an EBT is unsecured.
    (e) As a BAT or STT, to avoid distraction that could compromise 
security, you are limited to conducting an alcohol test for only one 
employee at a time.
    (1) When an EBT screening test on an employee indicates an alcohol 
concentration of 0.02 or higher, and the same EBT will be used for the 
confirmation test, you are not allowed to use the EBT for a test on 
another employee before completing the confirmation test on the first 
employee.
    (2) As a BAT who will conduct both the screening and the 
confirmation test, you are to complete the entire screening and 
confirmation process on one employee before starting the screening 
process on another employee.
    (3) You are not allowed to leave the alcohol testing site while the 
testing process for a given employee is in progress, except to notify a 
supervisor or contact a DER for assistance in the case an employee or 
other person who obstructs, interferes with, or unnecessarily delays the 
testing process.



Sec.  40.225  What form is used for an alcohol test?

    (a) The DOT Alcohol Testing Form (ATF) must be used for every DOT 
alcohol test. The ATF must be a three-part carbonless manifold form. The 
ATF is found in appendix I to this part. You may view this form on the 
ODAPC web site (http://www.transportation.gov/odapc).
    (b) As an employer in the DOT alcohol testing program, you are not 
permitted to modify or revise the ATF except as follows:
    (1) You may include other information needed for billing purposes, 
outside the boundaries of the form.
    (2) You may use a ATF directly generated by an EBT which omits the 
space for affixing a separate printed result to the ATF, provided the 
EBT prints the result directly on the ATF.
    (3) You may use an ATF that has the employer's name, address, and 
telephone number preprinted. In addition, a C/TPA's name, address, and 
telephone number may be included, to assist with negative results.
    (4) You may use an ATF in which all pages are printed on white 
paper. You may modify the ATF by using colored paper, or have clearly 
discernable borders or designation statements on Copy 2 and Copy 3. When 
colors are used, they must be green for Copy 2 and blue for Copy 3.
    (5) As a BAT or STT, you may add, on the ``Remarks'' line of the 
ATF, the name of the DOT agency under whose authority the test occurred.
    (6) As a BAT or STT, you may use a ATF that has your name, address, 
and telephone number preprinted, but under no circumstances can your 
signature be preprinted.
    (c) As an employer, you may use an equivalent foreign-language 
version of the ATF approved by ODAPC. You may use such a non-English 
language form only in a situation where both the employee and BAT/STT 
understand and can use the form in that language.

[65 FR 79526, Dec. 19, 2000, as amended at 66 FR 41954, Aug. 9, 2001; 75 
FR 8529, Feb. 25, 2010; 75 FR 13009, Mar. 18, 2010; 82 FR 52246, Nov. 
13, 2017; 88 FR 27649, May 2, 2023]

[[Page 655]]



Sec.  40.227  May employers use the ATF for non-DOT tests, or non-DOT
forms for DOT tests?

    (a) No, as an employer, BAT, or STT, you are prohibited from using 
the ATF for non-DOT alcohol tests. You are also prohibited from using 
non-DOT forms for DOT alcohol tests. Doing either subjects you to 
enforcement action under DOT agency regulations.
    (b) If the STT or BAT, either by mistake, or as the only means to 
conduct a test under difficult circumstances (e.g., post-accident test 
with insufficient time to obtain the ATF), uses a non-DOT form for a DOT 
test, the use of a non-DOT form does not, in and of itself, require the 
employer or service agent to cancel the test. However, in order for the 
test to be considered valid, a signed statement must be obtained from 
the STT or BAT in accordance with Sec.  40.271(b) .



Sec.  40.229  What devices are used to conduct alcohol screening tests?

    ASDs listed on ODAPC's Web page for ``Approved Screening Devices to 
Measure Alcohol in Bodily Fluids'' and EBTs listed on ODAPC's Web page 
for ``Approved Evidential Breath Measurement Devices'' are the only 
devices you are allowed to use to conduct alcohol screening tests under 
this part. You may use an ASD for DOT alcohol tests only if there are 
instructions for its use in this part. An ASD can be used only for 
screening tests for alcohol, and must not be used for confirmation 
tests.

[82 FR 52246, Nov. 13, 2017]



Sec.  40.231  What devices are used to conduct alcohol confirmation 
tests?

    (a) EBTs on ODAPC's Web page for ``Approved Evidential Breath 
Measurement Devices'' that meet the requirements of paragraph (b) of 
this section are the only devices you may use to conduct alcohol 
confirmation tests under this part.
    (b) To conduct a confirmation test, you must use an EBT that has the 
following capabilities:
    (1) Provides a printed triplicate result (or three consecutive 
identical copies of a result) of each breath test;
    (2) Assigns a unique number to each completed test, which the BAT 
and employee can read before each test and which is printed on each copy 
of the result;
    (3) Prints, on each copy of the result, the manufacturer's name for 
the device, its serial number, and the time of the test;
    (4) Distinguishes alcohol from acetone at the 0.02 alcohol 
concentration level;
    (5) Tests an air blank; and
    (6) Performs an external calibration check.

[65 FR 79526, Dec. 19, 2000, as amended at 82 FR 52246, Nov. 13, 2017]



Sec.  40.233  What are the requirements for proper use and care of EBTs?

    (a) As an EBT manufacturer, you must submit, for NHTSA approval, a 
quality assurance plan (QAP) for your EBT before ODAPC places the EBT on 
its Web page for ``Approved Evidential Breath Measurement Devices.''
    (1) Your QAP must specify the methods used to perform external 
calibration checks on the EBT, the tolerances within which the EBT is 
regarded as being in proper calibration, and the intervals at which 
these checks must be performed. In designating these intervals, your QAP 
must take into account factors like frequency of use, environmental 
conditions (e.g., temperature, humidity, altitude) and type of operation 
(e.g., stationary or mobile).
    (2) Your QAP must also specify the inspection, maintenance, and 
calibration requirements and intervals for the EBT.
    (b) As the manufacturer, you must include, with each EBT, 
instructions for its use and care consistent with the QAP.
    (c) As the user of the EBT (e.g., employer, service agent), you must 
do the following:
    (1) You must follow the manufacturer's instructions (see paragraph 
(b) of this section), including performance of external calibration 
checks at the intervals the instructions specify.
    (2) In conducting external calibration checks, you must use only 
calibration devices appearing on NHTSA's CPL for ``Calibrating Units for 
Breath Alcohol Tests.''
    (3) If an EBT fails an external check of calibration, you must take 
the EBT

[[Page 656]]

out of service. You may not use the EBT again for DOT alcohol testing 
until it is repaired and passes an external calibration check.
    (4) You must maintain records of the inspection, maintenance, and 
calibration of EBTs as provided in Sec.  40.333(a)(3).
    (5) You must ensure that inspection, maintenance, and calibration of 
the EBT are performed by its manufacturer or a maintenance 
representative certified either by the manufacturer or by a state health 
agency or other appropriate state agency.

[65 FR 79526, Dec. 19, 2000, as amended at 82 FR 52246, Nov. 13, 2017]



Sec.  40.235  What are the requirements for proper use and care of ASDs?

    (a) As an ASD manufacturer, you must submit, for NHTSA approval, a 
QAP for your ASD before NHTSA approves it and ODAPC places the device on 
its Web page for ``Approved Screening Devices to Measure Alcohol in 
Bodily Fluids''. Your QAP must specify the methods used for quality 
control checks, temperatures at which the ASD must be stored and used, 
the shelf life of the device, and environmental conditions (e.g., 
temperature, altitude, humidity) that may affect the ASD's performance.
    (b) As a manufacturer, you must include with each ASD instructions 
for its use and care consistent with the QAP. The instructions must 
include directions on the proper use of the ASD, and, where applicable 
the time within which the device must be read, and the manner in which 
the reading is made.
    (c) As the user of the ADS (e.g., employer, STT), you must follow 
the QAP instructions.
    (d) You are not permitted to use an ASD that does not pass the 
specified quality control checks or that has passed its expiration date.
    (e) As an employer, with respect to breath ASDs, you must also 
follow the device use and care requirements of Sec.  40.233 .

[65 FR 79526, Dec. 19, 2000, as amended at 82 FR 52246, Nov. 13, 2017]



                    Subpart L_Alcohol Screening Tests



Sec.  40.241  What are the first steps in any alcohol screening test?

    As the BAT or STT you will take the following steps to begin all 
alcohol screening tests, regardless of the type of testing device you 
are using:
    (a) When a specific time for an employee's test has been scheduled, 
or the collection site is at the employee's worksite, and the employee 
does not appear at the collection site at the scheduled time, contact 
the DER to determine the appropriate interval within which the DER has 
determined the employee is authorized to arrive. If the employee's 
arrival is delayed beyond that time, you must notify the DER that the 
employee has not reported for testing. In a situation where a C/TPA has 
notified an owner/operator or other individual employee to report for 
testing and the employee does not appear, the C/TPA must notify the 
employee that he or she has refused to test.
    (b) Ensure that, when the employee enters the alcohol testing site, 
you begin the alcohol testing process without undue delay. For example, 
you must not wait because the employee says he or she is not ready or 
because an authorized employer or employee representative is delayed in 
arriving.
    (1) If the employee is also going to take a DOT drug test, you must, 
to the greatest extent practicable, ensure that the alcohol test is 
completed before the urine collection process begins.
    (2) If the employee needs medical attention (e.g., an injured 
employee in an emergency medical facility who is required to have a 
post-accident test), do not delay this treatment to conduct a test.
    (c) Require the employee to provide positive identification. You 
must see a photo ID issued by the employer (other than in the case of an 
owner-operator or other self-employer individual) or a Federal, state, 
or local government (e.g., a driver's license). You may not accept faxes 
or photocopies of identification. Positive identification by an employer 
representative (not a co-worker or another employee being tested) is 
also acceptable. If the employee

[[Page 657]]

cannot produce positive identification, you must contact a DER to verify 
the identity of the employee.
    (d) If the employee asks, provide your identification to the 
employee. Your identification must include your name and your employer's 
name but is not required to include your picture, address, or telephone 
number.
    (e) Explain the testing procedure to the employee, including showing 
the employee the instructions on the back of the ATF.
    (f) Complete Step 1 of the ATF.
    (g) Direct the employee to complete Step 2 on the ATF and sign the 
certification. If the employee refuses to sign this certification, you 
must document this refusal on the ``Remarks'' line of the ATF and 
immediately notify the DER. This is a refusal to test.



Sec.  40.243  What is the procedure for an alcohol screening test using
an EBT or non-evidential breath ASD?

    As the BAT or STT, you must take the following steps:
    (a) Select, or allow the employee to select, an individually wrapped 
or sealed mouthpiece from the testing materials.
    (b) Open the individually wrapped or sealed mouthpiece in view of 
the employee and insert it into the device in accordance with the 
manufacturer's instructions.
    (c) Instruct the employee to blow steadily and forcefully into the 
mouthpiece for at least six seconds or until the device indicates that 
an adequate amount of breath has been obtained.
    (d) Show the employee the displayed test result.
    (e) If the device is one that prints the test number, testing device 
name and serial number, time, and result directly onto the ATF, you must 
check to ensure that the information has been printed correctly onto the 
ATF.
    (f) If the device is one that prints the test number, testing device 
name and serial number, time and result, but on a separate printout 
rather than directly onto the ATF, you must affix the printout of the 
information to the designated space on the ATF with tamper-evident tape 
or use a self-adhesive label that is tamper-evident.
    (g) If the device is one that does not print the test number, 
testing device name and serial number, time, and result, or it is a 
device not being used with a printer, you must record this information 
in Step 3 of the ATF.



Sec.  40.245  What is the procedure for an alcohol screening test using
a saliva ASD or a breath tube ASD?

    (a) As the STT or BAT, you must take the following steps when using 
the saliva ASD:
    (1) Check the expiration date on the device or on the package 
containing the device and show it to the employee. You may not use the 
device after its expiration date.
    (2) Open an individually wrapped or sealed package containing the 
device in the presence of the employee.
    (3) Offer the employee the opportunity to use the device. If the 
employee uses it, you must instruct the employee to insert it into his 
or her mouth and use it in a manner described by the device's 
manufacturer.
    (4) If the employee chooses not to use the device, or in all cases 
in which a new test is necessary because the device did not activate 
(see paragraph (a)(7) of this section), you must insert the device into 
the employee's mouth and gather saliva in the manner described by the 
device's manufacturer. You must wear single-use examination or similar 
gloves while doing so and change them following each test.
    (5) When the device is removed from the employee's mouth, you must 
follow the manufacturer's instructions regarding necessary next steps in 
ensuring that the device has activated.
    (6)(i) If you were unable to successfully follow the procedures of 
paragraphs (a)(3) through (a)(5) of this section (e.g., the device 
breaks, you drop the device on the floor), you must discard the device 
and conduct a new test using a new device.
    (ii) The new device you use must be one that has been under your 
control or that of the employee before the test.
    (iii) You must note on the ``Remarks'' line of the ATF the reason 
for the new test. (Note: You may continue using the same ATF with which 
you began the test.)

[[Page 658]]

    (iv) You must offer the employee the choice of using the device or 
having you use it unless the employee, in the opinion of the STT or BAT, 
was responsible (e.g., the employee dropped the device) for the new test 
needing to be conducted.
    (v) If you are unable to successfully follow the procedures of 
paragraphs (a)(3) through (a)(5) of this section on the new test, you 
must end the collection and put an explanation on the ``Remarks'' line 
of the ATF.
    (vi) You must then direct the employee to take a new test 
immediately, using an EBT for the screening test.
    (7) If you are able to successfully follow the procedures of 
paragraphs (a)(3)-(a)(5) of this section, but the device does not 
activate, you must discard the device and conduct a new test, in the 
same manner as provided in paragraph (a)(6) of this section. In this 
case, you must place the device into the employee's mouth to collect 
saliva for the new test.
    (8) You must read the result displayed on the device no sooner than 
the device's manufacturer instructs. In all cases the result displayed 
must be read within 15 minutes of the test. You must then show the 
device and it's reading to the employee and enter the result on the ATF.
    (9) You must never re-use devices, swabs, gloves or other materials 
used in saliva testing.
    (10) You must note the fact that you used a saliva ASD in Step 3 of 
the ATF.
    (b) As the STT or BAT, you must take the following steps when using 
the breath tube ASD:
    (1) Check the expiration date on the detector device and the 
electronic analyzer or on the package containing the device and the 
analyzer and show it to the employee. You must not use the device or the 
analyzer after their expiration date. You must not use an analyzer which 
is not specifically pre-calibrated for the device being used in the 
collection.
    (2) Remove the device from the package and secure an inflation bag 
onto the appropriate end of the device, as directed by the manufacturer 
on the device's instructions.
    (3) Break the tube's ampoule in the presence of the employee.
    (4) Offer the employee the opportunity to use the device. If the 
employee chooses to use (e.g. hold) the device, instruct the employee to 
blow forcefully and steadily into the blowing end of device until the 
inflation bag fills with air (approximately 12 seconds).
    (5) If the employee chooses not to hold the device, you must hold it 
and provide the use instructions in paragraph (b)(4) of this section.
    (6) When the employee completes the breath process, take the device 
from the employee (or if you were holding it, remove it from the 
employee's mouth), remove the inflation bag, and prepare the device to 
be read by the analyzer in accordance with the manufacturer's 
directions.
    (7)(i) If you were unable to successfully follow the procedures of 
paragraphs (b)(4) through (b)(6) of this section (e.g., the device 
breaks apart, the employee did not fill the inflation bag), you must 
discard the device and conduct a new test using a new one.
    (ii) The new device you use must be one that has been under your 
control or that of the employer before the test.
    (iii) You must note on the ``Remarks'' line of the ATF the reason 
for the new test. (Note: You may continue using the same ATF with which 
you began the test.)
    (iv) You must offer the employee the choice of holding the device or 
having you hold it unless the employee, in the your opinion, was 
responsible (e.g., the employee failed to fill the inflation bag) for 
the new test needing to be conducted.
    (v) If you are unable to successfully follow the procedures of 
paragraphs (b)(4) through (b)(6) of this section on the new test, you 
must end the collection and put an explanation on the ``Remarks'' line 
of the ATF.
    (vi) You must then direct the employee to take a new test 
immediately, using another type of ASD (e.g., saliva device) or an EBT.
    (8) If you were able to successfully follow the procedures of 
paragraphs (b)(4) through (b)(6) of this section and after having waited 
the required amount of time directed by the manufacturer for the 
detector device to incubate, you must place the device in

[[Page 659]]

the analyzer in accordance with the manufacturer's directions. The 
result must be read from the analyzer no earlier then the required 
incubation time of the device. In all cases, the result must be read 
within 15 minutes of the test.
    (9) You must follow the manufacturer's instructions for determining 
the result of the test. You must show the analyzer result to the 
employee and record the result on Step 3 of the ATF.
    (10) You must never re-use detector devices or any gloves used in 
breath tube testing. The inflation bag must be voided of air following 
removal from a device. Inflation bags and electronic analyzers may be 
re-used but only in accordance with the manufacturer's directions.
    (11) You must note the fact that you used a breath tube device in 
Step 3 of the ATF.

[67 FR 61522, Oct. 1, 2002, as amended at 72 FR 1299, Jan. 11, 2007]



Sec.  40.247  What procedures does the BAT or STT follow after a
screening test result?

    (a) If the test result is an alcohol concentration of less than 
0.02, as the BAT or STT, you must do the following:
    (1) Sign and date Step 3 of the ATF; and
    (2) Transmit the result to the DER in a confidential manner, as 
provided in Sec.  40.255 .
    (b) If the test result is an alcohol concentration of 0.02 or 
higher, as the BAT or STT, you must direct the employee to take a 
confirmation test.
    (1) If you are the BAT who will conduct the confirmation test, you 
must then conduct the test using the procedures beginning at Sec.  
40.251 .
    (2) If you are not the BAT who will conduct the confirmation test, 
direct the employee to take a confirmation test, sign and date Step 3 of 
the ATF, and give the employee Copy 2 of the ATF.
    (3) If the confirmation test will be performed at a different site 
from the screening test, you must take the following additional steps:
    (i) Advise the employee not to eat, drink, put anything (e.g., 
cigarette, chewing gum) into his or her mouth, or belch;
    (ii) Tell the employee the reason for the waiting period required by 
Sec.  40.251(a) (i.e., to prevent an accumulation of mouth alcohol from 
leading to an artificially high reading);
    (iii) Explain that following your instructions concerning the 
waiting period is to the employee's benefit;
    (iv) Explain that the confirmation test will be conducted at the end 
of the waiting period, even if the instructions have not been followed;
    (v) Note on the ``Remarks'' line of the ATF that the waiting period 
instructions were provided;
    (vi) Instruct the person accompanying the employee to carry a copy 
of the ATF to the BAT who will perform the confirmation test; and
    (vii) Ensure that you or another BAT, STT, or employer 
representative observe the employee as he or she is transported to the 
confirmation testing site. You must direct the employee not to attempt 
to drive a motor vehicle to the confirmation testing site.
    (c) If the screening test is invalid, you must, as the BAT or STT, 
tell the employee the test is cancelled and note the problem on the 
``Remarks'' line of the ATF. If practicable, repeat the testing process 
(see Sec.  40.271).



                  Subpart M_Alcohol Confirmation Tests



Sec.  40.251  What are the first steps in an alcohol confirmation test?

    As the BAT for an alcohol confirmation test, you must follow these 
steps to begin the confirmation test process:
    (a) You must carry out a requirement for a waiting period before the 
confirmation test, by taking the following steps:
    (1) You must ensure that the waiting period lasts at least 15 
minutes, starting with the completion of the screening test. After the 
waiting period has elapsed, you should begin the confirmation test as 
soon as possible, but not more than 30 minutes after the completion of 
the screening test.
    (i) If the confirmation test is taking place at a different location 
from the screening test (see Sec.  40.247(b)(3)) the

[[Page 660]]

time of transit between sites counts toward the waiting period if the 
STT or BAT who conducted the screening test provided the waiting period 
instructions.
    (ii) If you cannot verify, through review of the ATF, that waiting 
period instructions were provided, then you must carry out the waiting 
period requirement.
    (iii) You or another BAT or STT, or an employer representative, must 
observe the employee during the waiting period.
    (2) Concerning the waiting period, you must tell the employee:
    (i) Not to eat, drink, put anything (e.g., cigarette, chewing gum) 
into his or her mouth, or belch;
    (ii) The reason for the waiting period (i.e., to prevent an 
accumulation of mouth alcohol from leading to an artificially high 
reading);
    (iii) That following your instructions concerning the waiting period 
is to the employee's benefit; and
    (iv) That the confirmation test will be conducted at the end of the 
waiting period, even if the instructions have not been followed.
    (3) If you become aware that the employee has not followed the 
instructions, you must note this on the ``Remarks'' line of the ATF.
    (b) If you did not conduct the screening test for the employee, you 
must require positive identification of the employee, explain the 
confirmation procedures, and use a new ATF. You must note on the 
``Remarks'' line of the ATF that a different BAT or STT conducted the 
screening test.
    (c) Complete Step 1 of the ATF.
    (d) Direct the employee to complete Step 2 on the ATF and sign the 
certification. If the employee refuses to sign this certification, you 
must document this refusal on the ``Remarks'' line of the ATF and 
immediately notify the DER. This is a refusal to test.
    (e) Even if more than 30 minutes have passed since the screening 
test result was obtained, you must begin the confirmation test 
procedures in Sec.  40.253, not another screening test.
    (f) You must note on the ``Remarks'' line of the ATF the time that 
elapsed between the two events, and if the confirmation test could not 
begin within 30 minutes of the screening test, the reason why.
    (g) Beginning the confirmation test procedures after the 30 minutes 
have elapsed does not invalidate the screening or confirmation tests, 
but it may constitute a regulatory violation subject to DOT agency 
sanction.



Sec.  40.253  What are the procedures for conducting an alcohol
confirmation test?

    As the BAT conducting an alcohol confirmation test, you must follow 
these steps in order to complete the confirmation test process:
    (a) In the presence of the employee, you must conduct an air blank 
on the EBT you are using before beginning the confirmation test and show 
the reading to the employee.
    (1) If the reading is 0.00, the test may proceed. If the reading is 
greater than 0.00, you must conduct another air blank.
    (2) If the reading on the second air blank is 0.00, the test may 
proceed. If the reading is greater than 0.00, you must take the EBT out 
of service.
    (3) If you take an EBT out of service for this reason, no one may 
use it for testing until the EBT is found to be within tolerance limits 
on an external check of calibration.
    (4) You must proceed with the test of the employee using another 
EBT, if one is available.
    (b) You must open a new individually wrapped or sealed mouthpiece in 
view of the employee and insert it into the device in accordance with 
the manufacturer's instructions.
    (c) You must ensure that you and the employee read the unique test 
number displayed on the EBT.
    (d) You must instruct the employee to blow steadily and forcefully 
into the mouthpiece for at least six seconds or until the device 
indicates that an adequate amount of breath has been obtained.
    (e) You must show the employee the result displayed on the EBT.
    (f) You must show the employee the result and unique test number 
that the EBT prints out either directly onto the ATF or onto a separate 
printout.
    (g) If the EBT provides a separate printout of the result, you must 
attach

[[Page 661]]

the printout to the designated space on the ATF with tamper-evident 
tape, or use a self-adhesive label that is tamper-evident.

[65 FR 79526, Dec. 19, 2000, as amended at 66 FR 41954, Aug. 9, 2001]



Sec.  40.255  What happens next after the alcohol confirmation test
result?

    (a) After the EBT has printed the result of an alcohol confirmation 
test, you must, as the BAT, take the following additional steps:
    (1) Sign and date Step 3 of the ATF.
    (2) If the alcohol confirmation test result is lower than 0.02, 
nothing further is required of the employee. As the BAT, you must sign 
and date Step 3 of the ATF.
    (3) If the alcohol confirmation test result is 0.02 or higher, 
direct the employee to sign and date Step 4 of the ATF. If the employee 
does not do so, you must note this on the ``Remarks'' line of the ATF. 
However, this is not considered a refusal to test.
    (4) If the test is invalid, tell the employee the test is cancelled 
and note the problem on the ``Remarks'' line of the ATF. If practicable, 
conduct a re-test. (see Sec.  40.271).
    (5) Immediately transmit the result directly to the DER in a 
confidential manner.
    (i) You may transmit the results using Copy 1 of the ATF, in person, 
by telephone, or by electronic means. In any case, you must immediately 
notify the DER of any result of 0.02 or greater by any means (e.g., 
telephone or secure fax machine) that ensures the result is immediately 
received by the DER. You must not transmit these results through C/TPAs 
or other service agents.
    (ii) If you do not make the initial transmission in writing, you 
must follow up the initial transmission with Copy 1 of the ATF.
    (b) As an employer, you must take the following steps with respect 
to the receipt and storage of alcohol test result information:
    (1) If you receive any test results that are not in writing (e.g., 
by telephone or electronic means), you must establish a mechanism to 
establish the identity of the BAT sending you the results.
    (2) You must store all test result information in a way that 
protects confidentiality.



                  Subpart N_Problems in Alcohol Testing



Sec.  40.261  What is a refusal to take an alcohol test, and what are
the consequences?

    (a) As an employee, you are considered to have refused to take an 
alcohol test if you:
    (1) Fail to appear for any test (except a pre-employment test) 
within a reasonable time, as determined by the employer, consistent with 
applicable DOT agency regulations, after being directed to do so by the 
employer. This includes the failure of an employee (including an owner-
operator) to appear for a test when called by a C/TPA (see Sec.  
40.241(a));
    (2) Fail to remain at the testing site until the testing process is 
complete. Provided that an employee who leaves the collection site 
before the testing process commences (see Sec.  40.243(a)) for a pre-
employment test is not deemed to have refused to test. The BAT or STT is 
not required to inform an employee that the failure to remain at the 
collection site is a refusal. If an employee leaves prior to the 
completion of the testing process, per Sec.  40.355(i) the employer must 
decide whether the employee's actions constitute a refusal;
    (3) Fail to provide an adequate amount of saliva or breath for any 
alcohol test required by this part or DOT agency regulations; Provided 
that an employee who does not provide an adequate amount of breath or 
saliva because he or she has left the testing site before the testing 
process commences (see Sec.  40.243(a)) for a pre-employment test is not 
deemed to have refused to test. The BAT or STT is not required to inform 
an employee that the failure to remain at the collection site is a 
refusal. If an employee leaves prior to the completion of the testing 
process, per Sec.  40.355(i) the employer must decide whether the 
employee's actions constitute a refusal;
    (4) Fail to provide a sufficient breath specimen, and the physician 
has determined, through a required medical evaluation, that there was no 
adequate

[[Page 662]]

medical explanation for the failure (see Sec.  40.265(c));
    (5) Fail to undergo a medical examination or evaluation, as directed 
by the employer as part of the insufficient breath procedures outlined 
at Sec.  40.265(c);
    (6) Fail to sign the certification at Step 2 of the ATF (see 
Sec. Sec.  40.241(g) and 40.251(d)); or
    (7) Fail to cooperate with any part of the testing process.
    (b) As an employee, if you refuse to take an alcohol test, you incur 
the same consequences specified under DOT agency regulations for a 
violation of those DOT agency regulations. The consequences specified 
under DOT agency regulations for a refusal cannot be overturned or set 
aside by an arbitration, grievance, State court or other non-Federal 
forum that adjudicates the personnel decisions the employer has taken 
against the employee.
    (c)(1) As a BAT or an STT, or as the physician evaluating a ``shy 
lung'' situation, when an employee refuses to test as provided in 
paragraph (a) of this section, you must terminate the portion of the 
testing process in which you are involved, document the refusal on the 
ATF (or in a separate document which you cause to be attached to the 
form), immediately notify the DER by any means (e.g., telephone or 
secure fax machine) that ensures the refusal notification is immediately 
received. You must make this notification directly to the DER (not using 
a C/TPA as an intermediary).
    (2) As the BAT or STT, you must note the actions that may constitute 
a refusal in the ``Remarks'' line (Step 3), and sign and date the ATF. 
The BAT or STT does not make the final decision about whether the 
employee's conduct constitutes a refusal to test; the employer has the 
sole responsibility to decide whether a refusal occurred, as stated in 
Sec.  40.355(i), the employer has a non-delegable duty to make the 
decision about whether the employee has refused to test.
    (d) As an employee, when you refuse to take a non-DOT test or to 
sign a non-DOT form, you have not refused to take a DOT test. There are 
no consequences under DOT agency regulations for such a refusal.

[65 FR 79526, Dec. 19, 2000, as amended at 66 FR 41954, Aug. 9, 2001; 88 
FR 27649, May 2, 2023]



Sec.  40.263  What happens when an employee is unable to provide a 
sufficient amount of saliva for an alcohol screening test?

    (a) As the STT, you must take the following steps if an employee is 
unable to provide sufficient saliva to complete a test on a saliva 
screening device (e.g., the employee does not provide sufficient saliva 
to activate the device).
    (1) You must conduct a new screening test using a new screening 
device.
    (2) If the employee refuses to make the attempt to complete the new 
test, you must discontinue testing, note the fact on the ``Remarks'' 
line of the ATF, and immediately notify the DER. This is a refusal to 
test.
    (3) If the employee has not provided a sufficient amount of saliva 
to complete the new test, you must note the fact on the ``Remarks'' line 
of the ATF and immediately notify the DER.
    (b) As the DER, when the STT informs you that the employee has not 
provided a sufficient amount of saliva (see paragraph (a)(3) of this 
section), you must immediately arrange to administer an alcohol test to 
the employee using an EBT or other breath testing device.



Sec.  40.265  What happens when an employee is unable to provide a sufficient
amount of breath for an alcohol test?

    (a) If an employee does not provide a sufficient amount of breath to 
permit a valid breath test, you must take the steps listed in this 
section.
    (b) As the BAT or STT, you must instruct the employee to attempt 
again to provide a sufficient amount of breath and about the proper way 
to do so.
    (1) If the employee refuses to make the attempt, you must 
discontinue the test, note the fact on the ``Remarks'' line of the ATF, 
and immediately notify the DER. This is a refusal to test.
    (2) If the employee again attempts and fails to provide a sufficient 
amount

[[Page 663]]

of breath, you may provide another opportunity to the employee to do so 
if you believe that there is a strong likelihood that it could result in 
providing a sufficient amount of breath.
    (3) When the employee's attempts under paragraph (b)(2) of this 
section have failed to produce a sufficient amount of breath, you must 
note the fact on the ``Remarks'' line of the ATF and immediately notify 
the DER.
    (4) If you are using an EBT that has the capability of operating 
manually, you may attempt to conduct the test in manual mode.
    (5) If you are qualified to use a saliva ASD and you are in the 
screening test stage, you may change to a saliva ASD only to complete 
the screening test.
    (c) As the employer, when the BAT or STT informs you that the 
employee has not provided a sufficient amount of breath, you must direct 
the employee to obtain, within five days, an evaluation from a licensed 
physician who is acceptable to you and who has expertise in the medical 
issues raised by the employee's failure to provide a sufficient 
specimen.
    (1) You are required to provide the physician who will conduct the 
evaluation with the following information and instructions:
    (i) That the employee was required to take a DOT breath alcohol 
test, but was unable to provide a sufficient amount of breath to 
complete the test;
    (ii) The consequences of the appropriate DOT agency regulation for 
refusing to take the required alcohol test;
    (iii) That the physician must provide you with a signed statement of 
his or her conclusions; and
    (iv) That the physician, in his or her reasonable medical judgment, 
must base those conclusions on one of the following determinations:
    (A) A medical condition has, or with a high degree of probability 
could have, precluded the employee from providing a sufficient amount of 
breath. The physician must not include in the signed statement detailed 
information on the employee's medical condition. In this case, the test 
is cancelled.
    (B) There is not an adequate basis for determining that a medical 
condition has, or with a high degree of probability could have, 
precluded the employee from providing a sufficient amount of breath. 
This constitutes a refusal to test.
    (C) For purposes of paragraphs (c)(1)(iv)(A) and (B) of this 
section, a medical condition includes an ascertainable physiological 
condition (e.g., a respiratory system dysfunction) or a medically 
documented pre-existing psychological disorder, but does not include 
unsupported assertions of ``situational anxiety'' or hyperventilation.
    (2) As the physician making the evaluation, after making your 
determination, you must provide a written statement of your conclusions 
and the basis for them to the DER directly (and not through a C/TPA 
acting as an itermediary). You must not include in this statement 
detailed information on the employee's medical condition beyond what is 
necessary to explain your conclusion.
    (3) Upon receipt of the report from the examining physician, as the 
DER you must immediately inform the employee and take appropriate action 
based upon your DOT agency regulations.



Sec.  40.267  What problems always cause an alcohol test to be cancelled?

    As an employer, a BAT, or an STT, you must cancel an alcohol test if 
any of the following problems occur. These are ``fatal flaws.'' You must 
inform the DER that the test was cancelled and must be treated as if the 
test never occurred. These problems are:
    (a) In the case of a screening test conducted on a saliva ASD or a 
breath tube ASD:
    (1) The STT or BAT reads the result either sooner than or later than 
the time allotted by the manufacturer and this Part (see Sec.  
40.245(a)(8) for the saliva ASD and Sec.  40.245(b)(8) for the breath 
tube ASD).
    (2) The saliva ASD does not activate (see Sec.  40.245(a)(7); or
    (3) The device is used for a test after the expiration date printed 
on the device or on its package (see Sec.  40.245(a)(1) for the saliva 
ASD and Sec.  40.245(b)(1) for the breath tube ASD).
    (4) The breath tube ASD is tested with an analyzer which has not 
been pre-calibrated for that device's specific lot (see Sec.  
40.245(b)(1)).

[[Page 664]]

    (b) In the case of a screening or confirmation test conducted on an 
EBT, the sequential test number or alcohol concentration displayed on 
the EBT is not the same as the sequential test number or alcohol 
concentration on the printed result (see Sec.  40.253(c), (e) and (f)).
    (c) In the case of a confirmation test:
    (1) The BAT conducts the confirmation test before the end of the 
minimum 15-minute waiting period (see Sec.  40.251(a)(1));
    (2) The BAT does not conduct an air blank before the confirmation 
test (see Sec.  40.253(a));
    (3) There is not a 0.00 result on the air blank conducted before the 
confirmation test (see Sec.  40.253(a)(1) and (2));
    (4) The EBT does not print the result (see Sec.  40.253(f)); or
    (5) The next external calibration check of the EBT produces a result 
that differs by more than the tolerance stated in the QAP from the known 
value of the test standard. In this case, every result of 0.02 or above 
obtained on the EBT since the last valid external calibration check is 
cancelled (see Sec.  40.233(a)(1) and (c)(3)).

[65 FR 79526, Dec. 19, 2000, as amended at 67 FR 61522, Oct. 1, 2002; 71 
FR 49384, Aug. 23, 2006; 72 FR 1299, Jan. 11, 2007]



Sec.  40.269  What problems cause an alcohol test to be cancelled unless
they are corrected?

    As a BAT or STT, or employer, you must cancel an alcohol test if any 
of the following problems occur, unless they are corrected. These are 
``correctable flaws.'' These problems are:
    (a) The BAT or STT does not sign the ATF (see Sec. Sec.  
40.247(a)(1) and 40.255(a)(1)).
    (b) The BAT or STT fails to note on the ``Remarks'' line of the ATF 
that the employee has not signed the ATF after the result is obtained 
(see Sec.  40.255(a)(3)).
    (c) The BAT or STT uses a non-DOT form for the test (see Sec.  
40.225(a)).

[65 FR 79526, Dec. 19, 2000, as amended at 71 FR 49384, Aug. 23, 2006]



Sec.  40.271  How are alcohol testing problems corrected?

    (a) As a BAT or STT, you have the responsibility of trying to 
complete successfully an alcohol test for each employee.
    (1) If, during or shortly after the testing process, you become 
aware of any event that will cause the test to be cancelled (see Sec.  
40.267), you must try to correct the problem promptly, if practicable. 
You may repeat the testing process as part of this effort.
    (2) If repeating the testing process is necessary, you must begin a 
new test as soon as possible. You must use a new ATF, a new sequential 
test number, and, if needed, a new ASD and/or a new EBT. It is 
permissible to use additional technical capabilities of the EBT (e.g., 
manual operation) if you have been trained to do so in accordance with 
Sec.  40.213(c) .
    (3) If repeating the testing process is necessary, you are not 
limited in the number of attempts to complete the test, provided that 
the employee is making a good faith effort to comply with the testing 
process.
    (4) If another testing device is not available for the new test at 
the testing site, you must immediately notify the DER and advise the DER 
that the test could not be completed. As the DER who receives this 
information, you must make all reasonable efforts to ensure that the 
test is conducted at another testing site as soon as possible.
    (b) If, as an STT, BAT, employer or other service agent 
administering the testing process, you become aware of a ``correctable 
flaw'' (see Sec.  40.269) that has not already been corrected, you must 
take all practicable action to correct the problem so that the test is 
not cancelled.
    (1) If the problem resulted from the omission of required 
information, you must, as the person responsible for providing that 
information, supply in writing the missing information and a signed 
statement that it is true and accurate. For example, suppose you are a 
BAT and you forgot to make a notation on the ``Remarks'' line of the ATF 
that the employee did not sign the certification. You would, when the 
problem is called to your attention, supply a signed statement that the 
employee failed or refused to sign the certification after the result 
was obtained, and that your signed statement is true and accurate.

[[Page 665]]

    (2) If the problem is the use of a non-DOT form, you must, as the 
person responsible for the use of the incorrect form, certify in writing 
that the incorrect form contains all the information needed for a valid 
DOT alcohol test. You must also provide a signed statement that the 
incorrect form was used inadvertently or as the only means of conducting 
a test, in circumstances beyond your control, and the steps you have 
taken to prevent future use of non-DOT forms for DOT tests. You must 
supply this information on the same business day on which you are 
notified of the problem, transmitting it by fax or courier.
    (c) If you cannot correct the problem, you must cancel the test.



Sec.  40.273  What is the effect of a cancelled alcohol test?

    (a) A cancelled alcohol test is neither positive nor negative.
    (1) As an employer, you must not attach to a cancelled test the 
consequences of a test result that is 0.02 or greater (e.g., removal 
from a safety-sensitive position).
    (2) As an employer, you must not use a cancelled test in a situation 
where an employee needs a test result that is below 0.02 (e.g., in the 
case of a return-to-duty or follow-up test to authorize the employee to 
perform safety-sensitive functions).
    (3) As an employer, you must not direct a recollection for an 
employee because a test has been cancelled, except in the situations 
cited in paragraph (a)(2) of this section or other provisions of this 
part.
    (b) A cancelled test does not count toward compliance with DOT 
requirements, such as a minimum random testing rate.
    (c) When a test must be cancelled, if you are the BAT, STT, or other 
person who determines that the cancellation is necessary, you must 
inform the affected DER within 48 hours of the cancellation.
    (d) A cancelled DOT test does not provide a valid basis for an 
employer to conduct a non-DOT test (i.e., a test under company 
authority).



Sec.  40.275  What is the effect of procedural problems that are not
sufficient to cancel an alcohol test?

    (a) As an STT, BAT, employer, or a service agent administering the 
testing process, you must document any errors in the testing process of 
which you become aware, even if they are not ``fatal flaws'' or 
``correctable flaws'' listed in this subpart. Decisions about the 
ultimate impact of these errors will be determined by administrative or 
legal proceedings, subject to the limitation of paragraph (b) of this 
section.
    (b) No person concerned with the testing process may declare a test 
cancelled based on a mistake in the process that does not have a 
significant adverse effect on the right of the employee to a fair and 
accurate test. For example, it is inconsistent with this part to cancel 
a test based on a minor administrative mistake (e.g., the omission of 
the employee's middle initial) or an error that does not affect employee 
protections under this part. Nor does the failure of an employee to sign 
in Step 4 of the ATF result in the cancellation of the test. Nor is a 
test to be cancelled on the basis of a claim by an employee that he or 
she was improperly selected for testing.
    (c) As an employer, these errors, even though not sufficient to 
cancel an alcohol test result, may subject you to enforcement action 
under DOT agency regulations.



Sec.  40.277  Are alcohol tests other than saliva or breath permitted 
under these regulations?

    No, other types of alcohol tests (e,g., blood and urine) are not 
authorized for testing done under this part. Only saliva or breath for 
screening tests and breath for confirmation tests using approved devices 
are permitted.



 Subpart O_Substance Abuse Professionals and the Return-to-Duty Process



Sec.  40.281  Who is qualified to act as a SAP?

    To be permitted to act as a SAP in the DOT drug and alcohol testing 
program, you must meet each of the requirements of this section:

[[Page 666]]

    (a) Credentials. You must have one of the following credentials:
    (1) You are a licensed physician (Doctor of Medicine or Osteopathy);
    (2) You are a licensed or certified social worker;
    (3) You are a licensed or certified psychologist;
    (4) You are a licensed or certified employee assistance 
professional;
    (5) You are a state-licensed or certified marriage and family 
therapist; or
    (6) You are a drug and alcohol counselor certified by an 
organization listed at https://www.transportation.gov/odapc/sap.
    (b) Basic knowledge. You must be knowledgeable in the following 
areas:
    (1) You must be knowledgeable about and have clinical experience in 
the diagnosis and treatment of alcohol and controlled substances-related 
disorders.
    (2) You must be knowledgeable about the SAP function as it relates 
to employer interests in safety-sensitive duties.
    (3) You must be knowledgeable about this part, the DOT agency 
regulations applicable to the employers for whom you evaluate employees, 
and the DOT SAP Guidelines. You must keep current on any changes to 
these materials. You must subscribe to the ODAPC list-serve at https://
www.transportation.gov/odapc/get-odapc-email-updates. DOT agency 
regulations, DOT SAP Guidelines, and other materials are available from 
ODAPC (Department of Transportation, 1200 New Jersey Avenue SE., 
Washington DC, 20590 (202-366-3784), or on the ODAPC Web site (http://
www.transportation.gov/odapc).
    (c) Qualification training. You must receive qualification training 
meeting the requirements of this paragraph (c).
    (1) Qualification training must provide instruction on the following 
subjects:
    (i) Background, rationale, and coverage of the Department's drug and 
alcohol testing program;
    (ii) 49 CFR Part 40 and DOT agency drug and alcohol testing rules;
    (iii) Key DOT drug testing requirements, including collections, 
laboratory testing, MRO review, and problems in drug testing;
    (iv) Key DOT alcohol testing requirements, including the testing 
process, the role of BATs and STTs, and problems in alcohol tests;
    (v) SAP qualifications and prohibitions;
    (vi) The role of the SAP in the return-to-duty process, including 
the initial employee evaluation, referrals for education and/or 
treatment, the follow-up evaluation, continuing treatment 
recommendations, and the follow-up testing plan;
    (vii) SAP consultation and communication with employers, MROs, and 
treatment providers;
    (viii) Reporting and recordkeeping requirements;
    (ix) Issues that SAPs confront in carrying out their duties under 
the program.
    (2) Following your completion of qualification training under 
paragraph (c)(1) of this section, you must satisfactorily complete an 
examination administered by a nationally-recognized professional or 
training organization. The examination must comprehensively cover all 
the elements of qualification training listed in paragraph (c)(1) of 
this section.
    (3) You must meet the requirements of paragraphs (a), (b), and (c) 
of this section before you begin to perform SAP functions.
    (d) Continuing education. During each three-year period from the 
date on which you satisfactorily complete the examination under 
paragraph (c)(2) of this section, you must complete continuing education 
consisting of at least 12 professional development hours (e.g., CEUs) 
relevant to performing SAP functions.
    (1) This continuing education must include material concerning new 
technologies, interpretations, recent guidance, rule changes, and other 
information about developments in SAP practice, pertaining to the DOT 
program, since the time you met the qualification training requirements 
of this section.
    (2) Your continuing education activities must include documentable 
assessment tools to assist you in determining whether you have 
adequately learned the material.

[[Page 667]]

    (e) Documentation. You must maintain documentation showing that you 
currently meet all requirements of this section. You must provide this 
documentation on request to DOT agency representatives and to employers 
and C/TPAs who are using or contemplating using your services.
    (f) Limitation. If you are an otherwise qualified SAP under this 
part, you must abide by the geographic limitations applicable to your 
credential when performing remote evaluations. You must not conduct an 
evaluation that exceeds your geographic limitations.

[65 FR 79526, Dec. 19, 2000, as amended at 69 FR 3022, Jan. 22, 2004; 71 
FR 49384; Aug. 23, 2006; 71 FR 55347, Sept. 22, 2006; 82 FR 52246, Nov. 
13, 2017; 88 FR 27649, May 2, 2023]



Sec.  40.283  How does a certification organization obtain recognition
for its members as SAPs?

    (a) If you represent a certification organization that wants DOT to 
authorize its certified drug and alcohol counselors to be added to Sec.  
40.281(a)(6), you may submit a written petition to DOT requesting a 
review of your petition for inclusion.
    (b) You must obtain the National Commission for Certifying Agencies 
(NCCA) accreditation before DOT will act on your petition.
    (c) You must also meet the minimum requirements of appendix G to 
this part before DOT will act on your petition.

[65 FR 79526, Dec. 19, 2000, as amended at 71 FR 49384, Aug. 23, 2006; 
88 FR 27650, May 2, 2023]



Sec.  40.285  When is a SAP evaluation required?

    (a) As an employee, when you have violated DOT drug and alcohol 
regulations, you cannot again perform any DOT safety-sensitive duties 
for any employer until and unless you complete the SAP evaluation, 
referral, and education/treatment process set forth in this subpart and 
in applicable DOT agency regulations. The first step in this process is 
a SAP evaluation.
    (b) For purposes of this subpart, a verified positive DOT drug test 
result, a DOT alcohol test with a result indicating an alcohol 
concentration of 0.04 or greater, a refusal to test (including by 
adulterating or substituting a specimen) or any other violation of the 
prohibition on the use of alcohol or drugs under a DOT agency regulation 
constitutes a DOT drug and alcohol regulation violation.

[65 FR 79526, Dec. 19, 2000, as amended at 88 FR 27650, May 2, 2023]



Sec.  40.287  What information is an employer required to provide 
concerning SAP services to an employee who has a DOT drug and alcohol
regulation violation?

    As an employer, you must provide to each employee (including an 
applicant or new employee) who violates a DOT drug and alcohol 
regulation a listing of SAPs readily available to the employee and 
acceptable to you, with names, addresses, and telephone numbers. You 
cannot charge the employee any fee for compiling or providing this list. 
You may provide this list yourself or through a C/TPA or other service 
agent.



Sec.  40.289  Are employers required to provide SAP and treatment services
to employees?

    (a) As an employer, you are not required to provide a SAP evaluation 
or any subsequent recommended education or treatment for an employee who 
has violated a DOT drug and alcohol regulation.
    (b) However, if you offer that employee an opportunity to return to 
a DOT safety-sensitive duty following a violation, you must, before the 
employee again performs that duty, ensure that the employee receives an 
evaluation by a SAP meeting the requirements of Sec.  40.281 and that 
the employee successfully complies with the SAP's evaluation 
recommendations.
    (c) Payment for SAP evaluations and services is left for employers 
and employees to decide and may be governed by existing management-labor 
agreements and health care benefits.



Sec.  40.291  What is the role of the SAP in the evaluation, referral,
and treatment process of an employee who has violated DOT agency drug and 
alcohol testing regulations?

    (a) As a SAP, you are charged with:

[[Page 668]]

    (1) Making a clinical assessment and evaluation to determine what 
assistance is needed by the employee to resolve problems associated with 
alcohol and/or drug use. At the SAP's discretion, this assessment or 
evaluation may be performed face-to-face in-person or remotely. If a SAP 
is not prohibited from using technology within the parameters of the 
SAP's State-issued license or other credential(s), a remote evaluation 
must be must be conducted in accordance with the following criteria:
    (i) The technology must permit real-time audio and visual 
interaction between the SAP and the employee; and
    (ii) The quality of the technology (e.g., speed of the internet 
connection and clarity of the video display) must be sufficient to allow 
the SAP to gather all the visual and audible information the SAP would 
otherwise gather in an in-person face-to-face interaction, while 
providing security to protect the confidentiality of the communications 
at the level expected by industry standards for remote substance abuse 
evaluations.
    (2) Referring the employee to an appropriate education and/or 
treatment program;
    (3) Conducting a follow-up evaluation to determine if the employee 
has actively participated in the education and/or treatment program and 
has demonstrated successful compliance with the initial assessment and 
evaluation recommendations. This assessment or evaluation may be 
performed face-to-face in-person or remotely. A face-to-face remote 
evaluation must meet the criteria in paragraphs (a)(1)(i) and (ii) of 
this section.
    (4) Providing the DER with a follow-up drug and/or alcohol testing 
plan for the employee; and
    (5) Providing the employee and employer with recommendations for 
continuing education and/or treatment.
    (b) As a SAP, you are not an advocate for the employer or employee. 
Your function is to protect the public interest in safety by 
professionally evaluating the employee and recommending appropriate 
education/treatment, follow-up tests, and aftercare.

[65 FR 79526, Dec. 19, 2000, as amended at 88 FR 27650, May 2, 2023]



Sec.  40.293  What is the SAP's function in conducting the initial
evaluation of an employee?

    As a SAP, for every employee who comes to you following a DOT drug 
and alcohol regulation violation, you must accomplish the following:
    (a) Provide a comprehensive assessment and clinical evaluation 
meeting the requirements of Sec.  40.291(a)(1).
    (b) Recommend a course of education and/or treatment with which the 
employee must demonstrate successful compliance prior to returning to 
DOT safety-sensitive duty.
    (1) You must make such a recommendation for every individual who has 
violated a DOT drug and alcohol regulation.
    (2) You must make a recommendation for education and/or treatment 
that will, to the greatest extent possible, protect public safety in the 
event that the employee returns to the performance of safety-sensitive 
functions.
    (c) Appropriate education may include, but is not limited to, self-
help groups (e.g., Alcoholics Anonymous) and community lectures, where 
attendance can be independently verified, and bona fide drug and alcohol 
education courses.
    (d) Appropriate treatment may include, but is not limited to, in-
patient hospitalization, partial in-patient treatment, out-patient 
counseling programs, and aftercare.
    (e) You must assess and clinically evaluate each employee on an 
individual basis and use your professional judgment to determine 
education and/or treatment, as well as a follow-up testing plan unique 
to the needs of the individual employee. For example, do not require the 
same and/or substantially similar education, treatment, and/or follow-up 
testing plan for most of the employees you assess.
    (f) You must provide a written report directly to the DER 
highlighting your specific recommendations for assistance (see Sec.  
40.311(c)).
    (g) For purposes of your role in the evaluation process, you must 
assume that a verified positive test result has conclusively established 
that the employee committed a DOT drug and alcohol regulation violation. 
You must not take into consideration in any

[[Page 669]]

way, as a factor in determining what your recommendation will be, any of 
the following:
    (1) A claim by the employee that the test was unjustified or 
inaccurate;
    (2) Statements by the employee that attempt to mitigate the 
seriousness of a violation of a DOT drug or alcohol regulation (e.g., 
related to assertions of use of hemp oil, ``medical marijuana'' use, 
``contact positives,'' poppy seed ingestion, job stress); or
    (3) Personal opinions you may have about the justification or 
rationale for drug and alcohol testing.
    (h) In the course of gathering information for purposes of your 
evaluation in the case of a drug-related violation, you may consult with 
the MRO. As the MRO, you are required to cooperate with the SAP and 
provide available information the SAP requests. It is not necessary to 
obtain the consent of the employee to provide this information.

[65 FR 79526, Dec. 19, 2000, as amended at 88 FR 27650, May 2, 2023]



Sec.  40.295  May employees or employers seek a second SAP evaluation
if they disagree with the first SAP's recommendations?

    (a) As an employee with a DOT drug and alcohol regulation violation, 
when you have been evaluated by a SAP, you must not seek a second SAP's 
evaluation in order to obtain another recommendation.
    (b) As an employer, you must not seek a second SAP's evaluation if 
the employee has already been evaluated by a qualified SAP. If the 
employee, contrary to paragraph (a) of this section, has obtained a 
second SAP evaluation, as an employer you may not rely on it for any 
purpose under this part.



Sec.  40.297  Does anyone have the authority to change a SAP's initial
evaluation?

    (a) Except as provided in paragraph (b) of this section, no one 
(e.g., an employer, employee, a managed-care provider, any service 
agent) may change in any way the SAP's evaluation or recommendations for 
assistance. For example, a third party is not permitted to make more or 
less stringent a SAP's recommendation by changing the SAP's evaluation 
or seeking another SAP's evaluation.
    (b) The SAP who made the initial evaluation may modify his or her 
initial evaluation and recommendations based on new or additional 
information (e.g., from an education or treatment program).
    (c) The SAP, who is otherwise fully qualified under this subpart, 
must not perform evaluations outside the geographic jurisdiction for 
their credential(s). If the SAP who made the evaluation exceeds their 
geographic jurisdiction, the employee will not be required to seek the 
evaluation of a second SAP.

[65 FR 79526, Dec. 19, 2000, as amended at 88 FR 27650, May 2, 2023]



Sec.  40.299  What is the SAP's role and what are the limits on a SAP's
discretion in referring employees for education and treatment?

    (a) As a SAP, upon your determination of the best recommendation for 
assistance, you will serve as a referral source to assist the employee's 
entry into an education and/or treatment program.
    (b) To prevent the appearance of a conflict of interest, you must 
not refer an employee requiring assistance to your private practice or 
to a person or organization from which you receive payment or to a 
person or organization in which you have a financial interest. You are 
precluded from making referrals to entities with which you are 
financially associated.
    (c) There are four exceptions to the prohibitions contained in 
paragraph (b) of this section. You may refer an employee to any of the 
following providers of assistance, regardless of your relationship with 
them:
    (1) A public agency (e.g., treatment facility) operated by a state, 
county, or municipality;
    (2) The employer or a person or organization under contract to the 
employer to provide alcohol or drug treatment and/or education services 
(e.g., the employer's contracted treatment provider);
    (3) The sole source of therapeutically appropriate treatment under 
the employee's health insurance program

[[Page 670]]

(e.g., the single substance abuse in-patient treatment program made 
available by the employee's insurance coverage plan); or
    (4) The sole source of therapeutically appropriate treatment 
reasonably available to the employee (e.g., the only treatment facility 
or education program reasonably located within the general commuting 
area).



Sec.  40.301  What is the SAP's function in the follow-up evaluation
of an employee?

    (a) As a SAP, after you have prescribed assistance under Sec.  
40.293, you must re-evaluate the employee to determine if the employee 
has successfully carried out your education and/or treatment 
recommendations.
    (1) This is your way to gauge for the employer the employee's 
ability to demonstrate successful compliance with the education and/or 
treatment plan.
    (2) Your evaluation may serve as one of the reasons the employer 
decides to return the employee to safety-sensitive duty.
    (b) As the SAP making the follow-up evaluation determination, you 
must:
    (1) Confer with or obtain appropriate documentation from the 
appropriate education and/or treatment program professionals where the 
employee was referred; and
    (2) Conduct a clinical interview meeting the requirements of Sec.  
40.291(a)(1) with the employee to determine if the employee demonstrates 
successful compliance with your initial evaluation recommendations.
    (c) (1) If the employee has demonstrated successful compliance, you 
must provide a written report directly to the DER highlighting your 
clinical determination that the employee has done so with your initial 
evaluation recommendation (see Sec.  40.311(d)).
    (2) You may determine that an employee has successfully demonstrated 
compliance even though the employee has not yet completed the full 
regimen of education and/or treatment you recommended or needs 
additional assistance. For example, if the employee has successfully 
completed the 30-day in-patient program you prescribed, you may make a 
``successful compliance'' determination even though you conclude that 
the employee has not yet completed the out-patient counseling you 
recommended or should continue in an aftercare program.
    (d)(1) As the SAP, if you believe, as a result of the follow-up 
evaluation, that the employee has not demonstrated successful compliance 
with your recommendations, you must provide written notice directly to 
the DER (see Sec.  40.311(e)).
    (2) As an employer who receives the SAP's written notice that the 
employee has not successfully complied with the SAP's recommendations, 
you must not return the employee to the performance of safety-sensitive 
duties.
    (3) As the SAP, you may conduct additional follow-up evaluation(s) 
if the employer determines that doing so is consistent with the 
employee's progress as you have reported it and with the employer's 
policy and/or labor-management agreements.
    (4) As the employer, following a SAP report that the employee has 
not demonstrated successful compliance, you may take personnel action 
consistent with your policy and/or labor-management agreements.

[65 FR 79526, Dec. 19, 2000, as amended at 88 FR 27650, May 2, 2023]



Sec.  40.303  What happens if the SAP believes the employee needs
additional treatment, aftercare, or support group services even after 
the employee returns to safety-sensitive duties?

    (a) As a SAP, if you believe that ongoing services (in addition to 
follow-up tests) are needed to assist an employee to maintain sobriety 
or abstinence from drug use after the employee resumes the performance 
of safety-sensitive duties, you must provide recommendations for these 
services in your follow-up evaluation report (see Sec.  40.311(d)(10)).
    (b) As an employer receiving a recommendation for these services 
from a SAP, you may, as part of a return-to-duty agreement with the 
employee, require the employee to participate in the recommended 
services. You may monitor and document the employee's participation in 
the recommended services. You may also make use of SAP

[[Page 671]]

and employee assistance program (EAP) services in assisting and 
monitoring employees' compliance with SAP recommendations. Nothing in 
this section permits an employer to fail to carry out its obligations 
with respect to follow-up testing (see Sec.  40.309).
    (c) As an employee, you are obligated to comply with the SAP's 
recommendations for these services. If you fail or refuse to do so, you 
may be subject to disciplinary action by your employer.



Sec.  40.305  How does the return-to-duty process conclude?

    (a) As the employer, if you decide that you want to permit the 
employee to return to the performance of safety-sensitive functions, you 
must ensure that the employee takes a return-to-duty test. This test 
cannot occur until after the SAP has determined that the employee has 
successfully complied with prescribed education and/or treatment. The 
employee must have a negative drug test result and/or an alcohol test 
with an alcohol concentration of less than 0.02 before resuming 
performance of safety-sensitive duties.
    (b) As an employer, you must not return an employee to safety-
sensitive duties until the employee meets the conditions of paragraph 
(a) of this section. However, you are not required to return an employee 
to safety-sensitive duties because the employee has met these 
conditions. That is a personnel decision that you have the discretion to 
make, subject to collective bargaining agreements or other legal 
requirements.
    (c) As a SAP or MRO, you must not make a ``fitness for duty'' 
determination as part of this re-evaluation unless required to do so 
under an applicable DOT agency regulation. It is the employer, rather 
than you, who must decide whether to put the employee back to work in a 
safety-sensitive position.
    (d) As the employer, if a SAP who is otherwise fully qualified under 
this subpart performed a remote evaluation of the employee outside the 
geographic jurisdiction for their credential(s), the employee who they 
evaluated will not be required to seek the evaluation of a second SAP. 
If you decide that you want to permit the employee to return to the 
performance of safety-sensitive functions, you will proceed with the 
requirements of paragraph (a) of this section.

[65 FR 79526, Dec. 19, 2000, as amended at 88 FR 27650, May 2, 2023]



Sec.  40.307  What is the SAP's function in prescribing the employee's
follow-up tests?

    (a) As a SAP, for each employee who has committed a DOT drug or 
alcohol regulation violation, and who seeks to resume the performance of 
safety-sensitive functions, you must establish a written follow-up 
testing plan. You do not establish this plan until after you determine 
that the employee has successfully complied with your recommendations 
for education and/or treatment.
    (b) You must present a copy of this plan directly to the DER (see 
Sec.  40.311(d)(9)).
    (c) You are the sole determiner of the number and frequency of 
follow-up tests and whether these tests will be for drugs, alcohol, or 
both, unless otherwise directed by the appropriate DOT agency 
regulation. For example, if the employee had a positive drug test, but 
your evaluation or the treatment program professionals determined that 
the employee had an alcohol problem as well, you should require that the 
employee have follow-up tests for both drugs and alcohol.
    (d) However, you must, at a minimum, direct that the employee be 
subject to six unannounced follow-up tests in the first 12 months of 
safety-sensitive duty following the employee's return to safety-
sensitive functions.
    (1) You may require a greater number of follow-up tests during the 
first 12-month period of safety-sensitive duty (e.g., you may require 
one test a month during the 12-month period; you may require two tests 
per month during the first 6-month period and one test per month during 
the final 6-month period).
    (2) You may also require follow-up tests during the 48 months of 
safety-sensitive duty following this first 12-month period.
    (3) You are not to establish the actual dates for the follow-up 
tests you

[[Page 672]]

prescribe. The decision on specific dates to test is the employer's.
    (4) As the employer, you must not impose additional testing 
requirements (e.g., under company authority) on the employee that go 
beyond the SAP's follow-up testing plan.
    (e) The requirements of the SAP's follow-up testing plan ``follow 
the employee'' to subsequent employers or through breaks in service.

    Example 1 to paragraph (e): The employee returns to duty with 
Employer A. Two months afterward, after completing the first two of six 
follow-up tests required by the SAP's plan, the employee quits his job 
with Employer A and begins to work in a similar position for Employer B. 
The employee remains obligated to complete the four additional tests 
during the next 10 months of safety-sensitive duty, and Employer B is 
responsible for ensuring that the employee does so. Employer B learns of 
this obligation through the inquiry it makes under Sec.  40.25.
    Example 2 to paragraph (e): The employee returns to duty with 
Employer A. Three months later, after the employee completes the first 
two of six follow-up tests required by the SAP's plan, Employer A lays 
the employee off for economic or seasonal employment reasons. Four 
months later, Employer A recalls the employee. Employer A must ensure 
that the employee completes the remaining four follow-up tests during 
the next nine months.

    (f) As the SAP, you may modify the determinations you have made 
concerning follow-up tests. For example, even if you recommended follow-
up testing beyond the first 12-months, you can terminate the testing 
requirement at any time after the first year of testing. You must not, 
however, modify the requirement that the employee take at least six 
follow-up tests within the first 12 months after returning to the 
performance of safety-sensitive functions.
    (g) As the employer, SAP, or other service agent, you must not 
provide to the employee a copy of their drug and/or alcohol follow-up 
testing schedule prescribed by the SAP. No employer, SAP, or other 
service agent will indicate to the employee what the frequency or 
duration of the employee's follow-up testing schedule will be. The SAP 
can require follow-up testing for either or both drugs and alcohol for a 
drug-related or an alcohol-related violation.

[65 FR 79526, Dec. 19, 2000, as amended at 88 FR 27650, May 2, 2023]



Sec.  40.309  What are the employer's responsibilities with respect 
to the SAP's directions for follow-up tests?

    (a) As the employer, you must carry out the SAP's follow-up testing 
requirements. You may not allow the employee to continue to perform 
safety-sensitive functions unless follow-up testing is conducted as 
directed by the SAP.
    (b) You should schedule follow-up tests on dates of your own 
choosing, but you must ensure that the tests are unannounced with no 
discernable pattern as to their timing, and that the employee is given 
no advance notice.
    (c) You cannot substitute any other tests (e.g., those carried out 
under the random testing program) conducted on the employee for this 
follow-up testing requirement.
    (d) You cannot count a follow-up test that has been cancelled as a 
completed test. A cancelled follow-up test must be recollected.



Sec.  40.311  What are the requirements concerning SAP reports?

    (a) As the SAP conducting the required evaluations, you must send 
the written reports required by this section in writing directly to the 
DER and not to a third party or entity for forwarding to the DER (except 
as provided in Sec.  40.355(e)). You may, however, forward the document 
simultaneously to the DER and to a C/TPA.
    (b) As an employer, you must ensure that you receive SAP written 
reports directly from the SAP performing the evaluation and that no 
third party or entity changed the SAP's report in any way.
    (c) The SAP's written report, following an initial evaluation that 
determines what level of assistance is needed to address the employee's 
drug and/or alcohol problems, must be on the SAP's own letterhead (and 
not the letterhead of another service agent) signed and dated by the 
SAP, and must contain the following delineated items:
    (1) Employee's name and SSN or employee ID No.;

[[Page 673]]

    (2) Employer's name and address;
    (3) Reason for the assessment (specific violation of DOT regulations 
and violation date);
    (4) Date(s) and format (i.e., face-to-face or remote) of the 
assessment;
    (5) SAP's education and/or treatment recommendation; and
    (6) SAP's telephone number.
    (d) The SAP's written report concerning a follow-up evaluation that 
determines the employee has demonstrated successful compliance must be 
on the SAP's own letterhead (and not the letterhead of another service 
agent), signed by the SAP and dated, and must contain the following 
items:
    (1) Employee's name and SSN or employee ID No.;
    (2) Employer's name and address;
    (3) Reason for the initial assessment (specific violation of DOT 
regulations and violation date);
    (4) Date(s) and format (i.e., face-to-face or remote) of the initial 
assessment and synopsis of the treatment plan;
    (5) Name of practice(s) or service(s) providing the recommended 
education and/or treatment;
    (6) Inclusive dates of employee's program participation;
    (7) Clinical characterization of employee's program participation;
    (8) SAP's clinical determination as to whether the employee has 
demonstrated successful compliance;
    (9) Follow-up testing plan;
    (10) Employee's continuing care needs with specific treatment, 
aftercare, and/or support group services recommendations; and
    (11) SAP's telephone number.
    (e) The SAP's written report concerning a follow-up evaluation that 
determines the employee has not demonstrated successful compliance must 
be on the SAP's own letterhead (and not the letterhead of another 
service agent), signed by the SAP and dated, and must contain the 
following items:
    (1) Employee's name and SSN or employee ID No.;
    (2) Employer's name and address;
    (3) Reason for the initial assessment (specific DOT violation and 
date);
    (4) Date(s) and format (i.e., face-to-face or remote) of initial 
assessment and synopsis of treatment plan;
    (5) Name of practice(s) or service(s) providing the recommended 
education and/or treatment;
    (6) Inclusive dates of employee's program participation;
    (7) Clinical characterization of employee's program participation;
    (8) Date(s) of the first follow-up evaluation;
    (9) Date(s) of any further follow-up evaluation the SAP has 
scheduled;
    (10) SAP's clinical reasons for determining that the employee has 
not demonstrated successful compliance; and
    (11) SAP's telephone number.
    (f) As a SAP, you must also provide these written reports directly 
to the employee if the employee has no current employer and to the 
gaining DOT regulated employer in the event the employee obtains another 
transportation industry safety-sensitive position.
    (g) As a SAP, you are to maintain copies of your reports to 
employers for 5 years, and your employee clinical records in accordance 
with Federal, state, and local laws regarding record maintenance, 
confidentiality, and release of information. You must make these records 
available, on request, to DOT agency representatives (e.g., inspectors 
conducting an audit or safety investigation) and representatives of the 
NTSB in an accident investigation.
    (h) As an employer, you must maintain your reports from SAPs for 5 
years from the date you received them.

[65 FR 79526, Dec. 19, 2000, as amended at 88 FR 27650, May 2, 2023]



Sec.  40.313  Where is other information on SAP functions and the 
return-to-duty process found in this regulation?

    You can find other information on the role and functions of SAPs in 
the following sections of this part:

Sec.  40.3--Definition.
Sec.  40.347--Service agent assistance with SAP-required follow-up 
          testing.
Sec.  40.355--Transmission of SAP reports.
Sec.  40.329(c)--Making SAP reports available to employees on request.
Appendix E to Part 40--SAP Equivalency Requirements for Certification 
          Organizations.

[[Page 674]]



          Subpart P_Confidentiality and Release of Information



Sec.  40.321  What is the general confidentiality rule for drug and
alcohol test information?

    Except as otherwise provided in this subpart, as a service agent or 
employer participating in the DOT drug or alcohol testing process, you 
are prohibited from releasing individual test results or medical 
information about an employee to third parties without the employee's 
specific written consent.
    (a) A ``third party'' is any person or organization to whom other 
subparts of this regulation do not explicitly authorize or require the 
transmission of information in the course of the drug or alcohol testing 
process.
    (b) ``Specific written consent'' means a statement signed by the 
employee that he or she agrees to the release of a particular piece of 
information to a particular, explicitly identified, person or 
organization at a particular time. ``Blanket releases,'' in which an 
employee agrees to a release of a category of information (e.g., all 
test results) or to release information to a category of parties (e.g., 
other employers who are members of a C/TPA, companies to which the 
employee may apply for employment), are prohibited under this part.



Sec.  40.323  May program participants release drug or alcohol test
information in connection with legal proceedings?

    (a) As an employer, you may release information pertaining to an 
employee's drug or alcohol test without the employee's consent in 
certain legal proceedings.
    (1) These proceedings include a lawsuit (e.g., a wrongful discharge 
action), grievance (e.g., an arbitration concerning disciplinary action 
taken by the employer), or administrative proceeding (e.g., an 
unemployment compensation hearing) brought by, or on behalf of, an 
employee and resulting from a positive DOT drug or alcohol test or a 
refusal to test (including, but not limited to, adulterated or 
substituted test results).
    (2) These proceedings also include a criminal or civil action 
resulting from an employee's performance of safety-sensitive duties, in 
which a court of competent jurisdiction determines that the drug or 
alcohol test information sought is relevant to the case and issues an 
order directing the employer to produce the information. For example, in 
personal injury litigation following a truck or bus collision, the court 
could determine that a post-accident drug test result of an employee is 
relevant to determining whether the driver or the driver's employer was 
negligent. The employer is authorized to respond to the court's order to 
produce the records.
    (b) In such a proceeding, you may release the information to the 
decisionmaker in the proceeding (e.g., the court in a lawsuit). You may 
release the information only with a binding stipulation that the 
decisionmaker to whom it is released will make it available only to 
parties to the proceeding.
    (c) If you are a service agent, and the employer requests its 
employee's drug or alcohol testing information from you to use in a 
legal proceeding as authorized in paragraph (a) of this section (e.g., 
the laboratory's data package), you must provide the requested 
information to the employer.
    (d) As an employer or service agent, you must immediately notify the 
employee in writing of any information you release under this section.



Sec.  40.325  [Reserved]



Sec.  40.327  When must the MRO report medical information gathered in 
the verification process?

    (a) As the MRO, you must, except as provided in paragraph (d) of 
this section, report drug test results and medical information you 
learned as part of the verification process to third parties without the 
employee's consent if you determine, in your reasonable medical 
judgment, that:
    (1) The information is likely to result in the employee being 
determined to be medically unqualified under an applicable DOT agency 
regulation; or
    (2) The information indicates that continued performance by the 
employee of his or her safety-sensitive function is likely to pose a 
significant safety risk.

[[Page 675]]

    (b) The third parties to whom you are authorized to provide 
information by this section include the employer, a physician or other 
health care provider responsible for determining the medical 
qualifications of the employee under an applicable DOT agency safety 
regulation, a SAP evaluating the employee as part of the return to duty 
process (see Sec.  40.293(g)), a DOT agency, or the National 
Transportation Safety Board in the course of an accident investigation.
    (c) The MRO must not report such medical information using the CCF. 
Instead, the MRO must provide the information in a separate written 
communication (e.g., letter, secure email). The information must state 
the specific nature of the MRO's safety concern (e.g., the effects of a 
medication the employee is taking, the employee's underlying medical 
condition that the employee disclosed to the MRO).
    (d) If the law of a foreign country (e.g., Canada) prohibits you 
from providing medical information to the employer, you may comply with 
that prohibition.

[65 FR 79526, Dec. 19, 2000, as amended at 88 FR 27650, May 2, 2023]



Sec.  40.329  What information must laboratories, MROs, and other service 
agents release to employees?

    (a) As an MRO or service agent you must provide, within 10 business 
days of receiving a written request from an employee, copies of any 
records pertaining to the employee's use of alcohol and/or drugs, 
including records of the employee's DOT-mandated drug and/or alcohol 
tests. You may charge no more than the cost of preparation and 
reproduction for copies of these records.
    (b) As a laboratory, you must provide, within 10 business days of 
receiving a written request from an employee, and made through the MRO, 
the records relating to the results of the employee's drug test (i.e., 
laboratory report and data package). You may charge no more than the 
cost of preparation and reproduction for copies of these records.
    (c) As a SAP, you must make available to an employee, on request, a 
copy of all SAP reports (see Sec.  40.311). However, you must redact 
follow-up testing information from the report before providing it to the 
employee.

[65 FR 79526, Dec. 19, 2000, as amended at 66 FR 41954, Aug. 9, 2001]



Sec.  40.331  To what additional parties must employers and service
agents release information?

    As an employer or service agent you must release information under 
the following circumstances:
    (a) If you receive a specific, written consent from an employee 
authorizing the release of information about that employee's drug or 
alcohol tests to an identified person, you must provide the information 
to the identified person. For example, as an employer, when you receive 
a written request from a former employee to provide information to a 
subsequent employer, you must do so. In providing the information, you 
must comply with the terms of the employee's consent.
    (b) If you are an employer, you must, upon request of DOT agency 
representatives, provide the following:
    (1) Access to your facilities used for this part and DOT agency drug 
and alcohol program functions.
    (2) All written, printed, and computer-based drug and alcohol 
program records and reports (including copies of name-specific records 
or reports), files, materials, data, documents/documentation, 
agreements, contracts, policies, and statements that are required by 
this part and DOT agency regulations. You must provide this information 
at your principal place of business in the time required by the DOT 
agency.
    (3) All items in paragraph (b)(2) of this section must be easily 
accessible, legible, and provided in an organized manner. If electronic 
records do not meet these standards, they must be converted to printed 
documentation that meets these standards.
    (c) If you are a service agent, you must, upon request of DOT agency 
representatives, provide the following:
    (1) Access to your facilities used for this part and DOT agency drug 
and alcohol program functions.
    (2) All written, printed, and computer-based drug and alcohol 
program records and reports (including copies of name-specific records 
or reports), files,

[[Page 676]]

materials, data, documents/documentation, agreements, contracts, 
policies, and statements that are required by this part and DOT agency 
regulations. You must provide this information at your principal place 
of business in the time required by the DOT agency.
    (3) All items in paragraph (c)(2) of this section must be easily 
accessible, legible, and provided in an organized manner. If electronic 
records do not meet these standards, they must be converted to printed 
documentation that meets these standards.
    (d) If requested by the National Transportation Safety Board as part 
of an accident investigation, you must provide information concerning 
post-accident tests administered after the accident.
    (e) If requested by a Federal, state or local safety agency with 
regulatory authority over you or the employee, you must provide drug and 
alcohol test records concerning the employee.
    (f) Except as otherwise provided in this part, as a laboratory you 
must not release or provide a specimen or a part of a specimen to a 
requesting party, without first obtaining written consent from ODAPC. 
DNA testing and other types of identity testing are not authorized and 
ODAPC will not give permission for such testing. If a party seeks a 
court order directing you to release a specimen or part of a specimen 
contrary to any provision of this part, you must take necessary legal 
steps to contest the issuance of the order (e.g., seek to quash a 
subpoena, citing the requirements of Sec.  40.13). This part does not 
require you to disobey a court order, however.
    (g) Notwithstanding any other provision of this Part, as an employer 
of Commercial Motor Vehicle (CMV) drivers holding commercial driving 
licenses (CDLs) or as a third party administrator for owner-operator CMV 
drivers with CDLs, you are authorized to comply with State laws 
requiring you to provide to State CDL licensing authorities information 
about all violations of DOT drug and alcohol testing rules (including 
positive tests and refusals) by any CMV driver holding a CDL.

[65 FR 79526, Dec. 19, 2000, as amended at 66 FR 41955, Aug. 9, 2001; 73 
FR 33737, June 13, 2008; 82 FR 52247, Nov. 13, 2017]



Sec.  40.333  What records must employers keep?

    (a) As an employer, you must keep the following records for the 
following periods of time:
    (1) You must keep the following records for five years:
    (i) Records of alcohol test results indicating an alcohol 
concentration of 0.02 or greater;
    (ii) Records of verified positive drug test results;
    (iii) Documentation of refusals to take required alcohol and/or drug 
tests (including substituted or adulterated drug test results);
    (iv) SAP reports; and
    (v) All follow-up tests and schedules for follow-up tests.
    (2) You must keep records for three years of information obtained 
from previous employers under Sec.  40.25 concerning drug and alcohol 
test results of employees.
    (3) You must keep records of the inspection, maintenance, and 
calibration of EBTs, for two years.
    (4) You must keep records of negative and cancelled drug test 
results and alcohol test results with a concentration of less than 0.02 
for one year.
    (b) You do not have to keep records related to a program requirement 
that does not apply to you (e.g., a maritime employer who does not have 
a DOT-mandated random alcohol testing program need not maintain random 
alcohol testing records).
    (c) You must maintain the records in a location with controlled 
access.
    (d) A service agent may maintain these records for you. However, you 
must ensure that you can produce these records at your principal place 
of business in the time required by the DOT agency. For example, as a 
motor carrier, when an FMCSA inspector requests your records, you must 
ensure that you can provide them within two business days.
    (e) If you store records electronically, where permitted by this 
part, you must ensure that the records are

[[Page 677]]

easily accessible, legible, and formatted and stored in an organized 
manner. If electronic records do not meet these criteria, you must 
convert them to printed documentation in a rapid and readily auditable 
manner, at the request of DOT agency personnel.

[65 FR 79526, Dec. 19, 2000, as amended at 66 FR 41955, Aug. 9, 2001]



         Subpart Q_Roles and Responsibilities of Service Agents



Sec.  40.341  Must service agents comply with DOT drug and alcohol
testing requirements?

    (a) As a service agent, the services you provide to transportation 
employers must meet the requirements of this part and the DOT agency 
drug and alcohol testing regulations.
    (b) If you do not comply, DOT may take action under the Public 
Interest Exclusions procedures of this part (see Subpart R of this part) 
or applicable provisions of other DOT agency regulations.



Sec.  40.343  What tasks may a service agent perform for an employer?

    As a service agent, you may perform for employers the tasks needed 
to comply with DOT agency drug and alcohol testing regulations, subject 
to the requirements and limitations of this part.



Sec.  40.345  In what circumstances may a C/TPA act as an intermediary 
in the transmission of drug and alcohol testing information to employers?

    (a) As a C/TPA or other service agent, you may act as an 
intermediary in the transmission of drug and alcohol testing information 
in the circumstances specified in this section only if the employer 
chooses to have you do so. Each employer makes the decision about 
whether to receive some or all of this information from you, acting as 
an intermediary, rather than directly from the service agent who 
originates the information (e.g., an MRO or BAT).
    (b) The specific provisions of this part concerning which you may 
act as an intermediary are listed in appendix H to this part. These are 
the only situations in which you may act as an intermediary. You are 
prohibited from doing so in all other situations.
    (c) In every case, you must ensure that, in transmitting information 
to employers, you meet all requirements (e.g., concerning 
confidentiality and timing) that would apply if the service agent 
originating the information (e.g., an MRO or collector) sent the 
information directly to the employer. For example, if you transmit drug 
testing results from MROs to DERs, you must transmit each drug test 
result to the DER in compliance with the MRO requirements set forth in 
Sec.  40.167.

[65 FR 79526, Dec. 19, 2000, as amended at 88 FR 27650, May 2, 2023]



Sec.  40.347  What functions may C/TPAs perform with respect to
administering testing?

    As a C/TPA, except as otherwise specified in this part, you may 
perform the following functions for employers concerning random 
selection and other selections for testing.
    (a) You may operate random testing programs for employers and may 
assist (i.e., through contracting with laboratories or collection sites, 
conducting collections) employers with other types of testing (e.g., 
pre-employment, post-accident, reasonable suspicion, return-to-duty, and 
follow-up).
    (b) You may combine employees from more than one employer or one 
transportation industry in a random pool if permitted by all the DOT 
agency drug and alcohol testing regulations involved.
    (1) If you combine employees from more than one transportation 
industry, you must ensure that the random testing rate is at least equal 
to the highest rate required by each DOT agency.
    (2) Employees not covered by DOT agency regulations may not be part 
of the same random pool with DOT covered employees.
    (c) You may assist employers in ensuring that follow-up testing is 
conducted in accordance with the plan established by the SAP. However, 
neither you nor the employer are permitted to randomly select employees 
from a ``follow-up pool'' for follow-up testing.

[[Page 678]]



Sec.  40.349  What records may a service agent receive and maintain?

    (a) Except where otherwise specified in this part, as a service 
agent you may receive and maintain all records concerning DOT drug and 
alcohol testing programs, including positive, negative, and refusal to 
test individual test results. You do not need the employee's consent to 
receive and maintain these records.
    (b) You may maintain all information needed for operating a drug/
alcohol program (e.g., CCFs, ATFs, names of employees in random pools, 
random selection lists, copies of notices to employers of selected 
employees) on behalf of an employer.
    (c) If a service agent originating drug or alcohol testing 
information, such as an MRO or BAT, sends the information directly to 
the DER, he or she may also provide the information simultaneously to 
you, as a C/TPA or other service agent who maintains this information 
for the employer.
    (d) If you are serving as an intermediary in transmitting 
information that is required to be provided to the employer, you must 
ensure that it reaches the employer in the same time periods required 
elsewhere in this part.
    (e) You must ensure that you can make available to the employer 
within two business days any information the employer is asked to 
produce by a DOT agency representative.
    (f) On request of an employer, you must, at any time on the request 
of an employer, transfer immediately all records pertaining to the 
employer and its employees to the employer or to any other service agent 
the employer designates. You must carry out this transfer as soon as the 
employer requests it. You are not required to obtain employee consent 
for this transfer. You must not charge more than your reasonable 
administrative costs for conducting this transfer. You may not charge a 
fee for the release of these records.
    (g) If you are planning to go out of business or your organization 
will be bought by or merged with another organization, you must 
immediately notify all employers and offer to transfer all records 
pertaining to the employer and its employees to the employer or to any 
other service agent the employer designates. You must carry out this 
transfer as soon as the employer requests it. You are not required to 
obtain employee consent for this transfer. You must not charge more than 
your reasonable administrative costs for conducting this transfer. You 
may not charge a fee for the release of these records.

[65 FR 79526, Dec. 19, 2000, as amended at 66 FR 41955, Aug. 9, 2001]



Sec.  40.351  What confidentiality requirements apply to service agents?

    Except where otherwise specified in this part, as a service agent 
the following confidentiality requirements apply to you:
    (a) When you receive or maintain confidential information about 
employees (e.g., individual test results), you must follow the same 
confidentiality regulations as the employer with respect to the use and 
release of this information.
    (b) You must follow all confidentiality and records retention 
requirements applicable to employers.
    (c) You may not provide individual test results or other 
confidential information to another employer without a specific, written 
consent from the employee. For example, suppose you are a C/TPA that has 
employers X and Y as clients. Employee Jones works for X, and you 
maintain Jones' drug and alcohol test for X. Jones wants to change jobs 
and work for Y. You may not inform Y of the result of a test conducted 
for X without having a specific, written consent from Jones. Likewise, 
you may not provide this information to employer Z, who is not a C/TPA 
member, without this consent.
    (d) You must not use blanket consent forms authorizing the release 
of employee testing information.
    (e) You must establish adequate confidentiality and security 
measures to ensure that confidential employee records are not available 
to unauthorized persons. This includes protecting the physical security 
of records, access controls, and computer security measures to safeguard 
confidential data in electronic data bases.

[[Page 679]]



Sec.  40.353  What principles govern the interaction between MROs and 
other service agents?

    As a service agent other than an MRO (e.g., a C/TPA), the following 
principles govern your interaction with MROs:
    (a) You may provide MRO services to employers, directly or through 
contract, if you meet all applicable provisions of this part.
    (b) If you employ or contract for an MRO, the MRO must perform 
duties independently and confidentially. When you have a relationship 
with an MRO, you must structure the relationship to ensure that this 
independence and confidentiality are not compromised. Specific means 
(including both physical and operational measures, as appropriate) to 
separate MRO functions and other service agent functions are essential.
    (c) Only your staff who are actually under the day-to-day 
supervision and control of an MRO with respect to MRO functions may 
perform these functions. This does not mean that those staff may not 
perform other functions at other times. However, the designation of your 
staff to perform MRO functions under MRO supervision must be limited and 
not used as a subterfuge to circumvent confidentiality and other 
requirements of this part and DOT agency regulations. You must ensure 
that MRO staff operate under controls sufficient to ensure that the 
independence and confidentiality of the MRO process are not compromised.
    (d) Like other MROs, an MRO you employ or contract with must 
personally conduct verification interviews with employees and must 
personally make all verification decisions. Consequently, your staff 
cannot perform these functions.



Sec.  40.355  What limitations apply to the activities of service agents?

    As a service agent, you are subject to the following limitations 
concerning your activities in the DOT drug and alcohol testing program.
    (a) You must not require an employee to sign a consent, release, 
waiver of liability, or indemnification agreement with respect to any 
part of the drug or alcohol testing process covered by this part 
(including, but not limited to, collections, laboratory testing, MRO, 
and SAP services). No one may do so on behalf of a service agent.
    (b) You must not act as an intermediary in the transmission of drug 
test results from the laboratory to the MRO. That is, the laboratory may 
not send results to you, with you in turn sending them to the MRO for 
verification. For example, a practice in which the laboratory transmits 
results to your computer system, and you then assign the results to a 
particular MRO, is not permitted.
    (c) You must not transmit drug test results directly from the 
laboratory to the employer (by electronic or other means) or to a 
service agent who forwards them to the employer. All confirmed 
laboratory results must be processed by the MRO before they are released 
to any other party.
    (d) You must not act as an intermediary in the transmission of 
alcohol test results of 0.02 or higher from the STT or BAT to the DER.
    (e) Except as provided in paragraph (f) of this section, you must 
not act as an intermediary in the transmission of individual SAP reports 
to the actual employer. That is, the SAP may not send such reports to 
you, with you in turn sending them to the actual employer. However, you 
may maintain individual SAP summary reports and follow-up testing plans 
after they are sent to the DER, and the SAP may transmit such reports to 
you simultaneously with sending them to the DER.
    (f) As an exception to paragraph (e) of this section, you may act as 
an intermediary in the transmission of SAP report from the SAP to an 
owner-operator or other self-employed individual.
    (g) Except as provided in paragraph (h) of this section, you must 
not make decisions to test an employee based upon reasonable suspicion, 
post-accident, return-to-duty, and follow-up determination criteria. 
These are duties the actual employer cannot delegate to a C/TPA. You 
may, however, provide advice and information to employers regarding 
these testing issues and how the employer should schedule required 
testing.

[[Page 680]]

    (h) As an exception to paragraph (g) of this section, you may make 
decisions to test an employee based upon reasonable suspicion, post-
accident, return-to-duty, and follow-up determination criteria with 
respect to an owner-operator or other self-employed individual.
    (i) Except as provided in paragraph (j) of this section, you must 
not make a determination that an employee has refused a drug or alcohol 
test. This is a non-delegable duty of the actual employer. You may, 
however, provide advice and information to employers regarding refusal-
to-test issues.
    (j) As an exception to paragraph (i) of this section, you may make a 
determination that an employee has refused a drug or alcohol test, if:
    (1) You schedule a required test for an owner-operator or other 
self-employed individual, and the individual fails to appear for the 
test without a legitimate reason; or
    (2) As an MRO, you determine that an individual has refused to test 
on the basis of adulteration or substitution.
    (k) You must not act as a DER. For example, while you may be 
responsible for transmitting information to the employer about test 
results, you must not act on behalf of the employer in actions to remove 
employees from safety-sensitive duties.
    (l) In transmitting documents to laboratories, you must ensure that 
you send to the laboratory that conducts testing only Copy 1 of the CCF. 
You must not transmit other copies of the CCF or any ATFs to the 
laboratory.
    (m) You must not impose conditions or requirements on employers that 
DOT regulations do not authorize. For example, as a C/TPA serving 
employers in the pipeline or motor carrier industry, you must not 
require employers to have provisions in their DOT plans that PHMSA or 
FMCSA regulations do not require.
    (n) You must not intentionally delay the transmission of drug or 
alcohol testing-related documents concerning actions you have performed, 
because of a payment dispute or other reasons.

    Example 1 to paragraph (n): A laboratory that has tested a specimen 
must not delay transmitting the documentation of the test result to an 
MRO because of a billing or payment dispute with the MRO or a C/TPA.
    Example 2 to paragraph (n): An MRO or SAP who has interviewed an 
employee must not delay sending a verified test result or SAP report to 
the employer because of such a dispute with the employer or employee.
    Example 3 to paragraph (n): A collector who has performed a specimen 
collection must not delay sending the drug specimen and CCF to the 
laboratory because of a payment or other dispute with the laboratory or 
a C/TPA.
    Example 4 to paragraph (n): A BAT who has conducted an alcohol test 
must not delay sending test result information to an employer or C/TPA 
because of a payment or other dispute with the employer or C/TPA.

    (o) While you must follow the DOT agency regulations, the actual 
employer remains accountable to DOT for compliance, and your failure to 
implement any aspect of the program as required in this part and other 
applicable DOT agency regulations makes the employer subject to 
enforcement action by the Department.

[65 FR 79526, Dec. 19, 2000, as amended at 66 FR 41955, Aug. 9, 2001; 71 
FR 49384, Aug. 23, 2006; 75 FR 59108, Sept. 27, 2010; 88 FR 27650, May 
2, 2023]



                  Subpart R_Public Interest Exclusions



Sec.  40.361  What is the purpose of a public interest exclusion (PIE)?

    (a) To protect the public interest, including protecting 
transportation employers and employees from serious noncompliance with 
DOT drug and alcohol testing rules, the Department's policy is to ensure 
that employers conduct business only with responsible service agents.
    (b) The Department therefore uses PIEs to exclude from participation 
in DOT's drug and alcohol testing program any service agent who, by 
serious noncompliance with this part or other DOT agency drug and 
alcohol testing regulations, has shown that it is not currently acting 
in a responsible manner.
    (c) A PIE is a serious action that the Department takes only to 
protect the public interest. We intend to use PIEs only to remedy 
situations of serious noncompliance. PIEs are not used for the purpose 
of punishment.

[[Page 681]]

    (d) Nothing in this subpart precludes a DOT agency or the Inspector 
General from taking other action authorized by its regulations with 
respect to service agents or employers that violate its regulations.



Sec.  40.363  On what basis may the Department issue a PIE?

    (a) If you are a service agent, the Department may issue a PIE 
concerning you if we determine that you have failed or refused to 
provide drug or alcohol testing services consistent with the 
requirements of this part or a DOT agency drug and alcohol regulation.
    (b) The Department also may issue a PIE if you have failed to 
cooperate with DOT agency representatives concerning inspections, 
complaint investigations, compliance and enforcement reviews, or 
requests for documents and other information about compliance with this 
part or DOT agency drug and alcohol regulations.



Sec.  40.365  What is the Department's policy concerning starting a 
PIE proceeding?

    (a) It is the Department's policy to start a PIE proceeding only in 
cases of serious, uncorrected noncompliance with the provisions of this 
part, affecting such matters as safety, the outcomes of test results, 
privacy and confidentiality, due process and fairness for employees, the 
honesty and integrity of the testing program, and cooperation with or 
provision of information to DOT agency representatives.
    (b) The following are examples of the kinds of serious noncompliance 
that, as a matter of policy, the Department views as appropriate grounds 
for starting a PIE proceeding. These examples are not intended to be an 
exhaustive or exclusive list of the grounds for starting a PIE 
proceeding. We intend them to illustrate the level of seriousness that 
the Department believes supports starting a PIE proceeding. The examples 
follow:
    (1) For an MRO, verifying tests positive without interviewing the 
employees as required by this part or providing MRO services without 
meeting the qualifications for an MRO required by this part;
    (2) For a laboratory, refusing to provide information to the 
Department, an employer, or an employee as required by this part; 
failing or refusing to conduct a validity testing program when required 
by this part; or a pattern or practice of testing errors that result in 
the cancellation of tests. (As a general matter of policy, the 
Department does not intend to initiate a PIE proceeding concerning a 
laboratory with respect to matters on which HHS initiates certification 
actions under its laboratory guidelines.);
    (3) For a collector, a pattern or practice of directly observing 
collections when doing so is unauthorized, or failing or refusing to 
directly observe collections when doing so is mandatory;
    (4) For collectors, BATs, or STTs, a pattern or practice of using 
forms, testing equipment, or collection kits that do not meet the 
standards in this part;
    (5) For a collector, BAT, or STT, a pattern or practice of ``fatal 
flaws'' or other significant uncorrected errors in the collection 
process;
    (6) For a laboratory, MRO or C/TPA, failing or refusing to report 
tests results as required by this part or DOT agency regulations;
    (7) For a laboratory, falsifying, concealing, or destroying 
documentation concerning any part of the drug testing process, 
including, but not limited to, documents in a ``litigation package'';
    (8) For SAPs, providing SAP services while not meeting SAP 
qualifications required by this part or performing evaluations without 
interviews meeting the requirements of Sec.  40.291(a)(1);
    (9) For any service agent, maintaining a relationship with another 
party that constitutes a conflict of interest under this part (e.g., a 
laboratory that derives a financial benefit from having an employer use 
a specific MRO);
    (10) For any service agent, falsely representing that the service 
agent or its activities is approved or certified by the Department or a 
DOT agency (such representation includes, but is not limited to, the use 
of a Department or DOT agency logo, title, or emblem).
    (11) For any service agent, disclosing an employee's test result 
information to any party this part or a DOT agency

[[Page 682]]

regulation does not authorize, including by obtaining a ``blanket'' 
consent from employees or by creating a data base from which employers 
or others can retrieve an employee's DOT test results without the 
specific consent of the employee;
    (12) For any service agent, interfering or attempting to interfere 
with the ability of an MRO to communicate with the Department, or 
retaliating against an MRO for communicating with the Department;
    (13) For any service agent, directing or recommending that an 
employer fail or refuse to implement any provision of this part; or
    (14) With respect to noncompliance with a DOT agency regulation, 
conduct that affects important provisions of Department-wide concern 
(e.g., failure to properly conduct the selection process for random 
testing).

[65 FR 79526, Dec. 19, 2000, as amended at 82 FR 52247, Nov. 13, 2017; 
88 FR 27650, May 2, 2023]



Sec.  40.367  Who initiates a PIE proceeding?

    The following DOT officials may initiate a PIE proceeding:
    (a) The drug and alcohol program manager of a DOT agency;
    (b) An official of ODAPC, other than the Director; or
    (c) The designee of any of these officials.



Sec.  40.369  What is the discretion of an initiating official in
starting a PIE proceeding?

    (a) Initiating officials have broad discretion in deciding whether 
to start a PIE proceeding.
    (b) In exercising this discretion, the initiating official must 
consider the Department's policy regarding the seriousness of the 
service agent's conduct (see Sec.  40.365) and all information he or she 
has obtained to this point concerning the facts of the case. The 
initiating official may also consider the availability of the resources 
needed to pursue a PIE proceeding.
    (c) A decision not to initiate a PIE proceeding does not necessarily 
mean that the Department regards a service agent as being in compliance 
or that the Department may not use other applicable remedies in a 
situation of noncompliance.



Sec.  40.371  On what information does an initiating official rely
in deciding whether to start a PIE proceeding?

    (a) An initiating official may rely on credible information from any 
source as the basis for starting a PIE proceeding.
    (b) Before sending a correction notice (see Sec.  40.373), the 
initiating official informally contacts the service agent to determine 
if there is any information that may affect the initiating official's 
determination about whether it is necessary to send a correction notice. 
The initiating official may take any information resulting from this 
contact into account in determining whether to proceed under this 
subpart.



official give the service agent an opportunity to correct problems?

    (a) If you are a service agent, the initiating official must send 
you a correction notice before starting a PIE proceeding.
    (b) The correction notice identifies the specific areas in which you 
must come into compliance in order to avoid being subject to a PIE 
proceeding.
    (c) If you make and document changes needed to come into compliance 
in the areas listed in the correction notice to the satisfaction of the 
initiating official within 60 days of the date you receive the notice, 
the initiating official does not start a PIE proceeding. The initiating 
official may conduct appropriate fact finding to verify that you have 
made and maintained satisfactory corrections. When he or she is 
satisfied that you are in compliance, the initiating official sends you 
a notice that the matter is concluded.



Sec.  40.375  How does the initiating official start a PIE proceeding?

    (a) As a service agent, if your compliance matter is not correctable 
(see Sec.  40.373(a)), or if have not resolved compliance matters as 
provided in Sec.  40.373(c), the initiating official starts a PIE 
proceeding by sending you a notice of proposed exclusion (NOPE). The 
NOPE contains the initiating official's

[[Page 683]]

recommendations concerning the issuance of a PIE, but it is not a 
decision by the Department to issue a PIE.
    (b) The NOPE includes the following information:
    (1) A statement that the initiating official is recommending that 
the Department issue a PIE concerning you;
    (2) The factual basis for the initiating official's belief that you 
are not providing drug and/or alcohol testing services to DOT-regulated 
employers consistent with the requirements of this part or are in 
serious noncompliance with a DOT agency drug and alcohol regulation;
    (3) The factual basis for the initiating official's belief that your 
noncompliance has not been or cannot be corrected;
    (4) The initiating official's recommendation for the scope of the 
PIE;
    (5) The initiating official's recommendation for the duration of the 
PIE; and
    (6) A statement that you may contest the issuance of the proposed 
PIE, as provided in Sec.  40.379.
    (c) The initiating official sends a copy of the NOPE to the ODAPC 
Director at the same time he or she sends the NOPE to you.



Sec.  40.377  Who decides whether to issue a PIE?

    (a) The ODAPC Director, or his or her designee, decides whether to 
issue a PIE. If a designee is acting as the decisionmaker, all 
references in this subpart to the Director refer to the designee.
    (b) To ensure his or her impartiality, the Director plays no role in 
the initiating official's determination about whether to start a PIE 
proceeding.
    (c) There is a ``firewall'' between the initiating official and the 
Director. This means that the initiating official and the Director are 
prohibited from having any discussion, contact, or exchange of 
information with one another about the matter, except for documents and 
discussions that are part of the record of the proceeding.



Sec.  40.379  How do you contest the issuance of a PIE?

    (a) If you receive a NOPE, you may contest the issuance of the PIE.
    (b) If you want to contest the proposed PIE, you must provide the 
Director information and argument in opposition to the proposed PIE in 
writing, in person, and/or through a representative. To contest the 
proposed PIE, you must take one or more of the steps listed in this 
paragraph (b) within 30 days after you receive the NOPE.
    (1) You may request that the Director dismiss the proposed PIE 
without further proceedings, on the basis that it does not concern 
serious noncompliance with this part or DOT agency regulations, 
consistent with the Department's policy as stated in Sec.  40.365.
    (2) You may present written information and arguments, consistent 
with the provisions of Sec.  40.381, contesting the proposed PIE.
    (3) You may arrange with the Director for an informal meeting to 
present your information and arguments.
    (c) If you do not take any of the actions listed in paragraph (b) of 
this section within 30 days after you receive the NOPE, the matter 
proceeds as an uncontested case. In this event, the Director makes his 
or her decision based on the record provided by the initiating official 
(i.e., the NOPE and any supporting information or testimony) and any 
additional information the Director obtains.



Sec.  40.381  What information do you present to contest the proposed
issuance of a PIE?

    (a) As a service agent who wants to contest a proposed PIE, you must 
present at least the following information to the Director:
    (1) Specific facts that contradict the statements contained in the 
NOPE (see Sec.  40.375(b)(2) and (3)). A general denial is insufficient 
to raise a genuine dispute over facts material to the issuance of a PIE;
    (2) Identification of any existing, proposed or prior PIE; and
    (3) Identification of your affiliates, if any.
    (b) You may provide any information and arguments you wish 
concerning the proposed issuance, scope and duration of the PIE (see 
Sec.  40.375(b)(4) and (5)).
    (c) You may provide any additional relevant information or arguments

[[Page 684]]

concerning any of the issues in the matter.



Sec.  40.383  What procedures apply if you contest the issuance of a PIE?

    (a) DOT conducts PIE proceedings in a fair and informal manner. The 
Director may use flexible procedures to allow you to present matters in 
opposition. The Director is not required to follow formal rules of 
evidence or procedure in creating the record of the proceeding.
    (b) The Director will consider any information or argument he or she 
determines to be relevant to the decision on the matter.
    (c) You may submit any documentary evidence you want the Director to 
consider. In addition, if you have arranged an informal meeting with the 
Director, you may present witnesses and confront any person the 
initiating official presents as a witness against you.
    (d) In cases where there are material factual issues in dispute, the 
Director or his or her designee may conduct additional fact-finding.
    (e) If you have arranged a meeting with the Director, the Director 
will make a transcribed record of the meeting available to you on your 
request. You must pay the cost of transcribing and copying the meeting 
record.



Sec.  40.385  Who bears the burden of proof in a PIE proceeding?

    (a) As the proponent of issuing a PIE, the initiating official bears 
the burden of proof.
    (b) This burden is to demonstrate, by a preponderance of the 
evidence, that the service agent was in serious noncompliance with the 
requirements of this part for drug and/or alcohol testing-related 
services or with the requirements of another DOT agency drug and alcohol 
testing regulation.



Sec.  40.387  What matters does the Director decide concerning a
proposed PIE?

    (a) Following the service agent's response (see Sec.  40.379(b)) or, 
if no response is received, after 30 days have passed from the date on 
which the service agent received the NOPE, the Director may take one of 
the following steps:
    (1) In response to a request from the service agent (see Sec.  
40.379(b)(1)) or on his or her own motion, the Director may dismiss a 
PIE proceeding if he or she determines that it does not concern serious 
noncompliance with this part or DOT agency regulations, consistent with 
the Department's policy as stated in Sec.  40.365.
    (i) If the Director dismisses a proposed PIE under this paragraph 
(a), the action is closed with respect to the noncompliance alleged in 
the NOPE.
    (ii) The Department may initiate a new PIE proceeding against you on 
the basis of different or subsequent conduct that is in noncompliance 
with this part or other DOT drug and alcohol testing rules.
    (2) If the Director determines that the initiating official's 
submission does not have complete information needed for a decision, the 
Director may remand the matter to the initiating official. The 
initiating official may resubmit the matter to the Director when the 
needed information is complete. If the basis for the proposed PIE has 
changed, the initiating official must send an amended NOPE to the 
service agent.
    (b) The Director makes determinations concerning the following 
matters in any PIE proceeding that he or she decides on the merits:
    (1) Any material facts that are in dispute;
    (2) Whether the facts support issuing a PIE;
    (3) The scope of any PIE that is issued; and
    (4) The duration of any PIE that is issued.



Sec.  40.389  What factors may the Director consider?

    This section lists examples of the kind of mitigating and 
aggravating factors that the Director may consider in determining 
whether to issue a PIE concerning you, as well as the scope and duration 
of a PIE. This list is not exhaustive or exclusive. The Director may 
consider other factors if appropriate in the circumstances of a 
particular case. The list of examples follows:

[[Page 685]]

    (a) The actual or potential harm that results or may result from 
your noncompliance;
    (b) The frequency of incidents and/or duration of the noncompliance;
    (c) Whether there is a pattern or prior history of noncompliance;
    (d) Whether the noncompliance was pervasive within your 
organization, including such factors as the following:
    (1) Whether and to what extent your organization planned, initiated, 
or carried out the noncompliance;
    (2) The positions held by individuals involved in the noncompliance, 
and whether your principals tolerated their noncompliance; and
    (3) Whether you had effective standards of conduct and control 
systems (both with respect to your own organization and any contractors 
or affiliates) at the time the noncompliance occurred;
    (e) Whether you have demonstrated an appropriate compliance 
disposition, including such factors as the following:
    (1) Whether you have accepted responsibility for the noncompliance 
and recognize the seriousness of the conduct that led to the cause for 
issuance of the PIE;
    (2) Whether you have cooperated fully with the Department during the 
investigation. The Director may consider when the cooperation began and 
whether you disclosed all pertinent information known to you;
    (3) Whether you have fully investigated the circumstances of the 
noncompliance forming the basis for the PIE and, if so, have made the 
result of the investigation available to the Director;
    (4) Whether you have taken appropriate disciplinary action against 
the individuals responsible for the activity that constitutes the 
grounds for issuance of the PIE; and
    (5) Whether your organization has taken appropriate corrective 
actions or remedial measures, including implementing actions to prevent 
recurrence;
    (f) With respect to noncompliance with a DOT agency regulation, the 
degree to which the noncompliance affects matters common to the DOT drug 
and alcohol testing program;
    (g) Other factors appropriate to the circumstances of the case.



Sec.  40.391  What is the scope of a PIE?

    (a) The scope of a PIE is the Department's determination about the 
divisions, organizational elements, types of services, affiliates, and/
or individuals (including direct employees of a service agent and its 
contractors) to which a PIE applies.
    (b) If, as a service agent, the Department issues a PIE concerning 
you, the PIE applies to all your divisions, organizational elements, and 
types of services that are involved with or affected by the 
noncompliance that forms the factual basis for issuing the PIE.
    (c) In the NOPE (see Sec.  40.375(b)(4)), the initiating official 
sets forth his or her recommendation for the scope of the PIE. The 
proposed scope of the PIE is one of the elements of the proceeding that 
the service agent may contest (see Sec.  40.381(b)) and about which the 
Director makes a decision (see Sec.  40.387(b)(3)).
    (d) In recommending and deciding the scope of the PIE, the 
initiating official and Director, respectively, must take into account 
the provisions of paragraphs (e) through (j) of this section.
    (e) The pervasiveness of the noncompliance within a service agent's 
organization (see Sec.  40.389(d)) is an important consideration in 
determining the scope of a PIE. The appropriate scope of a PIE grows 
broader as the pervasiveness of the noncompliance increases.
    (f) The application of a PIE is not limited to the specific location 
or employer at which the conduct that forms the factual basis for 
issuing the PIE was discovered.
    (g) A PIE applies to your affiliates, if the affiliate is involved 
with or affected by the conduct that forms the factual basis for issuing 
the PIE.
    (h) A PIE applies to individuals who are officers, employees, 
directors, shareholders, partners, or other individuals associated with 
your organization in the following circumstances:
    (1) Conduct forming any part of the factual basis of the PIE 
occurred in connection with the individual's performance of duties by or 
on behalf of your organization; or
    (2) The individual knew of, had reason to know of, approved, or 
acquiesced

[[Page 686]]

in such conduct. The individual's acceptance of benefits derived from 
such conduct is evidence of such knowledge, acquiescence, or approval.
    (i) If a contractor to your organization is solely responsible for 
the conduct that forms the factual basis for a PIE, the PIE does not 
apply to the service agent itself unless the service agent knew or 
should have known about the conduct and did not take action to correct 
it.
    (j) PIEs do not apply to drug and alcohol testing that DOT does not 
regulate.
    (k) The following examples illustrate how the Department intends the 
provisions of this section to work:

    Example 1 to Sec.  40.391. Service Agent P provides a variety of 
drug testing services. P's SAP services are involved in a serious 
violation of this Part 40. However, P's other services fully comply with 
this part, and P's overall management did not plan or concur in the 
noncompliance, which in fact was contrary to P's articulated standards. 
Because the noncompliance was isolated in one area of the organization's 
activities, and did not pervade the entire organization, the scope of 
the PIE could be limited to SAP services.
    Example 2 to Sec.  40.391. Service Agent Q provides a similar 
variety of services. The conduct forming the factual basis for a PIE 
concerns collections for a transit authority. As in Example 1, the 
noncompliance is not pervasive throughout Q's organization. The PIE 
would apply to collections at all locations served by Q, not just the 
particular transit authority or not just in the state in which the 
transit authority is located.
    Example 3 to Sec.  40.391. Service Agent R provides a similar array 
of services. One or more of the following problems exists: R's 
activities in several areas--collections, MROs, SAPs, protecting the 
confidentiality of information--are involved in serious noncompliance; 
DOT determines that R's management knew or should have known about 
serious noncompliance in one or more areas, but management did not take 
timely corrective action; or, in response to an inquiry from DOT 
personnel, R's management refuses to provide information about its 
operations. In each of these three cases, the scope of the PIE would 
include all aspects of R's services.
    Example 4 to Sec.  40.391. Service Agent W provides only one kind of 
service (e.g., laboratory or MRO services). The Department issues a PIE 
concerning these services. Because W only provides this one kind of 
service, the PIE necessarily applies to all its operations.
    Example 5 to Sec.  40.391. Service Agent X, by exercising reasonably 
prudent oversight of its collection contractor, should have known that 
the contractor was making numerous ``fatal flaws'' in tests. 
Alternatively, X received a correction notice pointing out these 
problems in its contractor's collections. In neither case did X take 
action to correct the problem. X, as well as the contractor, would be 
subject to a PIE with respect to collections.
    Example 6 to Sec.  40.391. Service Agent Y could not reasonably have 
known that one of its MROs was regularly failing to interview employees 
before verifying tests positive. When it received a correction notice, Y 
immediately dismissed the erring MRO. In this case, the MRO would be 
subject to a PIE but Y would not.
    Example 7 to Sec.  40.391. The Department issues a PIE with respect 
to Service Agent Z. Z provides services for DOT-regulated transportation 
employers, a Federal agency under the HHS-regulated Federal employee 
testing program, and various private businesses and public agencies that 
DOT does not regulate. The PIE applies only to the DOT-regulated 
transportation employers with respect to their DOT-mandated testing, not 
to the Federal agency or the other public agencies and private 
businesses. The PIE does not prevent the non-DOT regulated entities from 
continuing to use Z's services.



Sec.  40.393  How long does a PIE stay in effect?

    (a) In the NOPE (see Sec.  40.375(b)(5)), the initiating official 
proposes the duration of the PIE. The duration of the PIE is one of the 
elements of the proceeding that the service agent may contest (see Sec.  
40.381(b)) and about which the Director makes a decision (see Sec.  
40.387(b)(4)).
    (b) In deciding upon the duration of the PIE, the Director considers 
the seriousness of the conduct on which the PIE is based and the 
continued need to protect employers and employees from the service 
agent's noncompliance. The Director considers factors such as those 
listed in Sec.  40.389 in making this decision.
    (c) The duration of a PIE will be between one and five years, unless 
the Director reduces its duration under Sec.  40.407.



Sec.  40.395  Can you settle a PIE proceeding?

    At any time before the Director's decision, you and the initiating 
official

[[Page 687]]

can, with the Director's concurrence, settle a PIE proceeding.



Sec.  40.397  When does the Director make a PIE decision?

    The Director makes his or her decision within 60 days of the date 
when the record of a PIE proceeding is complete (including any meeting 
with the Director and any additional fact-finding that is necessary). 
The Director may extend this period for good cause for additional 
periods of up to 30 days.



Sec.  40.399  How does the Department notify service agents of its
decision?

    If you are a service agent involved in a PIE proceeding, the 
Director provides you written notice as soon as he or she makes a PIE 
decision. The notice includes the following elements:
    (a) If the decision is not to issue a PIE, a statement of the 
reasons for the decision, including findings of fact with respect to any 
material factual issues that were in dispute.
    (b) If the decision is to issue a PIE--
    (1) A reference to the NOPE;
    (2) A statement of the reasons for the decision, including findings 
of fact with respect to any material factual issues that were in 
dispute;
    (3) A statement of the scope of the PIE; and
    (4) A statement of the duration of the PIE.



Sec.  40.401  How does the Department notify employers and the public
about a PIE?

    (a) The Department maintains a document called the ``List of 
Excluded Drug and Alcohol Service Agents.'' This document may be found 
on the Department's web site (http://www.transportation.gov/odapc) . You 
may also request a copy of the document from ODAPC.
    (b) When the Director issues a PIE, he or she adds to the List the 
name and address of the service agent, and any other persons or 
organizations, to whom the PIE applies and information about the scope 
and duration of the PIE.
    (c) When a service agent ceases to be subject to a PIE, the Director 
removes this information from the List.
    (d) The Department also publishes a Federal Register notice to 
inform the public on any occasion on which a service agent is added to 
or taken off the List.

[65 FR 79526, Dec. 19, 2000, as amended at 82 FR 52247, Nov. 13, 2017]



Sec.  40.403  Must a service agent notify its clients when the Department
issues a PIE?

    (a) As a service agent, if the Department issues a PIE concerning 
you, you must notify each of your DOT-regulated employer clients, in 
writing, about the issuance, scope, duration, and effect of the PIE. You 
may meet this requirement by sending a copy of the Director's PIE 
decision or by a separate notice. You must send this notice to each 
client within three business days of receiving from the Department the 
notice provided for in Sec.  40.399(b).
    (b) As part of the notice you send under paragraph (a) of this 
section, you must offer to transfer immediately all records pertaining 
to the employer and its employees to the employer or to any other 
service agent the employer designates. You must carry out this transfer 
as soon as the employer requests it.

[65 FR 79526, Dec. 19, 2000, as amended at 66 FR 41955, Aug. 9, 2001]



Sec.  40.405  May the Federal courts review PIE decisions?

    The Director's decision is a final administrative action of the 
Department. Like all final administrative actions of Federal agencies, 
the Director's decision is subject to judicial review under the 
Administrative Procedure Act (5 U.S.C. 551 et. seq).



Sec.  40.407  May a service agent ask to have a PIE reduced or 
terminated?

    (a) Yes, as a service agent concerning whom the Department has 
issued a PIE, you may request that the Director terminate a PIE or 
reduce its duration and/or scope. This process is limited to the issues 
of duration and scope. It is not an appeal or reconsideration of the 
decision to issue the PIE.
    (b) Your request must be in writing and supported with 
documentation.

[[Page 688]]

    (c) You must wait at least nine months from the date on which the 
Director issued the PIE to make this request.
    (d) The initiating official who was the proponent of the PIE may 
provide information and arguments concerning your request to the 
Director.
    (e) If the Director verifies that the sources of your noncompliance 
have been eliminated and that all drug or alcohol testing-related 
services you would provide to DOT-regulated employers will be consistent 
with the requirements of this part, the Director may issue a notice 
terminating or reducing the PIE.



Sec.  40.409  What does the issuance of a PIE mean to transportation
employers?

    (a) As an employer, you are deemed to have notice of the issuance of 
a PIE when it appears on the List mentioned in Sec.  40.401(a) or the 
notice of the PIE appears in the Federal Register as provided in Sec.  
40.401(d). You should check this List to ensure that any service agents 
you are using or planning to use are not subject to a PIE.
    (b) As an employer who is using a service agent concerning whom a 
PIE is issued, you must stop using the services of the service agent no 
later than 90 days after the Department has published the decision in 
the Federal Register or posted it on its web site. You may apply to the 
ODAPC Director for an extension of 30 days if you demonstrate that you 
cannot find a substitute service agent within 90 days.
    (c) Except during the period provided in paragraph (b) of this 
section, you must not, as an employer, use the services of a service 
agent that are covered by a PIE that the Director has issued under this 
subpart. If you do so, you are in violation of the Department's 
regulations and subject to applicable DOT agency sanctions (e.g., civil 
penalties, withholding of Federal financial assistance).
    (d) You also must not obtain drug or alcohol testing services 
through a contractor or affiliate of the service agent to whom the PIE 
applies.

    Example to paragraph (d): Service Agent R was subject to a PIE with 
respect to SAP services. As an employer, not only must you not use R's 
own SAP services, but you also must not use SAP services you arrange 
through R, such as services provided by a subcontractor or affiliate of 
R or a person or organization that receives financial gain from its 
relationship with R.

    (e) This section's prohibition on using the services of a service 
agent concerning which the Director has issued a PIE applies to 
employers in all industries subject to DOT drug and alcohol testing 
regulations.

    Example to paragraph (e): The initiating official for a PIE was the 
FAA drug and alcohol program manager, and the conduct forming the basis 
of the PIE pertained to the aviation industry. As a motor carrier, 
transit authority, pipeline, railroad, or maritime employer, you are 
also prohibited from using the services of the service agent involved in 
connection with the DOT drug and alcohol testing program.

    (f) The issuance of a PIE does not result in the cancellation of 
drug or alcohol tests conducted using the service agent involved before 
the issuance of the Director's decision or up to 90 days following its 
publication in the Federal Register or posting on the Department's web 
site, unless otherwise specified in the Director's PIE decision or the 
Director grants an extension as provided in paragraph (b) of this 
section.

    Example to paragraph (f): The Department issues a PIE concerning 
Service Agent N on September 1. All tests conducted using N's services 
before September 1, and through November 30, are valid for all purposes 
under DOT drug and alcohol testing regulations, assuming they meet all 
other regulatory requirements.



Sec.  40.411  What is the role of the DOT Inspector General's office?

    (a) Any person may bring concerns about waste, fraud, or abuse on 
the part of a service agent to the attention of the DOT Office of 
Inspector General.
    (b) In appropriate cases, the Office of Inspector General may pursue 
criminal or civil remedies against a service agent.
    (c) The Office of Inspector General may provide factual information 
to other DOT officials for use in a PIE proceeding.

[[Page 689]]



Sec.  40.413  How are notices sent to service agents?

    (a) If you are a service agent, DOT sends notices to you, including 
correction notices, notices of proposed exclusion, decision notices, and 
other notices, in any of the ways mentioned in paragraph (b) or (c) of 
this section.
    (b) DOT may send a notice to you, your identified counsel, your 
agent for service of process, or any of your partners, officers, 
directors, owners, or joint venturers to the last known street address, 
fax number, or e-mail address. DOT deems the notice to have been 
received by you if sent to any of these persons.
    (c) DOT considers notices to be received by you--
    (1) When delivered, if DOT mails the notice to the last known street 
address, or five days after we send it if the letter is undeliverable;
    (2) When sent, if DOT sends the notice by fax or five days after we 
send it if the fax is undeliverable; or
    (3) When delivered, if DOT sends the notice by e-mail or five days 
after DOT sends it if the e-mail is undeliverable.





   Sec. Appendix A to Part 40--DOT Standards for Urine Collection Kits

                       The Collection Kit Contents

    1. Collection Container
    a. Single-use container, made of plastic, large enough to easily 
catch and hold at least 55 mL of urine voided from the body.
    b. Must have graduated volume markings clearly noting levels of 45 
mL and above.
    c. Must have a temperature strip providing graduated temperature 
readings 32-38 [deg]C/90-100 [deg]F, that is affixed or can be affixed 
at a proper level on the outside of the collection container. Other 
methodologies (e.g., temperature device built into the wall of the 
container) are acceptable provided the temperature measurement is 
accurate and such that there is no potential for contamination of the 
specimen.
    d. Must be individually wrapped in a sealed plastic bag or shrink 
wrapping; or must have a peelable, sealed lid or other easily visible 
tamper-evident system.
    e. May be made available separately at collection sites to address 
shy bladder situations when several voids may be required to complete 
the testing process.
    2. Plastic Specimen Bottles
    a. Each bottle must be large enough to hold at least 35 mL; or 
alternatively, they may be two distinct sizes of specimen bottles 
provided that the bottle designed to hold the primary specimen holds at 
least 35 mL of urine and the bottle designed to hold the split specimen 
holds at least 20 mL.
    b. Must have screw-on or snap-on caps that prevent seepage of the 
urine from the bottles during shipment.
    c. Must have markings clearly indicating the appropriate levels (30 
mL for the primary specimen and 15 mL for the split) of urine that must 
be poured into the bottles.
    d. Must be designed so that the required tamper-evident bottle seals 
made available on the CCF fit with no damage to the seal when the 
employee initials it nor with the chance that the seal overlap would 
conceal printed information.
    e. Must be wrapped (with caps) together in a sealed plastic bag or 
shrink wrapping separate from the collection container; or must be 
wrapped (with cap) individually in sealed plastic bags or shrink 
wrapping; or must have peelable, sealed lid or other easily visible 
tamper-evident system.
    f. Plastic material must be leach resistant.
    3. Leak-Resistant Plastic Bag
    a. Must have two sealable compartments or pouches which are leak-
resistant; one large enough to hold two specimen bottles and the other 
large enough to hold the CCF paperwork.
    b. The sealing methodology must be such that once the compartments 
are sealed, any tampering or attempts to open either compartment will be 
evident.
    4. Absorbent material
    Each kit must contain enough absorbent material to absorb the entire 
contents of both specimen bottles. Absorbent material must be designed 
to fit inside the leak-resistant plastic bag pouch into which the 
specimen bottles are placed.
    5. Shipping Container
    a. Must be designed to adequately protect the specimen bottles from 
shipment damage in the transport of specimens from the collection site 
to the laboratory (e.g., standard courier box, small cardboard box, 
plastic container).
    b. May be made available separately at collection sites rather than 
being part of an actual kit sent to collection sites.
    c. A shipping container is not necessary if a laboratory courier 
hand-delivers the specimen bottles in the plastic leak-proof bags from 
the collection site to the laboratory.

[[Page 690]]



     Sec. Appendix B to Part 40--Oral Fluid Collection Kit Contents

                     1. Oral Fluid Collection Device

    a. A single device, which can be subdivided in the employee's 
presence into an ``A'' specimen and a ``B'' split specimen bottle 
sufficient for laboratory testing, that is either of the following:
    (1) An oral fluid collection device made to collect a sufficient 
amount of oral fluid to permit an HHS-certified laboratory to analyze 
the specimen(s). For example, a device that directs the oral fluid into 
two separate collection bottles.
    (2) A device that uses buffering solution that collects a specimen 
using a single pad or dual pads joined for insertion together into the 
same region of the mouth, which can be subdivided into two separate 
collection bottles. Such a buffered device may use a diluent (or other 
component, process, or method that modifies the volume of the testable 
specimen). The volume specifications for the device must be consistent 
with those set by HHS.
    b. Must have unit markings or other indicators that demonstrate the 
adequacy of the volume of oral fluid specimen collected.
    c. Must be sufficiently transparent to permit a visual assessment of 
the contents without opening the specimen bottle.
    d. Must be individually packaged in an easily visible tamper-evident 
system.
    e. Must have the device's expiration date on the specimen bottles 
sent to the laboratory (i.e., the shortest expiration date of any 
component).
    f. Must not have components that substantially affect the 
composition of drugs and/or drug metabolites in the oral fluid specimen 
and/or interfere with an accurate analysis of the specimen.
    g. Must maintain the integrity of the specimen during storage and 
transport so the specimen can be tested in an HHS-certified laboratory.
    h. Must be designed so that the required tamper-evident bottle seals 
made available on the CCF fit without concealing the expiration date on 
the bottles, without damage to the seal when the collector dates and the 
employee initials it.
    i. Must be approved by HHS for use by the specific HHS-certified 
laboratory that will test the specimen gathered by this device.

                             2. Instructions

    Must include the manufacturer's instructions within the device's 
packaging. The instructions must provide sufficient detail to allow for 
an error-free collection when the instructions are followed.

                      3. Leak-Resistant Plastic Bag

    a. Must have two sealable compartments or pouches that are leak-
resistant; one large enough to hold two specimen bottles and the other 
large enough to hold the CCF paperwork, as applicable.
    b. The sealing methodology must be such that once the compartments 
are sealed, any tampering or attempts to open either compartment will be 
evident.

                          4. Absorbent Material

    Each kit must contain enough absorbent material to absorb the entire 
contents of both specimen bottles. Absorbent material must be designed 
to fit inside the leak-resistant plastic bag pouch into which the 
specimen bottles are placed.

                          5. Shipping Container

    a. Must be designed to adequately protect the specimen bottles from 
damage during shipment of the specimens from the collection site to the 
laboratory (e.g., standard courier box, small cardboard box, plastic 
container).
    b. May be made available separately at collection sites rather than 
being part of an actual collection device sent to collection sites.
    c. A shipping container is not necessary if a laboratory courier 
hand-delivers the specimen bottles in the leak-resistant plastic bags 
from the collection site to the laboratory.

[88 FR 27651, May 2, 2023]



                  Sec. Appendix C to Part 40 [Reserved]



  Sec. Appendix D to Part 40--DOT Drug Testing Semi-Annual Laboratory 
                           Report to Employers

    The following items are required on each laboratory report:

Reporting Period: (inclusive dates)
Laboratory Identification: (name and address)
Employer Identification: (name; may include Billing Code or ID code)
C/TPA Identification: (where applicable; name and address)

                           A. Urine Specimens

    1. Urine Specimen Results Reported (Total Number) By Test Reason

(a) Pre-employment (number)
(b) Post-Accident (number)
(c) Random (number)
(d) Reasonable Suspicion/Cause (number)
(e) Return-to-Duty (number)
(f) Follow-up (number)
(g) Type of Test Not Noted on CCF (number)

[[Page 691]]

                       2. Urine Specimens Reported

(a) Negative (number)
(b) Negative and Dilute (number)

 3. Urine Specimens Reported as Rejected for Testing (Total Number) by 
                                 Reason

(a) Fatal flaw (number)
(b) Uncorrected Flaw (number)

     4. Urine Specimens Reported as Positive (Total Number) by Drug

(a) Marijuana Metabolite (number)
(b) Cocaine Metabolite (number)
(c) Opioids (number)
(1) Codeine (number)
(2) Morphine (number)
(3) 6-AM (number)
(4) Hydrocodone (number)
(5) Hydromorphone (number)
(6) Oxycodone (number)
(7) Oxymorphone (number)
(d) Phencyclidine (number)
(e) Amphetamines (number)
(1) Amphetamine (number)
(2) Methamphetamine (number)
(3) MDMA (number)
(4) MDA (number)

                      5. Urine Adulterated (Number)

                      6. Urine Substituted (Number)

                    7. Urine Invalid Result (Number)

                         B. Oral Fluid Specimens

  1. Oral Fluid Specimen Results Reported (Total Number) by Test Reason

(a) Pre-employment (number)
(b) Post-Accident (number)
(c) Random (number)
(d) Reasonable Suspicion/Cause (number)
(e) Return-to-Duty (number)
(f) Follow-up (number)
(g) Type of Test Not Noted on CCF (number)

                    2. Oral Fluid Specimens Reported

(a) Negative (number)
(b) Negative and Dilute (number)

3. Oral Fluid Specimens Reported as Rejected for Testing (Total Number) 
                                by Reason

(a) Fatal flaw (number)
(b) Uncorrected Flaw (number)

   4. Oral Fluid Specimens Reported as Positive (Total Number) by Drug

(a) Marijuana (number)
(b) Cocaine and/or Cocaine Metabolite (number)
(c) Opioids (number)
(1) Codeine (number)
(2) Morphine (number)
(3) 6-AM (number)
(4) Hydrocodone (number)
(5) Hydromorphone (number)
(6) Oxycodone (number)
(7) Oxymorphone (number)
(d) Phencyclidine (number)
(e) Amphetamines (number)
(1) Amphetamine (number)
(2) Methamphetamine (number)
(3) MDMA (number)
(4) MDA (number)

                   5. Oral Fluid Adulterated (Number)

                   6. Oral Fluid Substituted (Number)

                  7. Oral Fluid Invalid Result (Number)

[88 FR 27651, May 2, 2023]



 Sec. Appendix E to Part 40--Drug Testing Semi-Annual Laboratory Report 
                                 to DOT

    Mail, fax or email to: U.S. Department of Transportation, Office of 
Drug and Alcohol Policy and Compliance, 1200 New Jersey Avenue SE, 
Washington, DC 20590.
    Fax: (202) 366-3897.
    Email: [email protected].
    The following items are required on each report:

Reporting Period: (inclusive dates)
Laboratory Identification: (name and address)
1. Specimen Type:
--oral fluid or urine
2. DOT agency
--FMCSA, FAA, FRA, FTA, PHMSA, or USCG
3. Test Reason
--Pre-Employment, Random, Reasonable Suspicion/Cause, Post-Accident, 
          Return-to-Duty, Other, and Follow-up
A. DOT Specimen Results Reported (total number)
B. Negative Results Reported (total number)
1. Negative (number)
2. Negative-Dilute (number)
C. Rejected for Testing Results Reported (total number) By Reason
1. Fatal flaw (number)
2. Uncorrected Flaw (number)
D. Positive Results Reported (total number) By Drug
1. Marijuana or Marijuana Metabolite (number)
2. Cocaine and/or Cocaine Metabolite (number)
3. Opioids (number)
a. Codeine (number)
b. Morphine (number)
c. 6-AM (number)
d. Hydrocodone (number)
e. Hydromorphone (number)
f. Oxycodone (number)
g. Oxymorphone (number)
4. Phencyclidine (number)
5. Amphetamines (number)
a. Amphetamine (number)
b. Methamphetamine (number)

[[Page 692]]

c. MDMA (number)
d. MDA (number)
E. Adulterated Results Reported (total number) By Reason (number)
F. Substituted Results Reported (total number)
G. Invalid Results Reported (total number) By Reason (number)

[88 FR 27652, May 2, 2023]



  Sec. Appendix F to Part 40--Report Format: Split Specimen Failure To 
                                Reconfirm

    Mail, fax, or submit electronically to: U.S. Department of 
Transportation, Office of Drug and Alcohol Policy and Compliance, 1200 
New Jersey Avenue SE, Washington, DC 20590.
    Fax: (202) 366-3897.
    Submit Electronically: https://www.transportation.gov/odapc/mro-
split-specimen-cancellation-notification.
    The following items are required on each report:
    1. MRO name, address, phone number, and fax number.
    2. Collection site name, address, and phone number.
    3. Date of collection.
    4. Specimen I.D. number.
    5. Specimen type.
    6. Laboratory accession number.
    7. Primary specimen laboratory name, address, and phone number.
    8. Date result reported or certified by primary laboratory.
    9. Split specimen laboratory name, address, and phone number.
    10. Date split specimen result reported or certified by split 
specimen laboratory.
    11. Primary specimen results (e.g., name of drug, adulterant) in the 
primary specimen.
    12. Reason for split specimen failure-to-reconfirm result (e.g., 
drug or adulterant not present, specimen invalid, split not collected, 
insufficient volume).
    13. Actions taken by the MRO (e.g., notified employer of failure to 
reconfirm and requirement for re-collection).
    14. Additional information explaining the reason for cancellation.
    15. Name of individual submitting the report (if not the MRO).

[88 FR 27652, May 2, 2023]



      Sec. Appendix G to Part 40--SAP Equivalency Requirements for 
                       Certification Organizations

    1. Experience: Minimum requirements are for three years of full-time 
supervised experience or 6,000 hours of supervised experience as an 
alcoholism and/or drug abuse counselor. The supervision must be provided 
by a licensed or certified practitioner. Supervised experience is 
important if the individual is to be considered a professional in the 
field of alcohol and drug abuse evaluation and counseling.
    2. Education: There exists a requirement of 270 contact hours of 
education and training in alcoholism and/or drug abuse or related 
training. These hours can take the form of formal education, in-service 
training, and professional development courses. Part of any professional 
counselor's development is participation in formal and non-formal 
education opportunities within the field.
    3. Continuing Education: The certified counselor must receive at 
least 40-60 hours of continuing education units (CEU) during each two 
year period. These CEUs are important to the counselor's keeping abreast 
of changes and improvements in the field.
    4. Testing: A passing score on a national test is a requirement. The 
test must accurately measure the application of the knowledge, skills, 
and abilities possessed by the counselor. The test establishes a 
national standard that must be met to practice.
    5. Testing Validity: The certification examination must be reviewed 
by an independent authority for validity (examination reliability and 
relationship to the knowledge, skills, and abilities required by the 
counseling field). The reliability of the exam is paramount if counselor 
attributes are to be accurately measured. The examination passing score 
point must be placed at an appropriate minimal level score as gauged by 
statistically reliable methodology.
    6. Measurable Knowledge Base: The certification process must be 
based upon measurable knowledge possessed by the applicant and verified 
through collateral data and testing. That level of knowledge must be of 
sufficient quantity to ensure a high quality of SAP evaluation and 
referral services.
    7. Measurable Skills Base: The certification process must be based 
upon measurable skills possessed by the applicant and verified through 
collateral data and testing. That level of skills must be of sufficient 
quality to ensure a high quality of SAP evaluation and referral 
services.
    8. Quality Assurance Plan: The certification agency must ensure that 
a means exists to determine that applicant records are verified as being 
true by the certification staff. This is an important check to ensure 
that true information is being accepted by the certifying agency.
    9. Code of Ethics: Certified counselors must pledge to adhere to an 
ethical standard for practice. It must be understood that code 
violations could result in de-certification. These standards are vital 
in maintaining the integrity of practitioners. High ethical standards 
are required to ensure quality of client care and confidentiality of 
client information as well as to guard against inappropriate referral 
practices.

[[Page 693]]

    10. Re-certification Program: Certification is not just a one-time 
event. It is a continuing privilege with continuing requirements. Among 
these are continuing education, continuing state certification, and 
concomitant adherence to the code of ethics. Re-certification serves as 
a protector of client interests by removing poor performers from the 
certified practice.
    11. Fifty State Coverage: Certification must be available to 
qualified counselors in all 50 states and, therefore, the test must be 
available to qualified applicants in all 50 states. Because many 
companies are multi-state operators, consistency in SAP evaluation 
quality and opportunities is paramount. The test need not be given in 
all 50 states but should be accessible to candidates from all states.
    12. National Commission for Certifying Agencies (NCCA) 
Accreditation: Having NCCA accreditation is a means of demonstrating to 
the Department of Transportation that your certification has been 
reviewed by a panel of impartial experts that have determined that your 
examination(s) has met stringent and appropriate testing standards.

[65 FR 79526, Dec. 19, 2000. Redesignated at 88 FR 27651, May 2, 2023]



Sec. Appendix H to Part 40--Drug and Alcohol Testing Information that C/
                     TPAs May Transmit to Employers

    1. If you are a C/TPA, you may, acting as an intermediary, transmit 
the information in the following sections of this part to the DER for an 
employer, if the employer chooses to have you do so. These are the only 
items that you are permitted to transmit to the employer as an 
intermediary. The use of C/TPA intermediaries is prohibited in all other 
cases, such as transmission of laboratory drug test results to MROs, the 
transmission of medical information from MROs to employers, the 
transmission of SAP reports to employers, the transmission of positive 
alcohol test results, and the transmission of medical information from 
MROs to employers.
    2. In every case, you must ensure that, in transmitting the 
information, you meet all requirements (e.g., concerning confidentiality 
and timing) that would apply if the party originating the information 
(e.g., an MRO or collector) sent the information directly to the 
employer. For example, if you transmit MROs' drug testing results to 
DERs, you must transmit each drug test result to the DER in compliance 
with the requirements for MROs set forth in Sec.  40.167.

                        Drug Testing Information

Sec.  40.25: Previous two years' test results
Sec.  40.35: Notice to collectors of contact information for DER
Sec.  40.61(a): Notification to DER that an employee is a ``no show'' 
          for a drug test
Sec.  40.63(e): Notification to DER of a collection under direct 
          observation
Sec.  40.65(b)(6) and (7) and (c)(2) and (3): Notification to DER of a 
          refusal to provide a specimen or an insufficient specimen
Sec.  40.73(a)(9): Transmission of CCF copies to DER (However, MRO copy 
          of CCF must be sent by collector directly to the MRO, not 
          through the C/TPA.)
Sec.  40.111(a): Transmission of laboratory statistical report to 
          employer
Sec.  40.127(f): Report of test results to DER
Sec. Sec.  40.127(g), 40.129(d), 40.159(a)(4)(ii); 40.161(b): Reports to 
          DER that test is cancelled
Sec.  40.129(e): Report of test results to DER
Sec.  40.129(g)(1): Report to DER of confirmed positive test in stand-
          down situation
Sec. Sec.  40.149(b): Report to DER of changed test result
Sec.  40.155(a): Report to DER of dilute specimen
Sec.  40.167(b) and (c): Reports of test results to DER
Sec.  40.187(a)-(e) Reports to DER concerning the reconfirmation of 
          tests
Sec.  40.191(d): Notice to DER concerning refusals to test
Sec.  40.193(b)(3): Notification to DER of refusal in shy bladder 
          situation
Sec.  40.193(b)(4): Notification to DER of insufficient specimen
Sec.  40.193(b)(5): Transmission of CCF copies to DER (not to MRO)
Sec.  40.199: Report to DER of cancelled test and direction to DER for 
          additional collection
Sec.  40.201: Report to DER of cancelled test

                       Alcohol Testing Information

Sec.  40.215: Notice to BATs and STTs of contact information for DER
Sec.  40.241(b)(1): Notification to DER that an employee is a ``no 
          show'' for an alcohol test
Sec.  40.247(a)(2): Transmission of alcohol screening test results only 
          when the test result is less than 0.02
Sec.  40.255(a)(4): Transmission of alcohol confirmation test results 
          only when the test result is less than 0.02
Sec.  40.263(a)(3) and 263(b)(3): Notification of insufficient saliva 
          and failure to provide sufficient amount of breath

[65 FR 79526, Dec. 19, 2000, as amended at 66 FR 41955, Aug. 9, 2001; 73 
FR 35975, June 25, 2008. Redesignated and amended at 88 FR 27651, 27652, 
May 2, 2023]

[[Page 694]]

               Appendix I to Part 40--Alcohol Testing Form

    The following form is the alcohol testing form required for use in 
the DOT alcohol testing program beginning January 1, 2011. Employers are 
authorized to use the form effective February 25, 2010.
[GRAPHIC] [TIFF OMITTED] TR25FE10.001


[[Page 695]]


[GRAPHIC] [TIFF OMITTED] TR25FE10.002


[[Page 696]]


[GRAPHIC] [TIFF OMITTED] TR25FE10.003


[[Page 697]]


[GRAPHIC] [TIFF OMITTED] TR25FE10.004


[[Page 698]]


[GRAPHIC] [TIFF OMITTED] TR25FE10.005


[75 FR 8529, Feb. 25, 2010, as amended at 75 FR 13009, Mar. 18, 2010; 75 
FR 38423, July 2, 2010. Redesignated at 88 FR 27651, May 2, 2023]

[[Page 699]]



  Sec. Appendix J to Part 40--DOT Drug and Alcohol Testing Management 
              Information System (MIS) Data Collection Form

    The following form is the MIS Data Collection form required for use 
to report calendar year MIS data. The instructions for this form are 
found at https://www.transportation.gov/odapc.
[GRAPHIC] [TIFF OMITTED] TR23AP19.024


[[Page 700]]


[GRAPHIC] [TIFF OMITTED] TR23AP19.025


[84 FR 16773, Apr. 23, 2019. Redesignated at 88 FR 27651, May 2, 2023]



PART 41_SEISMIC SAFETY--Table of Contents



Sec.
41.100 Purpose and applicability.
41.105 Definitions.
41.110 New DOT owned buildings and additions to buildings.
41.115 New buildings to be leased for DOT occupancy.
41.117 Buildings built with Federal assistance.
41.119 DOT regulated buildings.
41.120 Acceptable model codes.
41.125 Judicial review.

    Authority: 42 U.S.C. 7701 et seq.; 49 U.S.C. 322; E.O. 12699, 3 CFR, 
1990 Comp., p. 269.

    Source: 58 FR 32871, June 14, 1993, unless otherwise noted.



Sec.  41.100  Purpose and applicability.

    (a) This part implements the provisions of 49 U.S.C. 7701 et seq. 
and Executive Order (E.O.) 12699, ``Seismic Safety of Federal and 
Federally-Assisted or Regulated New Building Construction'' (3 CFR, 1990 
Comp., p. 269). Under the Executive Order the DOT is given the 
responsibility for developing and implementing its own mission-
appropriate and cost-effective regulations governing seismic safety.
    (b) This part applies to new DOT owned buildings and to new DOT 
leased, assisted and regulated buildings. The purpose of this part is to 
reduce risk to lives of the building occupants, improve the capabilities 
of essential buildings to function during or after an earthquake, and to 
reduce earthquake losses of public buildings and investments.
    (c) This part may be further implemented by the DOT Operating 
Administrations.



Sec.  41.105  Definitions.

    As used in this part--
    Operating Administration includes the Office of the Secretary.
    DOT means the U.S. Department of Transportation.



Sec.  41.110  New DOT owned buildings and additions to buildings.

    (a) DOT Operating Administrations responsible for the design and 
construction of new DOT Federally owned buildings will ensure that each 
building is designed and constructed in accord with the seismic design 
and construction standards set out in Sec.  41.120 of this part.
    (b) This section pertains to all building projects for which 
development of detailed plans and specifications was initiated after 
January 5, 1990. It applies to additions to existing buildings as well 
as to new buildings. It applies worldwide.
    (c) For DOT Federally owned buildings, a certification of compliance 
with the seismic design and construction requirements of this part is 
required

[[Page 701]]

prior to the acceptance of the building. Such statements of compliance 
may include the engineer's and architect's authenticated verifications 
of seismic design codes, standards, and practices used in the design and 
construction of the building, construction observation reports, local or 
state building department plan review documents, or other documents 
deemed appropriate by the DOT Operating Administration.



Sec.  41.115  New buildings to be leased for DOT occupancy.

    (a) DOT Operating Administrations responsible for the design and 
construction of new buildings to be leased for DOT occupancy or use will 
ensure that each building is designed and constructed in accord with the 
seismic design and construction standards set out in Sec.  41.120 of 
this part.
    (b) This section pertains to all new building projects for which the 
agreement covering development of detailed plans and specifications was 
executed after January 5, 1990.
    (c) For new Federally leased buildings, a certification of 
compliance with the seismic design and construction requirements of this 
part is required prior to the acceptance of the building. Such 
statements of compliance may include the engineer's and architect's 
authenticated verifications of seismic design codes, standards, and 
practices used in the design and construction of the building, 
construction observation reports, local or state building department 
plan review documents, or other documents deemed appropriate by the DOT 
Operating Administration.



Sec.  41.117  Buildings built with Federal assistance.

    (a) Each DOT Operating Administration assisting in the financing, 
through Federal grants or loans, or guaranteeing the financing, through 
loan or mortgage insurance programs, of newly constructed buildings will 
ensure that any building constructed with such assistance is constructed 
in accord with seismic standards set out in Sec.  41.120 of this part.
    (b) This section applies to new buildings and additions to existing 
buildings financed in whole or in part through Federal grants or loans 
administered by DOT Operating Administrations, or through guaranteed 
financing through loan or mortgage insurance programs administered by 
DOT Operating Administrations.
    (c) Any building constructed with Federal financial assistance, 
after July 14, 1993 must be designed and constructed in accord with 
seismic standards approved by the DOT operating Administration under 
Sec.  41.120 of this part in order to be eligible for Federal financial 
assistance.
    (d) For buildings built with Federal financial assistance, a 
certification of compliance with the seismic design and construction 
requirements of this part is required prior to the furnishing of such 
assistance. Such statements of compliance may include the engineer's and 
architect's authenticated verifications of seismic design codes, 
standards, and practices used in the design and construction of the 
building, construction observation reports, local or state building 
department plan review documents, or other documents deemed appropriate 
by the DOT Operating Administration.



Sec.  41.119  DOT regulated buildings.

    (a) Each DOT Operating Administration with responsibility for 
regulating the structural safety of buildings and additions to existing 
buildings will ensure that each DOT regulated building is designed and 
constructed in accord with seismic design and construction standards as 
provided by this part.
    (b) This section pertains to all new building projects for which 
development of detailed plans and specifications begin after July 14, 
1993.
    (c) Any building for which a DOT Operating Administration 
responsible for regulating the structural safety must comply with the 
seismic design and construction standards in this part.
    (d) For DOT regulated buildings a certification of compliance with 
the seismic design and construction requirements of this part is 
required prior to the acceptance of the building. Such statements of 
compliance may include the engineer's and architect's authenticated 
verification of seismic design codes, standards, and practices used in 
the design and construction of the building, construction observation

[[Page 702]]

reports, local or state building department plan review documents, or 
other documents deemed appropriate by the DOT Operating Administration.



Sec.  41.120  Acceptable model codes.

    (a) This section describes the standards that must be used to meet 
the seismic design and construction requirements of this part.
    (b)(1) The following are model codes which have been found to 
provide a level of seismic safety substantially equivalent to that 
provided by use of the 1988 National Earthquake Hazards Reduction 
Program (NEHRP) Recommended Provisions (Copies are available from the 
Office of Earthquakes and Natural Hazards, Federal Emergency Management 
Agency, 500 C Street, SW., Washington, DC 20472.):
    (i) The 1991 International Conference of Building Officials (ICBO) 
Uniform Building Code, published by the International Conference of 
Building Officials, 5360 South Workman Mill Rd., Whittier, Cal. 90601;
    (ii) The 1992 Supplement to the Building Officials and Code 
Administrators International (BOCA) National Building Code, published by 
the Building Officials and Code Administrators, 4051 West Flossmoor Rd., 
Country Club Hills, Ill. 60478-5795; and
    (iii) The 1992 Amendments to the Southern Building Code Congress 
(SBCC) Standard Building Code, published by the Southern Building Code 
Congress International, 900 Montclair Rd., Birmingham, Ala. 35213-1206.
    (2) Versions of the NEHRP seismic maps have been adopted along with 
the NEHRP Recommended Provisions into the BOCA National and SBCC 
Standard building codes. The seismic zone map in the ICBO Uniform 
Building Code is also based on one of the USGS maps of horizontal ground 
acceleration. However, the ICBO map should be used only with the ICBO 
code. Also, it is not appropriate to use the NEHRP maps with the ICBO 
Uniform Building Code, because the design requirements of building codes 
are keyed to the numerical values of the map they reference.
    (c) Revisions to the model codes listed in paragraph (b) of this 
section that are substantially equivalent to or exceed the then current 
or immediately preceding edition of the NEHRP recommended provisions, as 
it is updated, may be approved by a DOT Operating Administration to meet 
the requirements in this part.
    (d) State, county, local, or other jurisdictional building 
ordinances adopting and enforcing the model codes, listed in paragraph 
(b) of this section, in their entirety, without significant revisions or 
changes in the direction of less seismic safety, meet the requirements 
in this part. For ordinances that do not adopt the model codes listed in 
paragraph (b) of this section, substantial equivalency of the ordinances 
to the seismic safety level contained in the NEHRP recommended 
provisions must be determined by the DOT Operating Administration before 
the ordinances may be used to meet the requirements of this part.
    (e) DOT Operating Administrations that, as of January 5, 1990, 
required seismic safety levels higher than those imposed by this part in 
new building construction programs will continue to maintain such levels 
in force.
    (f) Emergencies. Nothing in this part applies to assistance provided 
for emergency work or for assistance essential to save lives and protect 
property and public health and safety performed pursuant to sections 
402, 403, 502, and 503 of the Robert T. Stafford Disaster Relief and 
Emergency Assistance Act (Stafford Act), 42 U.S.C. 5170a, 5170b, 5192, 
and 5193, or for temporary housing assistance programs and individual 
and family grants performed pursuant to Sections 408 and 411 of the 
Stafford Act, 42 U.S.C. 5174 and 5178. However, this part applies to 
other provisions of the Stafford Act after a Presidentially declared 
major disaster or emergency when assistance actions involve new 
construction or total replacement of a building.



Sec.  41.125  Judicial review.

    Nothing in this part is intended to create any right or benefit, 
substantive or procedural, enforceable at law by a party against the 
DOT, its Operating Administrations, its officers, or any person.

[[Page 703]]



PART 71_STANDARD TIME ZONE BOUNDARIES--Table of Contents



Sec.
71.1 Limits defined; exceptions authorized for certain rail operating 
          purposes only.
71.2 Annual advancement of standard time.
71.3 Atlantic zone.
71.4 Eastern zone.
71.5 Boundary line between eastern and central zones.
71.6 Central zone.
71.7 Boundary line between central and mountain zones.
71.8 Mountain zone.
71.9 Boundary line between mountain and Pacific zones.
71.10 Pacific zone.
71.11 Alaska zone.
71.12 Hawaii-Aleutian zone.
71.13 Samoa zone.
71.14 Chamorro Zone.

    Authority: Secs. 1-4, 40 Stat. 450, as amended; sec. 1, 41 Stat. 
1446, as amended; secs. 2-7, 80 Stat. 107, as amended; 100 Stat. 764; 
Act of Mar. 19, 1918, as amended by the Uniform Time Act of 1966 and 
Pub. L. 97-449, 15 U.S.C. 260-267; Pub. L. 99-359; Pub. L. 106-564, 15 
U.S.C. 263, 114 Stat. 2811; 49 CFR 1.59(a), unless otherwise noted.

    Source: Amdt. 71-11, 35 FR 12318, Aug. 1, 1970, unless otherwise 
noted.



Sec.  71.1  Limits defined; exceptions authorized for certain rail
operating purposes only.

    (a) This part prescribes the geographic limits of each of the nine 
standard time zones established by section 1 of the Standard Time Act, 
as amended by section 4 of the Uniform Time Act of 1966 (15 U.S.C. 261). 
The Uniform Time Act also contains lists of operating exceptions granted 
for specified rail carriers, whose operations cross the time zone 
boundaries prescribed by this part. (15 U.S.C. 265).
    (b) Any rail carrier whose operations cross a time zone boundary 
prescribed by this part may apply for an operating exception to the 
General Counsel, Department of Transportation, Washington, DC 20590. 
However, each rail carrier for which an operating exception is granted 
shall, in its advertisements, time cards, station bulletin boards, and 
other publications, show arrival and departure times in terms of the 
standard time for the place concerned.
    (c) The time zones established by the Standard Time Zone Act, as 
amended by the Uniform Time Act of 1966, are Atlantic, eastern, central, 
mountain, Pacific, Alaska, Hawaii-Aleutian, Samoa, and Chamorro.

[Amdt. 71-11, 35 FR 12318, Aug. 1, 1970, as amended by Amdt. 71-21, 52 
FR 41631, Nov. 18, 1986; 78 FR 15884, Mar. 13, 2013]



Sec.  71.2  Annual advancement of standard time.

    (a) The Uniform Time Act of 1966 (15 U.S.C. 260a(a)), as amended, 
requires that the standard time of each State observing Daylight Saving 
Time shall be advanced 1 hour beginning at 2 a.m. on the second Sunday 
in March of each year and ending at 2 a.m. on the first Sunday in 
November. This advanced time shall be the standard time of each zone 
during such period. The Act authorizes any State to exempt itself from 
this requirement. States in two or more time zones may exempt either the 
entire State or may exempt the entire area of the State lying within 
either time zone.
    (b) Section 3(b) of the Uniform Time Act of 1966 (15 U.S.C. 260a(b)) 
provides that ``it is the express intent of Congress * * * to supersede 
any and all laws of the States or political subdivisions thereof insofar 
as they may now or hereafter provide for advances in time or changeover 
dates different from those specified in [section 3(a) of that Act]'', 
which are those specified in paragraph (a) of this section.

[Amdt. 71-11, 35 FR 12318, Aug. 1, 1970, as amended by Amdt. 71-21, 52 
FR 41631, Nov. 18, 1986; 78 FR 15885, Mar. 13, 2013]



Sec.  71.3  Atlantic zone.

    The first zone, the Atlantic standard time zone, includes that part 
of the United States that is between 52[deg]30[sec] W. longitude and 
67[deg]30[sec] W. longitude and that part of the Commonwealth of Puerto 
Rico that is west of 67[deg]30[sec] W. longitude, but does not include 
any part of the State of Maine.



Sec.  71.4  Eastern zone.

    The second zone, the eastern standard time zone, includes that part 
of the United States that is west of 67[deg]30[sec] W. longitude and 
east of the boundary line described in Sec.  71.5, and includes all of

[[Page 704]]

the State of Maine, but does not include any part of the Commonwealth of 
Puerto Rico.



Sec.  71.5  Boundary line between eastern and central zones.

    (a) Minnesota-Michigan-Wisconsin. From the junction of the western 
boundary of the State of Michigan with the boundary between the United 
States and Canada northerly and easterly along the west line of Gogebic 
County to the west line of Ontonagon County; thence south along the west 
line of Ontonagon County to the north line of Gogebic County; thence 
southerly and easterly along the north line of Gogebic County to the 
west line of Iron County; thence north along the west line of Iron 
County to the north line of Iron County; thence east along the north 
line of Iron County to the east line of Iron County; thence south along 
the east line of Iron County to the north line of Dickinson County; 
thence east along the north line of Dickinson County to the east line of 
Dickinson County; thence south along the east line of Dickinson County 
to the north line of Menominee County; thence east along the north line 
of Menominee County to the east line of Menominee County; thence 
southerly and easterly along the east line of Menominee County to Lake 
Michigan; thence east to the western boundary of the State of Michigan; 
thence southerly and easterly along the western boundary of the State of 
Michigan to a point in the middle of Lake Michigan opposite the main 
channel of Green Bay; thence southerly along the western boundary of the 
State of Michigan to its junction with the southern boundary thereof and 
the northern boundary of the State of Indiana.
    (b) Indiana-Illinois. From the junction of the western boundary of 
the State of Michigan with the northern boundary of the State of Indiana 
easterly along the northern boundary of the State of Indiana to the east 
line of LaPorte County; thence southerly along the east line of LaPorte 
County to the north line of Starke County; thence east along the north 
line of Starke County to the west line of Marshall County; thence south 
along the west line of Marshall County; thence west along the north line 
of Pulaski County to the east line of Jasper County; thence south along 
the east line of Jasper County to the south line of Jasper County; 
thence west along the south lines of Jasper and Newton Counties to the 
western boundary of the State of Indiana; thence south along the western 
boundary of the State of Indiana to the north line of Gibson County; 
thence easterly and northerly along the north line of Gibson County to 
the west line of Pike County; thence south along the west line of Pike 
County to the north line of Warrick County; thence east along the north 
line of Warrick and Spencer Counties to the west line of Perry County; 
thence easterly and southerly along the north and east line of Perry 
County to the Indiana-Kentucky boundary.
    (c) Kentucky. From the junction of the east line of Perry County, 
Ind., with the Indiana-Kentucky boundary easterly along that boundary to 
the west line of Meade County, Ky.; thence southeasterly and 
southwesterly along the west lines of Meade and Hardin Counties to the 
southwest corner of Hardin County; thence along the south lines of 
Hardin and Larue Counties to the northwest corner of Taylor County; 
thence southeasterly along the west (southwest) lines of Taylor County 
and northeasterly along the east (southeast) line of Taylor County to 
the west line of Casey County; and thence southerly along the west and 
south lines of Casey and Pulaski Counties to the intersection with the 
western boundary of Wayne County; and then south along the western 
boundary of Wayne County to the Kentucky-Tennessee boundary.
    (d) Tennessee. From the junction of the west line of McCreary 
County, Ky., with the Kentucky-Tennessee boundary westerly along that 
boundary to the west line of Scott County, Tenn.; thence southerly along 
the west line of Scott County, the north and west lines of Morgan 
County, and the north line of Roane County to the north line of Rhea 
County; thence northwesterly along the north line of Rhea County; and 
thence southwesterly along the west lines of Rhea and Hamilton Counties 
to the Tennessee-Georgia boundary.

[[Page 705]]

    (e) Georgia-Alabama. From the junction of the west line of Hamilton 
County, Tenn., with the Tennessee-Georgia boundary westerly along that 
boundary to its junction with the Alabama-Georgia boundary; thence 
southerly along that boundary and the Florida-Georgia boundary to the 
southwest corner of the State of Georgia.
    (f) Florida. From the southwest corner of the State of Georgia to 
the midpoint of the Apalachicola River on the downstream side of Jim 
Woodruff Dam; thence southerly along the middle of the main channel of 
the Apalachicola River to its intersection with the Jackson River; 
thence westerly along the center of the Jackson River to its 
intersection with the Intracoastal Waterway; thence westerly along the 
center of the Intracoastal Waterway to the west line of Gulf County; 
thence southerly along the west line of Gulf County to the Gulf of 
Mexico.
    (g) [Reserved]
    (h) Municipalities on boundary line. All municipalities located upon 
the zone boundary line described in this section are in the central 
standard time zone.

[Amdt. 71-11, 35 FR 12318, Aug. 1, 1970, as amended by Amdt. 71-12, 37 
FR 11972, June 16, 1972; Amdt. 71-13, 38 FR 9229, Apr. 12, 1973; Amdt. 
71-14, 38 FR 13725, May 25, 1973; Amdt. 77-13, 42 FR 56610, Oct. 27, 
1977; Amdt. 91-17, 56 FR 52003, Oct. 17, 1991; 65 FR 50158, Aug. 17, 
2000; 71 FR 3245, Jan. 20, 2006; 72 FR 6177, Feb. 9, 2007; 72 FR 54377, 
Sept. 25, 2007]



Sec.  71.6  Central zone.

    (a) Central zone in general. The third zone, the central standard 
time zone, includes that part of the United States that is west of the 
boundary line between the eastern and central standard time zones 
described in Sec.  71.5 and east of the boundary line between the 
central and mountain standard time zones described in Sec.  71.7.
    (b) Specified rail carrier exemptions. The boundary line described 
in Sec.  71.7 will not apply to the list of rail carriers in this 
subsection. These carriers will have the following changing points 
between the central and mountain time zones. The Chicago, Rock Island 
and Gulf Railway Company and the Chicago, Rock Island and Pacific 
Railway Company may use Tucumcari, New Mexico, as the point at which 
they change from central to mountain time and vice versa; the Colorado 
Southern and Fort Worth and Denver City Railway Companies may use 
Sixela, New Mexico, as such changing point; the Atchison, Topeka and 
Santa Fe Railway Company and other branches of the Santa Fe system may 
use Clovis, New Mexico, as such changing point, and those railways 
running into or through El Paso, Texas, may use El Paso as such point.

[78 FR 15885, Mar. 13, 2013]



Sec.  71.7  Boundary line between central and mountain zones.

    (a) Montana-North Dakota. Beginning at the junction of the Montana-
North Dakota boundary with the boundary of the United States and Canada 
southerly along the Montana-North Dakota boundary to the Missouri River; 
thence southerly and easterly along the middle of that river to the 
midpoint of the confluence of the Missouri and Yellowstone Rivers; 
thence southerly and easterly along the middle of the Yellowstone River 
to the north boundary of T. 150 N., R. 104 W.; thence east to the 
northwest corner of T. 150 N., R. 102 W.; thence south to the southwest 
corner of T. 149 N., R. 102 W.; thence east to the northwest corner of 
T. 148 N., R. 102 W.; thence south to the northwest corner of 147 N., R. 
102 W.; thence east to the southwest corner of T. 148 N., R. 101 W.; 
thence south to the middle of the Little Missouri; thence easterly and 
northerly along the middle of that river to the midpoint of its 
confluence with the Missouri River; thence southerly and easterly along 
the middle of the Missouri River to the midpoint of its confluence with 
the western land boundary of Mercer County; thence south along the 
western county line of Mercer County to the southwest boundary; thence 
east and south along the southwestern county boundary of Morton County 
to the intersection with the boundary with Sioux County; thence west and 
south along the northern boundary of Sioux County to the center of State 
Highway 31; thence south along the center of State Highway 31 to the 
State border with South Dakota; thence east along the southern boundary 
of Sioux County in the middle of the Missouri River.

[[Page 706]]

    (b) South Dakota. From the junction of the North Dakota-South Dakota 
boundary with the Missouri River southerly along the main channel of 
that river to the crossing of the original Chicago & North Western 
Railway near Pierre; thence southwesterly to the northern boundary of 
Jones County at the northeast corner of the NE 1, Sec. 6, T. 2 N., R. 30 
E.; thence west along the northern boundary of Jones County; thence 
south along the western boundaries of Jones, Mellette and Todd Counties 
to the South Dakota-Nebraska boundary.
    (c) Nebraska. From the junction of the west line of Tripp County, 
South Dakota with the South Dakota-Nebraska boundary west along that 
boundary to the west line of R. 30 W.; thence south along the range line 
between Rs. 30 and 31 W. to the southwest corner of sec. 19, T. 33 N., 
R. 30 W.; thence easterly along section lines to the northeast corner of 
sec. 29, T. 33 N., R. 30 W.; thence southerly along section lines with 
their offsets to the northeast corner of sec. 17, T. 32 N., R. 30 W.; 
thence westerly along section lines to the northwest corner of sec. 18, 
T. 32 N., R. 30 W.; thence southerly along the range line to the 
southwest corner of T. 31 N., R. 30 W.; thence easterly along the 
township line to the northeast corner of T. 30 N., R. 30 W.; thence 
southerly along the range line to the southwest corner of T. 29 N., R. 
29 W.; thence westerly along the township line to the northwest corner 
of sec. 4, T. 28 N., R. 30 W.; thence southerly along section lines to 
the southwest corner of sec. 33, T. 28 N., R. 30 W.; thence easterly 
along the township line to the northeast corner of sec. 4, T. 27 N., R. 
30 W.; thence southerly along section lines to the southwest corner of 
sec. 22, T. 26 N., R. 30 W.; thence easterly along section lines to the 
southeast corner of sec. 24, T. 26 N., R. 30 W.; thence southerly along 
the range line to the north line of Thomas County; thence westerly along 
the north line of Thomas County to the west line of Thomas County; 
thence south along the west line of Thomas County to the north line of 
McPherson County; thence west along the north line of McPherson County 
to the west line of McPherson County; thence south along the west line 
of McPherson County to the north line of Keith County; thence east along 
the north line of Keith County to the west line of Lincoln County; 
thence south along the west line of Lincoln County to the north line of 
Hayes County; thence west along the north lines of Hayes County to the 
west line of Hayes County; thence south along the west line of Hayes and 
Hitchcock Counties to the Nebraska-Kansas boundary.
    (d) Kansas-Colorado. From the junction of the west line of Hitchcock 
County, Nebraska, with the Nebraska-Kansas boundary westerly along that 
boundary to the northwest corner of the State of Kansas; thence 
southerly along Kansas-Colorado boundary to the north line of Sherman 
County, Kansas; thence easterly along the north line of Sherman County 
to the east line of Sherman County; thence southerly along the east line 
of Sherman County to the north line of Logan County; thence westerly 
along the north line of Logan County to the east line of Wallace County; 
thence southerly along the east line of Wallace County to the north line 
Wichita County; thence westerly along the north line of Wichita County; 
thence westerly along the north line of Wichita County to the east line 
of Greeley County; thence southerly along the east lines of Greeley 
County and Hamilton Counties; thence westerly along the south line of 
Hamilton County to the Kansas-Colorado boundary; thence southerly along 
the Kansas Colorado boundary to the junction of that boundary with the 
north boundary of the State of Oklahoma.
    (e) Oklahoma-Texas-New Mexico. From the junction of the Kansas-
Colorado boundary with the northern boundary of the State of Oklahoma 
westerly along the Colorado-Oklahoma boundary to the northwest corner of 
the State of Oklahoma; thence southerly along the west boundary of the 
State of Oklahoma and the west boundary of the State of Texas to the 
southeast corner of the State of New Mexico; thence westerly along the 
Texas-New Mexico boundary to the east line of Hudspeth County, Tex.; 
thence southerly along the east line of Hudspeth

[[Page 707]]

County, Tex., to the boundary between the United States and Mexico.
    (f) [Reserved]
    (g) Municipalities on boundary line. All municipalities located upon 
the zone boundary line described in this section are in the mountain 
standard time zone, except Murdo, S. Dak., which is in the central 
standard time zone.

[Amdt. 71-11, 35 FR 12318, Aug. 1, 1970, as amended by Amdt. 71-14, 38 
FR 13725, May 25, 1973; Amdt. 71-16, 43 FR 42763, Sept. 21, 1978; 55 FR 
30914, July 30, 1990; 57 FR 48339, Oct. 23, 1992; 68 FR 43336, July 22, 
2003; 68 FR 49373, Aug. 18, 2003; 68 FR 61372, Oct. 28, 2003; 75 FR 
60007, Sept. 29, 2010; 78 FR 15885, Mar. 13, 2013]



Sec.  71.8  Mountain zone.

    The fourth zone, the mountain standard time zone, includes that part 
of the United States that is west of the boundary line between the 
central and mountain standard time zones described in Sec.  71.7 and 
east of the boundary line between the mountain and Pacific standard time 
zones described in Sec.  71.9.



Sec.  71.9  Boundary line between mountain and Pacific zones.

    (a) Montana-Idaho-Oregon. From the junction of the Idaho-Montana 
boundary with the boundary between the United States and Canada 
southerly along the Idaho-Montana boundary to the boundary line between 
Idaho County, Idaho, and Lemhi County, Idaho; thence southwesterly along 
the boundary line between those two counties to the main channel of the 
Salmon River; thence westerly along the main channel of the Salmon River 
to the Idaho-Oregon boundary; thence southerly along that boundary to 
the boundary line between Baker County, Oreg., and Malheur County, 
Oreg.; thence westerly along the north line of Malheur County to the 
northwest corner of Malheur County; thence southerly along the west line 
of Malheur County to the southwest corner of T. 35 S., R. 37 E.; thence 
east to the Idaho-Oregon boundary; thence south along that boundary to 
the southwest corner of the State of Idaho; thence easterly along the 
Idaho-Nevada boundary to the northeast corner of the State of Nevada.
    (b) Utah-Nevada-Arizona-California. From the northeast corner of the 
State of Nevada southerly along the Utah-Nevada boundary to the junction 
with the northern border of the City of West Wendover, Nevada. Then 
westward along the northern, western, and southern boundaries of the 
City of West Wendover back to the Utah-Nevada boundary. Then southerly 
along the Utah-Nevada boundary, the Nevada-Arizona boundary, and the 
Arizona-California boundary to the boundary between the United States 
and Mexico.
    (c) [Reserved]
    (d) Municipalities on boundary line. All municipalities located upon 
the zone boundary line described in this section are in the mountain 
standard time zone.

[Amdt. 71-11, 35 FR 12318, Aug. 1, 1970, as amended by Amdt. 71-14, 38 
FR 13725, May 25, 1973; 64 FR 56707, Oct. 21, 1999; 78 FR 15885, Mar. 
13, 2013]



Sec.  71.10  Pacific zone.

    The fifth zone, the Pacific standard time zone, includes that part 
of the continental United States that is west of the boundary line 
between the mountain and Pacific standard time zones described in Sec.  
71.9, but does not include any part of the State of Alaska.

(Act of March 19, 1918, as amended by the Uniform Time Act of 1966 and 
Pub. L. 97-449, 15 U.S.C. 260-264; 49 CFR 1.59(a)).

[Amdt. 71-19, 48 FR 43281, Sept. 22, 1983]



Sec.  71.11  Alaska zone.

    The sixth zone, the Alaska standard time zone, includes the entire 
State of Alaska, except as provided in Sec.  71.12 of this title.

(Act of March 19, 1918, as amended by the Uniform Time Act of 1966 and 
Pub. L. 97-449, 15 U.S.C. 260-264; 49 CFR 1.59(a)).

[Amdt. 71-19, 48 FR 43281, Sept. 22, 1983, as amended by Amdt. 71-20, 48 
FR 55289, Dec. 12, 1983]



Sec.  71.12  Hawaii-Aleutian zone.

    The seventh zone, the Hawaii-Aleutian standard time zone, includes 
the entire State of Hawaii and, in the

[[Page 708]]

State of Alaska, that part of the Aleutian Islands that is west of 169 
degrees 30 minutes west longitude.

(Act of March 19, 1918, as amended by the Uniform Time Act of 1966 and 
Pub. L. 97-449, 15 U.S.C. 260-264; 49 CFR 1.59(a)).

[Amdt. 71-19, 48 FR 43281, Sept. 22, 1983, as amended by Amdt. 71-20, 48 
FR 55289, Dec. 12, 1983]



Sec.  71.13  Samoa zone.

    The eighth zone, the Samoa standard time zone, includes that part of 
the United States that is between 169 degrees 30 minutes west longitude 
and 172 degrees 30 minutes west longitude, but does not include any part 
of the States of Hawaii and Alaska.

(Act of March 19, 1918, as amended by the Uniform Time Act of 1966 and 
Pub. L. 97-449, 15 U.S.C. 260-264; 49 CFR 1.59(a)).

[Amdt. 71-19, 48 FR 43281, Sept. 22, 1983, as amended by Amdt. 71-20, 48 
FR 55289, Dec. 12, 1983]



Sec.  71.14  Chamorro Zone.

    The ninth zone, the Chamorro standard time zone, includes the Island 
of Guam and the Commonwealth of the Northern Mariana Islands.

[68 FR 49712, Aug. 19, 2003]



PART 79_MEDALS OF HONOR--Table of Contents



Sec.
79.1 Scope.
79.3 Application.
79.5 Investigation.
79.7 Award.
79.9 Design.

    Authority: 49 U.S.C. 80504.

    Source: 61 FR 17578, Apr. 22, 1996, unless otherwise noted.



Sec.  79.1  Scope.

    (a) This part implements 49 U.S.C. 80504, which authorizes the 
President of the United States to award a bronze medal for bravery to 
any person who, by extreme daring, risks his/her life in trying to 
prevent, or to save the life of a person in, a grave accident/incident 
in the United States that involves an interstate rail carrier or a motor 
vehicle being operated on public highways.
    (b) The actions for which the medal may be awarded must reflect such 
unusual daring and bravery that a person would not normally be expected 
to perform them as a regular part of his/her regular work or vocation.



Sec.  79.3  Application.

    (a) Any person may apply for the award of the medal described in 
Sec.  79.1, but only on behalf of another person, by writing to the 
Secretary of Transportation, Attention: Medals of Honor, within two (2) 
years of the action that is the subject of the application.
    (b) Although no application form is required, the following 
information must be provided:
    (1) Name, address, and telephone number of the person submitting the 
application.
    (2) Name, address, and telephone number of the person on whose 
behalf the application is submitted.
    (3) Date, time, place, and weather conditions of the action that is 
the subject of the application.
    (4) Identification of rail or motor carrier involved, or of operator 
of motor vehicles involved.
    (5) Identification of any public or private authority that 
investigated the accident/incident involved.
    (6) Name, address, and telephone number of any witness to the action 
that is the subject of the application.
    (7) Detailed description of the action that is the subject of the 
application, including why the person submitting the application thinks 
that the action merits the extraordinary recognition embodied in the 
Medal of Honor.
    (c) An application and any documentary or other evidence supporting 
it must be supported by oath or affirmation, or by the signer's 
acknowledgment that a knowingly false statement is punishable as 
perjury.



Sec.  79.5  Investigation.

    The Department of Transportation may make any investigation of an 
application that it deems appropriate, including the taking of testimony 
under oath or affirmation.



Sec.  79.7  Award.

    If the Secretary of Transportation decides that it is warranted, the 
Secretary shall award the Medal on behalf of and in the name of the 
President of the United States.

[[Page 709]]



Sec.  79.9  Design.

    The Department is authorized to adopt and revise the existing 
designs for the award, rosette, and ribbon provided for by statute.



PART 80_CREDIT ASSISTANCE FOR SURFACE TRANSPORTATION PROJECTS-
-Table of Contents



Sec.
80.1 Purpose.
80.3 Definitions.
80.5 Limitations on assistance.
80.7 Application process.
80.9 Federal requirements.
80.11 Investment-grade ratings.
80.13 Threshold criteria.
80.15 Selection criteria.
80.17 Fees.
80.19 Reporting requirements.
80.21 Use of administrative offset.

    Authority: Secs. 1501 et seq., Pub. L. 105-178, 112 Stat. 107, 241, 
as amended; 23 U.S.C. 181-189 and 315; 49 CFR 1.48, 1.49, and 1.51.

    Source: 64 FR 29750, June 2, 1999, unless otherwise noted.



Sec.  80.1  Purpose.

    This part implements a Federal credit assistance program for surface 
transportation projects.



Sec.  80.3  Definitions.

    The following definitions apply to this part:
    Administrative offset means the right of the government to apply 
moneys held by the government and otherwise owed to a debtor for the 
extinguishment of claims due the government from the debtor.
    Conditional term sheet means a contractual agreement between the 
U.S. Department of Transportation (DOT) and the project sponsor (and the 
lender, if applicable) by which the DOT reserves TIFIA funding for a 
specific project and commits to providing Federal credit assistance to 
that project at a future point in time upon satisfaction of specified 
conditions and subject to the future availability of obligation 
authority. The DOT will not legally obligate budget authority until 
those conditions are met. Upon satisfaction of those conditions, the 
conditional term sheet can be amended and/or restated to trigger an 
obligation of funds.
    Credit agreement means a contractual agreement between the DOT and 
the project sponsor (and the lender, if applicable) that formalizes the 
terms and conditions established in the term sheet (or conditional term 
sheet) and authorizes the execution of a secured loan, loan guarantee, 
or line of credit.
    Eligible project costs mean amounts substantially all of which are 
paid by, or for the account of, an obligor in connection with a project, 
including the cost of:
    (1) Development phase activities, including planning, feasibility 
analysis, revenue forecasting, environmental review, permitting, 
preliminary engineering and design work, and other pre-construction 
activities;
    (2) Construction, reconstruction, rehabilitation, replacement, and 
acquisition of real property (including land related to the project and 
improvements to land), environmental mitigation, construction 
contingencies, and acquisition of equipment; and
    (3) Capitalized interest necessary to meet market requirements, 
reasonably required reserve funds, capital issuance expenses, and other 
carrying costs during construction.
    Federal credit instrument means a secured loan, loan guarantee, or 
line of credit authorized to be made available under this subchapter 
with respect to a project.
    Investment-grade rating means a rating category of BBB minus, Baa3, 
or higher assigned by a rating agency to project obligations offered 
into the capital markets.
    Lender means any non-Federal qualified institutional buyer (as 
defined in 17 CFR 230.144A(a)), known as Rule 144A(a) of the Securities 
and Exchange Commission and issued under the Securities Act of 1933 (15 
U.S.C. 77a et seq.), including:
    (1) A qualified retirement plan (as defined in section 4974(c) of 
the Internal Revenue Code of 1986, 26 U.S.C. 4974(c)) that is a 
qualified institutional buyer; and
    (2) A governmental plan (as defined in section 414(d) of the 
Internal Revenue Code of 1986, 26 U.S.C. 414(d)) that is a qualified 
institutional buyer.

[[Page 710]]

    Line of credit means an agreement entered into by the Secretary with 
an obligor under section 184 of title 23 to provide a direct loan at a 
future date upon the occurrence of certain events.
    Loan guarantee means any guarantee or other pledge by the Secretary 
to pay all or part of the principal of and interest on a loan or other 
debt obligation issued by an obligor and funded by a lender.
    Local servicer means:
    (1) A State infrastructure bank established under title 23; or
    (2) A State or local government or any agency of a State or local 
government that is responsible for servicing a Federal credit instrument 
on behalf of the Secretary.
    Obligor means a party primarily liable for payment of the principal 
of or interest on a Federal credit instrument, which party may be a 
corporation, partnership, joint venture, trust, or governmental entity, 
agency, or instrumentality.
    Project means:
    (1) Any surface transportation project eligible for Federal 
assistance under title 23 or chapter 53 of title 49;
    (2) A project for an international bridge or tunnel for which an 
international entity authorized under Federal or State law is 
responsible;
    (3) A project for intercity passenger bus or rail facilities and 
vehicles, including facilities and vehicles owned by the National 
Railroad Passenger Corporation, and components of magnetic levitation 
transportation systems; and
    (4) A project for publicly owned intermodal surface freight transfer 
facilities, other than seaports and airports, if the facilities are 
located on or adjacent to National Highway System routes or connections 
to the National Highway System.
    Project obligation means any note, bond, debenture, or other debt 
obligation issued by an obligor in connection with the financing of a 
project, other than a Federal credit instrument.
    Project sponsor, for the purposes of this part, means an applicant 
for TIFIA assistance or an obligor, as appropriate.
    Rating agency means a bond rating agency identified by the 
Securities and Exchange Commission as a Nationally Recognized 
Statistical Rating Organization.
    Secured loan means a direct loan or other debt obligation issued by 
an obligor and funded by the Secretary in connection with the financing 
of a project under section 183 of title 23.
    State means any one of the fifty states, the District of Columbia, 
or Puerto Rico.
    Subsidy amount means the amount of budget authority sufficient to 
cover the estimated long-term cost to the Federal Government of a 
Federal credit instrument, calculated on a net present value basis, 
excluding administrative costs and any incidental effects on 
governmental receipts or outlays in accordance with the provisions of 
the Federal Credit Reform Act of 1990 (2 U.S.C. 661 et seq.).
    Substantial completion means the opening of a project to vehicular 
or passenger traffic or a comparable event as determined by the 
Secretary and specified in the credit agreement.
    Term sheet means a contractual agreement between the DOT and the 
project sponsor (and the lender, if applicable) that sets forth the key 
business terms and conditions of a Federal credit instrument. Execution 
of this document represents a legal obligation of budget authority.
    TIFIA means the Transportation Infrastructure Finance and Innovation 
Act of 1998, Pub. L. 105-178, 112 Stat. 107, 241 (1998).

[64 FR 29750, June 2, 1999, as amended at 65 FR 44939, July 19, 2000]



Sec.  80.5  Limitations on assistance.

    (a) The total amount of credit assistance offered to any project 
under this part shall not exceed 33 percent of the anticipated eligible 
project costs, as measured on an aggregate cash (year-of-expenditure) 
basis.
    (b) Costs incurred prior to a project sponsor's submission of an 
application for credit assistance may be considered in calculating 
eligible project costs only upon approval of the Secretary. In addition, 
applicants shall not include application charges or any other expenses 
associated with the application process (such as charges associated

[[Page 711]]

with obtaining the required preliminary rating opinion letter) among the 
eligible project costs.
    (c) No costs financed internally or with interim funding may be 
refinanced under this part later than a year following substantial 
completion of the project.
    (d)(1) Within the overall credit assistance limitation of 33 percent 
of eligible project costs, the Secretary may consider making future-year 
or multi-year contingent commitments of budget authority and associated 
credit assistance for projects temporarily lacking certain requirements 
or with extended construction periods and financing needs. The TIFIA's 
effectiveness in stimulating private investment in transportation 
infrastructure depends, in large part, on investor recognition that 
TIFIA credit instruments represent solid and reliable Federal 
commitments. Therefore, the Secretary shall make any future-year or 
multi-year contingent commitment of funds for a project using a 
conditional term sheet. The conditional term sheet will resemble the 
standard term sheet that enables the obligation of budget authority, but 
will also specify the additional actions necessary to trigger subsequent 
obligation(s). The conditional term sheet will include fixed dates by 
which any requirements must be met in order for the reserved funding to 
be obligated.
    (2) Upon execution of the conditional term sheet, the Secretary 
shall reserve budget authority attributable to the appropriate year(s). 
This reservation will ensure that a project with a conditional 
commitment will have a priority claim (along with that of any other 
projects receiving such contingent commitments) on budget authority 
becoming available in the specified year(s), provided that the project 
sponsor satisfies each condition outlined in the conditional term sheet. 
The Secretary will limit such reservations to not more than 50 percent 
of the budget authority becoming available in the applicable year(s). If 
a multi-year contingent commitment is made, each year's loan will be 
tied to distinct, clearly identified project segments or stages or other 
milestones as specified in the credit agreement.
    (e) The obligor may draw upon the line of credit only if net project 
revenues (including, among other sources, any debt service reserve fund) 
are insufficient to pay costs specified in 23 U.S.C. 184(a)(2) under the 
line of credit, including debt service costs. Debt service costs include 
direct payments of principal and interest as well as reimbursements for 
such payments in the form of legally required deposits to a debt service 
reserve fund.
    (f) The Secretary shall not obligate funds in favor of a project 
that has not received an environmental Categorical Exclusion, Finding of 
No Significant Impact, or Record of Decision.
    (g) The Secretary shall fund a secured loan based on the project's 
financing needs. The credit agreement shall include the anticipated 
schedule for such loan disbursements.

[64 FR 29750, June 2, 1999, as amended at 65 FR 44939, July 19, 2000]



Sec.  80.7  Application process.

    (a) Public and private applicants for credit assistance under this 
part will be required to submit applications to the DOT in order to be 
considered for approval by the Secretary.
    (b) At a minimum, such applications shall provide:
    (1) Documentation sufficient to demonstrate that the project 
satisfies each of the threshold criteria in Sec.  80.13 and describe the 
extent to which the project satisfies each of the selection criteria in 
Sec.  80.15;
    (2) Background information on the project for which assistance is 
sought, such as the project's description, status of environmental and 
other major governmental permits and approvals, and construction 
schedule;
    (3) Background information on the applicant (project sponsor);
    (4) Historical information, if applicable, concerning the 
applicant's financial condition, including, for example, independently 
audited financial statements and certifications concerning bankruptcies 
or delinquencies on other debt; and
    (5) Current financial information concerning both the project and 
the applicant, such as sources and uses of funds for the project and a 
forecast of

[[Page 712]]

cash flows available to service all debt instruments.
    (c) An application for a project located in or sponsored by more 
than one State or other entity shall be submitted to the DOT by just one 
State or entity. The sponsoring States or entities shall designate a 
single obligor for purposes of applying for, receiving, and repaying 
TIFIA credit assistance.
    (d) Each fiscal year for which Federal assistance is available under 
this part, the DOT shall publish a Federal Register notice to solicit 
applications for credit assistance. Such notice will specify the 
relevant due dates, the estimated amount of funding available to support 
TIFIA credit instruments for the current and future fiscal years, 
contact name(s), and other details for that year's application 
submissions and funding approvals.



Sec.  80.9  Federal requirements.

    All projects receiving credit assistance under this part shall 
comply with:
    (a) The relevant requirements of title 23, U.S.C., for highway 
projects, chapter 53 of title 49, U.S.C., for transit projects, and 
section 5333(a) of title 49 for rail projects, as appropriate;
    (b) Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et 
seq.);
    (c) The National Environmental Policy Act of 1969 (42 U.S.C. 4321 et 
seq.);
    (d) The Uniform Relocation Assistance and Real Property Acquisition 
Policies Act of 1970 (42 U.S.C. 4601 et seq.); and
    (e) Other Federal and compliance requirements as may be applicable.



Sec.  80.11  Investment-grade ratings.

    (a) At the time a project sponsor submits an application, the DOT 
shall require a preliminary rating opinion letter. This letter is a 
conditional credit assessment from a nationally recognized credit rating 
agency that provides a preliminary indication of the project's overall 
creditworthiness and that specifically addresses the potential of the 
project's senior debt obligations (those obligations having a lien 
senior to that of the TIFIA credit instrument on the pledged security) 
to achieve an investment-grade rating.
    (b) The full funding of a secured (direct) loan, loan guarantee, or 
line of credit shall be contingent on the assignment of an investment-
grade rating by a nationally recognized bond rating agency to all 
project obligations that have a lien senior to that of the Federal 
credit instrument on the pledged security.
    (c) Neither the preliminary rating opinion letter nor the formal 
credit rating should reflect the effect of bond insurance, unless that 
insurance provides credit enhancement that secures the TIFIA obligation.
    (d) The project sponsor must annually provide, at no cost to the 
Federal Government, ongoing credit evaluations of the project and 
related debt obligations, including an annual assessment of the TIFIA 
credit instrument. The evaluations are to be performed by a nationally 
recognized credit rating agency and provided to the DOT throughout the 
life of the TIFIA credit instrument. In addition, the project sponsor 
will furnish the DOT with any other credit surveillance reports on the 
TIFIA-assisted project as soon as they are available.

[64 FR 29750, June 2, 1999, as amended at 65 FR 44939, July 19, 2000]



Sec.  80.13  Threshold criteria.

    (a) To be eligible to receive Federal credit assistance under this 
part, a project shall meet the following five threshold criteria:
    (1) The project shall be consistent with the State transportation 
plan, if located in a metropolitan area shall be included in that area's 
metropolitan transportation plan, and shall appear in an approved State 
transportation improvement program before the DOT and the project 
sponsor execute a term sheet or credit agreement that results in the 
obligation of funds;
    (2) The State, local servicer, or other entity undertaking the 
project shall submit a project application to the Secretary of 
Transportation;
    (3) A project shall have eligible project costs that are reasonably 
anticipated to equal or exceed the lesser of $100 million or 50 percent 
of the amount of Federal-aid highway funds apportioned for the most 
recently completed fiscal year to the State in which the project is 
located (in the case of a

[[Page 713]]

project principally involving the installation of Intelligent 
Transportation Systems (ITS), eligible project costs shall be reasonably 
anticipated to equal or exceed $30 million);
    (4) Project financing shall be repayable, in whole or in part, from 
tolls, user fees or other dedicated revenue sources; and
    (5) In the case of a project that is undertaken by an entity that is 
not a State or local government or an agency or instrumentality of a 
State or local government, the project that the entity is undertaking 
shall be included in the State transportation plan and an approved State 
Transportation Improvement Program as provided in paragraph (a)(1) of 
this section.
    (b) With respect to paragraph (a)(3) of this section, for a project 
located in more than one State, the minimum cost threshold size shall be 
the lesser of $100 million or 50 percent of the amount of Federal-aid 
highway funds apportioned for the most recently completed fiscal year to 
the participating State that receives the least amount of such funds.
    (c) With respect to paragraph (a)(4) of this section, the Secretary 
may accept general obligation pledges or general corporate promissory 
pledges and will determine the acceptability of other pledges and forms 
of collateral as dedicated revenue sources on a case-by-case basis. The 
Secretary shall not accept a pledge of Federal funds, regardless of 
source, as security for the TIFIA credit instrument.



Sec.  80.15  Selection criteria.

    (a) The Secretary shall assign weights as indicated to the following 
eight selection criteria in evaluating and selecting among eligible 
projects to receive credit assistance:
    (1) The extent to which the project is nationally or regionally 
significant, in terms of generating economic benefits, supporting 
international commerce, or otherwise enhancing the national 
transportation system (20 percent);
    (2) The creditworthiness of the project, including a determination 
by the Secretary that any financing for the project has appropriate 
security features, such as a rate covenant, to ensure repayment (12.5 
percent);
    (3) The extent to which such assistance would foster innovative 
public-private partnerships and attract private debt or equity 
investment (20 percent);
    (4) The likelihood that such assistance would enable the project to 
proceed at an earlier date than the project would otherwise be able to 
proceed (12.5 percent);
    (5) The extent to which the project uses new technologies, including 
Intelligent Transportation Systems (ITS), that enhance the efficiency of 
the project (5 percent);
    (6) The amount of budget authority required to fund the Federal 
credit instrument made available (5 percent);
    (7) The extent to which the project helps maintain or protect the 
environment (20 percent); and
    (8) The extent to which such assistance would reduce the 
contribution of Federal grant assistance to the project (5 percent).
    (b) In addition, 23 U.S.C. 182(b)(2)(B) conditions a project's 
approval for credit assistance on receipt of a preliminary rating 
opinion letter indicating that the project's senior debt obligations 
have the potential to attain an investment-grade rating.
    (c) The Secretary may also give preference to applications for loan 
guarantees rather than other forms of Federal credit assistance. This 
preference is consistent with Federal policy that, when Federal credit 
assistance is necessary to meet a Federal objective, loan guarantees 
should be favored over direct loans, unless attaining the Federal 
objective requires a subsidy, as defined by the Federal Credit Reform 
Act of 1990 (2 U.S.C. 661 et seq.), deeper than can be provided by a 
loan guarantee.

[64 FR 29750, June 2, 1999, as amended at 65 FR 44940, July 19, 2000]



Sec.  80.17  Fees.

    (a) The DOT will require a non-refundable application fee for each 
project applying for credit assistance under the TIFIA. The DOT may also 
require an additional credit processing fee for projects selected to 
receive TIFIA assistance. Any required application initiation or credit 
processing fee must be paid by the project sponsor

[[Page 714]]

applying for TIFIA assistance and cannot be paid by another party on 
behalf of the project sponsor. The proceeds of any such fees will equal 
a portion of the costs to the Federal Government of soliciting and 
evaluating applications, selecting projects to receive assistance, and 
negotiating credit agreements. For FY 2000, the DOT will require payment 
of a fee of $5,000 for each project applying for credit assistance under 
the TIFIA, to be submitted concurrently with the formal application. The 
DOT will not impose any credit processing fees for FY 2000. For each 
application and approval cycle in FY 2001 and beyond, the DOT may adjust 
the amount of the application fee and will determine the appropriate 
amount of the credit processing fee based on program implementation 
experience. The DOT will publish these amounts in each Federal Register 
solicitation for applications.
    (b) Applicants shall not include application initiation or credit 
processing fees or any other expenses associated with the application 
process (such as fees associated with obtaining the required preliminary 
rating opinion letter) among eligible project costs for the purpose of 
calculating the maximum 33 percent credit amount referenced in Sec.  
80.5(a).
    (c) If, in any given year, there is insufficient budget authority to 
fund the credit instrument for a qualified project that has been 
selected to receive assistance under TIFIA, the DOT and the approved 
applicant may agree upon a supplemental fee to be paid by or on behalf 
of the approved applicant at the time of execution of the term sheet to 
reduce the subsidy cost of that project. No such fee may be included 
among eligible project costs for the purpose of calculating the maximum 
33 percent credit amount referenced in Sec.  80.5(a).
    (d) The DOT will require borrowers to pay servicing fees for each 
credit instrument approved for funding. Separate fees may apply for each 
type of credit instrument (e.g., a loan guarantee, a secured loan with a 
single disbursement, a secured loan with multiple disbursements, or a 
line of credit), depending on the costs of servicing the credit 
instrument as determined by the Secretary. Such fees will be set at a 
level to enable the DOT to recover all or a portion of the costs to the 
Federal Government of TIFIA credit instruments.

[65 FR 44940, July 19, 2000]



Sec.  80.19  Reporting requirements.

    At a minimum, any recipient of Federal credit assistance under this 
part shall submit an annual project performance report and audited 
financial statements to the DOT within no more than 180 days following 
the recipient's fiscal year-end for each year during which the 
recipient's obligation to the Federal Government remains in effect. The 
DOT may conduct periodic financial and compliance audits of the 
recipient of credit assistance, as determined necessary by the DOT. The 
specific credit agreement between the recipient of credit assistance and 
the DOT may contain additional reporting requirements.

[65 FR 44940, July 19, 2000]



Sec.  80.21  Use of administrative offset.

    The DOT will not apply an administrative offset to recover any 
losses to the Federal Government resulting from project risk the DOT has 
assumed under a TIFIA credit instrument. The DOT may, however, use an 
administrative offset in cases of fraud, misrepresentation, false 
claims, or similar criminal acts or acts of malfeasance or wrongdoing.

[65 FR 44940, July 19, 2000]



PART 89_IMPLEMENTATION OF THE FEDERAL CLAIMS COLLECTION ACT-
-Table of Contents



                            Subpart A_General

Sec.
89.1 Purpose.
89.3 Applicability.
89.5 Delegations of authority.
89.7 Exceptions to delegated authority.
89.9 Redelegation.
89.11 Standards for exercise of delegated authority.
89.13 Documentary evidence of compromise.
89.15 Regulations, reports, and supporting documentation.

                     Subpart B_Collection of Claims

89.21 Administrative collection.

[[Page 715]]

89.23 Interest, late payment penalties, and collection charges.
89.25 Collection by administrative offset.
89.27 Referral for litigation.
89.29 Disclosure to commercial credit bureaus and consumer reporting 
          agencies.
89.31 Use of professional debt collection agencies.
89.33 [Reserved]
89.35 Administrative wage garnishment.

        Subpart C_Referral of Debts to IRS for Tax Refund Offset

89.37 Applicability and scope.
89.39 Administrative charges.
89.41 Notice requirement before offset.
89.43 Review within the Department.
89.45 Department determination.
89.47 Stay of offset.

    Authority: Pub. L. 89-508; Pub. L. 89-365, secs. 3, 10, 11, 13(b), 
31 U.S.C. 3701-3720A; Pub. L. 98-167; Pub. L. 98-369; Pub. L. 99-578; 
Pub. L. 101-552, 31 U.S.C. 3711(a)(2).

    Source: 53 FR 51238, Dec. 21, 1988, unless otherwise noted.



                            Subpart A_General



Sec.  89.1  Purpose.

    This part implements the Federal Claims Collection Act of 1966, 31 
U.S.C. 3701-3720 A, as amended primarily by the Debt Collection Act of 
1982 (Pub. L. 97-365, 96 Stat. 1749) and the Debt Collection Amendments 
of 1986 (Pub. L. 99-578, 100 Stat. 3305). It supplements the Federal 
Claims Collection Standards (FCCS), 4 CFR parts 101-105, issued jointly 
by the Comptroller General of the United States and the Attorney General 
of the United States under 31 U.S.C. 3711(e)(2). Pursuant to the Federal 
Claims Collection Act, as amended, and the FCCS, this part sets forth 
procedures by which the Department of Transportation (DOT) and its 
operating elements (see 49 CFR 1.3) through designated officials:
    (a) Collect claims owed to the United States arising from activities 
under its jurisdiction;
    (b) Determine and collect interest and other charges on those 
claims;
    (c) Compromise claims; and
    (d) Refer unpaid claims for litigation.



Sec.  89.3  Applicability.

    (a) The part applies to collection of all claims due the United 
States under the Federal Claims Collection Act of 1966 as amended by the 
Debt Collection Act of 1982 and the Debt Collection Amendments of 1986 
(Pub. L. 99-578), arising from activities under the jurisdiction of DOT 
including amounts due the United States from fees, overpayments, fines, 
civil penalties, loans, damages, interest, and other sources.
    (b) This part does not apply to collection, settlement or compromise 
of debts owed the United States pursuant to authority other than Title 
31, Chapter 37, Subchapter II: for example, application of this part to 
the enforcement of contracts under 46 U.S.C. 1117, delegated to the DOT 
Maritime Administration, is not required.
    (c) Section 89.23 (interest, late payment penalties, and collection 
charges) and Sec.  89.25 (collection by administrative offset) of this 
part do not apply to debts which other United States government agencies 
or state governments or units of general local government owe the 
Department (see 31 U.S.C. 3701(c)); however, other statutory or common 
law may provide legal authority. Neither does the proposed rule apply to 
recovery of debts owed by current or former employees of the United 
States governed by 5 U.S.C. 5514.
    (d) Claims arising out of contracts that contain specific provisions 
relating to claims are governed by those specific provisions to the 
extent that those provisions comply with existing law and with 4 CFR 
chapter II.
    (e) As used in this part, the terms debt and claims are 
interchangeable and have the meaning defined in 4 CFR 101.2(a). A 
debtor's liability arising out of a particular incident or adjudication 
exclusive of interest, administrative costs, and late payment penalties, 
is a single claim.
    (f) Except as provided in paragraphs (b), (c) and (d) of this 
section the provisions of this part shall apply to the collection of all 
debts and claims owed to any DOT operating element. A claim arising from 
the assessment of civil penalty or fine is not subject to the procedures 
of this subpart until the claim has been reduced to a liquidated debt by 
a signed settlement agreement, a court order or judgment, or a final 
administrative determination.

[[Page 716]]



Sec.  89.5  Delegations of authority.

    The functions, powers, and duties of the Secretary of Transportation 
to attempt collection of claims, to compromise claims of the United 
States not exceeding $100,000 (excluding interest) and to suspend and 
terminate action to collect such claims are delegated to:
    (a) The Assistant Secretary for Administration with respect to 
collection, compromise, suspension and termination of claims arising out 
of the activities of, or referred to, the Working Capital Fund;
    (b) The Assistant Secretary for Budget and Programs with respect to 
collection, compromise, suspension and termination of collection of 
claims under 31 U.S.C. 3711 arising out of the activities of, or 
referred to, the Office of the Secretary (excluding claims pertaining to 
the Working Capital Fund); and
    (c) The heads of other DOT operating elements with respect to claims 
arising out of the activities of, or referred to, their organizations.

[53 FR 51238, Dec. 21, 1988, as amended at 58 FR 6898, Feb. 3, 1993; 73 
FR 57269, Oct. 2, 2008]



Sec.  89.7  Exceptions to delegated authority.

    The authority delegated under Sec.  89.5 does not apply to any 
claim:
    (a) As to which there is an indication of (1) fraud; (2) the 
presentation of a false claim; or (3) misrepresentation on the part of 
the debtor or any other party having an interest in the claim;
    (b) Based on tax statutes; or
    (c) Arising from an exception made by the General Accounting Office 
in the account of an accountable officer.



Sec.  89.9  Redelegation.

    Each officer to whom authority is delegated under Sec.  89.5 may 
redelegate and authorize successive redelegations of the authority 
within the organization under his or her jurisdiction.



Sec.  89.11  Standards for exercise of delegated authority.

    The authority delegated under Sec.  89.5 shall be exercised in 
accordance with the standards for the collection and compromise of 
claims and for the suspension and termination of action to collect 
claims promulgated by the United States General Accounting Office and 
the United States Department of Justice, and published at 4 CFR chapter 
II, as those standards may be amended.



Sec.  89.13  Documentary evidence of compromise.

    A compromise of any claim is not final or binding on the United 
States unless it is in writing, signed by an officer or employee 
authorized to compromise that claim.



Sec.  89.15  Regulations and supporting documentation.

    (a) Each officer to whom authority is delegated under Sec.  89.5 may 
promulgate regulations for the exercise of that authority within his or 
her organization. These regulations shall be revised, as necessary, to 
conform to any amendments to this part.
    (b) Each officer to whom authority is delegated under 89.5 shall 
furnish the following information to the Assistant Secretary for 
Administration and the Assistant Secretary for Budget and Programs:
    (1) A copy of each redelegation of that authority.
    (2) A copy of any implementing regulations governing the exercise of 
the authority delegated under Sec.  89.5, and any amendments to those 
regulations.
    (c) Each officer or employee to whom the Secretary's authority has 
been delegated or redelegated, before exercising such authority, shall 
acquire sufficient documentation to demonstrate that the action taken is 
in the best interests of the United States. This documentation will be 
retained with and treated as part of the file concerning the debt.
    (d) The failure of any officer or employee to comply with this 
section does not limit or impair his or her exercise of authority.

[53 FR 51238, Dec. 21, 1988, as amended at 73 FR 57269, Oct. 2, 2008]



                     Subpart B_Collection of Claims

    Authority: Public Law 89-508; Public Law 89-365, secs. 3, 10, 11, 
13(b), 31 U.S.C. 3701-3720A; Public Law 98-167; Public Law 98-369;

[[Page 717]]

Public Law 99-578; Public Law 101-552, 31 U.S.C. 3711(a)(2); 31 CFR 
3711, 3716-3720E.



Sec.  89.21  Administrative collection.

    Except as provided differently by the DOT operating elements 
pursuant to Sec.  89.3:
    (a) DOT shall send a debtor a total of three progressively stronger 
written demands at not more than 30-day intervals, unless a response to 
the first or second demand indicates that a further demand would be 
futile or the debtor's response does not require rebuttal, or other 
pertinent information indicates that additional written demands would be 
unnecessary.
    (b) The initial written demand for payment (and the notice of offset 
under Sec.  89.25) shall inform the debtor of:
    (1) The basis for the indebtedness and the debtor's right to obtain 
review (see Sec.  89.21(f) for details on review).
    (2) The amount of the claim;
    (3) That domestic and overseas payment in excess of ten thousand 
dollars or more shall be made by wire transfer through the Federal 
Reserve communications, commonly known as Fedwire, to the account of the 
U.S. Treasury in accordance with the instructions provided in the demand 
letter; payments originating in foreign countries shall be made by wire 
transfer to the extent practicable.
    (4) The delinquency date, or the date by which payment is to be made 
(30 days from the date of mailing or hand delivery of the initial demand 
letter);
    (5) The standard for interest, penalties, and administrative charges 
in accordance with 31 U.S.C. 3717, if payment is not received by the due 
date (see Sec.  89.23 for details regarding interest, collection 
charges, and late payment penalty charges);
    (6) Where a notice of offset is concerned, the right to make 
voluntary payment before collection by offset begins (see Sec.  89.25).
    (7) The possible reporting of the claim to commercial credit bureaus 
and consumer reporting agencies; however a notice of offset should not 
include this warning.
    (8) The possibility that DOT will forward the claim to a collection 
agency, the General Accounting Office, the Department of Justice, or 
private counsel contracting with the Department of Justice for 
collection; however a notice of offset should not include this warning.
    (c) If the debtor fails to respond to the demands for payment by the 
due date specified in the notice, the Department may take further action 
under this part or the FCCS under 4 CFR parts 101 through 105, pursuant 
to 31 U.S.C. 3701-3720A. These actions may include reports to commercial 
credit bureaus, consumer reporting agencies, contracts with commercial 
collection agencies, revocation of licenses, or the use of 
administrative offset, as authorized in 31 U.S.C. 3701-3720A.
    (d) DOT may collect by administrative offset, (see Sec.  89.25, 
Collection by administrative offset), if the debtor:
    (1) Has not made payment by the payment due date;
    (2) Has not requested a review of the claim within the agency as set 
out in paragraph (f) of this section; or
    (3) Has not made an arrangement for payment by the payment due date;
    (e) Except for information that may properly be withheld under 49 
CFR part 7, the debtor may inspect and copy the records of the agency 
related to the claim. Any reasonable costs associated with the copying 
and inspection of the records shall be borne by the debtor. (Payment of 
cost is governed by 49 CFR part 7, subpart I.) The debtor shall give 
reasonable notice in advance to the agency of the date on which it 
intends to inspect and copy the records involved;
    (f)(1) Except for debts established by settlement agreement, court 
order or judgment, or final administrative decision, the debtor may 
request review of the validity or amount of a claim. To do so, the 
debtor shall make a request in writing for review of the claim prior to 
it becoming delinquent. (See 4 CFR 101.2 for definition of when a debt 
is considered delinquent.) The debtor's written response shall state the 
basis for the dispute, and provide all factual information, documents, 
citation to authority, argument and any other matters to be considered. 
If only part of the claim is disputed, the undisputed portion shall be 
paid by the delinquency date stated in the initial demand. During the 
period that the claim

[[Page 718]]

is being reviewed, the amount of the debt is owed, but the accrual of 
interest and accrual of time to delinquency may be suspended on the 
disputed portion of the debt.
    (2) Review of claims shall be based upon the written record unless 
an oral hearing is required by 4 CFR 102.3(c). Upon completion of 
review, within 30 days whenever feasible, the Department shall advise 
the debtor whether the debt has been found to be valid in any amount, or 
that collection will be terminated. If the claim is found to be valid in 
any amount, the accrual of interest and time to delinquency shall 
commence 15 days after mailing of the notification of the review 
results. The notification of the review may also include notice of a 
specific collection action to be undertaken if payment is not received.
    (g) The debtor may offer to make a written agreement to pay the 
amount of the claim. The acceptance of such an agreement is 
discretionary with DOT. If the debtor requests an installment payment 
arrangement because a lump sum payment would create a financial 
hardship, DOT may agree to a written installment payment schedule with 
the debtor (see 4 CFR 102.11(a)). The debtor shall execute a confess-
judgment note which specifies all of the terms of the arrangement and 
includes a provision accelerating the debt in the event the debtor 
defaults. The size and frequency of installment payments shall bear a 
reasonable relation to the size of the debt and the debtor's ability to 
pay. Interest shall be provided in the note (see Sec.  89.23). The 
debtor shall be provided with a written explanation of the consequences 
of signing a confess-judgment note. The debtor shall sign a statement 
acknowledging receipt of the written explanation, which shall recite 
that the statement was read and understood before execution of the note 
and that the note is being signed knowingly and voluntarily. Evidence of 
these facts shall be maintained in DOT's file on the debtor in 
accordance with the practice of the DOT operating element.



Sec.  89.23  Interest, late payment penalties, and collection charges.

    (a) DOT shall charge interest on an outstanding debt at the Treasury 
Current Value of Funds Rate published by the Secretary of the Treasury 
in accordance with 31 U.S.C. 3717 and 4 CFR 102.13(c), unless DOT 
determines that a higher rate is necessary to protect the interests of 
the United States. DOT shall charge a late payment penalty at a rate of 
six percent a year on any portion of a debt that is more than 90 days 
past due. DOT shall also assess administrative charges to cover 
additional cost incurred in processing and handling the debt beyond the 
payment due date. The imposition of interest, collection charges, and 
late payment penalty charges shall be made in accordance with 31 U.S.C. 
3717, 4 CFR 102.13 (see Sec.  89.3(c) regarding payment of such charges 
by Federal, state and local government agencies).
    (b) Interest on debt shall begin to accrue on the date on which the 
debtor is mailed or delivered notice of the debt and the interest 
requirements or, in the case of advance billings, on the calendar day 
following the specified due date of the debt, provided the advance 
billing gives notice of the interest requirements for late payment. 
Interest on the debt shall continue to accrue until payment is received. 
Interest shall be calculated only on the principal of the debt (simple 
interest). The rate of interest assessed shall be the rate in effect on 
the date from which interest begins to accrue, and will remain fixed for 
the duration of the indebtedness. The rate of interest assessed will 
generally be the Treasury Current Value of Funds Rate.
    (c) The Department shall waive interest on debt that is paid within 
30 calendar days after the date on which interest began to accrue.
    (d) Collection charges on debt shall be computed to cover the cost 
of processing and handling the delinquent debt. It shall be either the 
actual cost to process the particular delinquent debt to which it is 
applied, or operating elements may set the amount of such monthly charge 
by cost analysis establishing the average of actual additional

[[Page 719]]

costs incurred by the operating element in processing similar debts. 
Collection charges may also include the expense of obtaining credit 
reports and of using a professional debt collection contractor.
    (e) DOT may waive interest, collection charges, or late payment 
penalty charges if it finds that:
    (1) The debtor would be eligible for compromise under standards set 
forth in 4 CFR 103.2 with regard to the amount of the debt;
    (2) Collection of interest, administrative charges, or penalties 
will jeopardize collection of the principal of the debt; or
    (3) It is otherwise in the best interests of the United States, 
including the situation in which an offset or installment payment 
agreement is in effect.



Sec.  89.25  Collection by administrative offset.

    (a) Whenever feasible, after a debtor fails to pay a claim, request 
a review of a claim, or make an arrangement for payment following a 
demand made in accordance with Sec.  89.21, DOT shall collect claims 
under this part by means of administrative offset against obligations of 
the United States to the debtor pursuant to 31 U.S.C. 3716 and 4 CFR 
102.3. Salary offset against present or former employees of the United 
States is not governed by this part (see 49 CFR part 92).
    (b) The Department shall notify the debtor in writing in conformance 
with 31 U.S.C. 3716 and the FCCS of its intent to collect the debt by 
offset, unless the debtor pays the debt in full, including all interest, 
administrative charges, and penalties, or executes an agreement to pay 
the debt by installment at terms acceptable to DOT.
    (c) In making collection by administrative offset under 31 U.S.C. 
3716, DOT must do so in accordance with the requirements set forth in 
Sec.  89.21(b)(1-6). (See also procedures for recovery of debts to the 
United States by salary offset, 49 CFR part 92.)



Sec.  89.27  Referral for litigation.

    Claims that are not settled or for which collection action is not 
compromised, suspended or terminated under 4 CFR parts 103 and 104 or 
collected by collection agencies shall be referred to the General 
Accounting Office or the Department of Justice for litigation in 
accordance with the procedures in 4 CFR part 105.



Sec.  89.29  Disclosure to commercial credit bureaus and consumer
reporting agencies.

    (a) Data on all delinquent commercial and consumer debts may be 
reported to commercial credit bureaus and consumer reporting agencies 
(see 31 U.S.C. 3701(a)(3)). Sixty days prior to release of information 
to a consumer reporting agency, the debtor shall be notified, in 
writing, of the intent to disclose the existence of the debt to a 
consumer reporting agency. Such notice of intent may be by separate 
correspondence or included in correspondence demanding direct payment. 
The notice shall be in conformance with 31 U.S.C. 3711(f) and the 
Federal Claims Collection Standards.
    (b) The information that may be disclosed is the debtor's name, 
address, social security number or taxpayer identification number, and 
any other information to establish the identity and location of the 
individual, the amount of the claim, status and history of the claim, 
and the program under which the claim arose.



Sec.  89.31  Use of professional debt collection agencies.

    Debts over 90 days delinquent (see Sec.  89.21(b)(4)) may be turned 
over to professional debt collection agencies except for those debts 
owed by State and local governments, other Federal agencies, current 
employees, and other debts prohibited by statute from being turned over 
to commercial collection agencies.



Sec.  89.33  [Reserved]



Sec.  89.35  Administrative wage garnishment.

    (a) General. The Secretary may use administrative wage garnishment 
for debts referred to cross-servicing at Financial Management Service, 
Department of Treasury. Regulations in 31 CFR 285.11 govern the 
collection of debts owed to federal agencies through administrative wage 
garnishment. Whenever the Financial Management

[[Page 720]]

Service collects a debt for the Secretary using administrative wage 
garnishment, the statutory administrative requirements in 31 CFR 285.11 
will govern.
    (b) Hearing official. Any hearing required to establish the 
Secretary's right to collect a debt through administrative wage 
garnishment shall be conducted by a qualified individual selected at the 
discretion of the Secretary of Transportation, as specified in 31 CFR 
285.11. The qualified individual may include an Administrative Law 
Judge.

[74 FR 40523, Aug. 12, 2009]



        Subpart C_Referral of Debts to IRS for Tax Refund Offset

    Source: 54 FR 28681, July 7, 1989, unless otherwise noted.



Sec.  89.37  Applicability and scope.

    (a) This subpart implements 31 U.S.C. 3720A which authorizes the IRS 
to reduce a tax refund by the amount of a past-due legally enforceable 
debt owed to the United States.
    (b) For purposes of this subpart, a past-due legally enforceable 
debt referable to the IRS is:
    (1) A debt which:
    (i) Is owed to the United States;
    (ii) Is at least $25.00;
    (iii) Except in the case of a judgment debt, has been delinquent for 
at least three months but has not been delinquent for more than ten 
years at the time the offset is made;
    (iv) Cannot be currently collected pursuant to the salary offset 
provisions of 5 U.S.C. 5514(a)(1);
    (v) Is ineligible for administrative offset under 31 U.S.C. 3716(a) 
by reason of 31 U.S.C. 3716(c)(2) or cannot be collected by 
administrative offset under 31 U.S.C. 3716(a) by the Department against 
amounts payable to or on behalf of the debtor by or on behalf of the 
Department;
    (vi) Has been disclosed by the Department to a consumer reporting 
agency as authorized by 31 U.S.C. 3711(f), unless a consumer reporting 
agency would be prohibited from using such information by 15 U.S.C. 
1681c, or unless the amount of the debt does not exceed $100.00; and
    (2) A debt for which the Department has:
    (i) Notified or has made reasonable attempt to notify the taxpayer 
that the debt is past-due and, that the debt, unless repaid within 60 
days thereafter, will be referred to the IRS for offset against any 
overpayment of tax;
    (ii) Given the debtor at least 60 days from the date of notification 
to present information that all or part of the debt is not past-due or 
legally enforceable, has considered information presented by such 
debtor, and has determined that an amount of debt is past-due and 
legally enforceable;



Sec.  89.39  Administrative charges.

    In accordance with 4 CFR 102.13, all administrative charges incurred 
in connection with the referral of the debt to the IRS shall be added to 
the debt and thus increase the amount of the offset.



Sec.  89.41  Notice requirement before offset.

    A request for offset from an IRS tax refund will be made only after 
the Department has made a determination that an amount is owed and past-
due and provides the debtor with 60 days written notice. The 
Department's notice of intention to collect by IRS tax refund offset 
(Notice of Intent) includes:
    (a) The amount of the debt;
    (b) That unless the debt is repaid within 60 days from the date of 
the Department's Notice of Intent, the Department will refer the debt to 
the IRS for offset against any amount due the debtor as a tax refund;
    (c) That the debtor has a right to present information that all or 
part of the debt is not past-due or legally enforceable; and
    (d) A mailing address for forwarding any written correspondence and 
a contact name and telephone number for any questions.



Sec.  89.43  Review within the Department.

    (a) Notification by debtor. A debtor who receives a Notice of Intent 
may present, for 60 days from the date of the Notice of Intent, 
information that

[[Page 721]]

all or part of the debt is not past-due or legally enforceable. 
(However, this does not extend the regulatory period for submitting 
written statements or for requesting an administrative hearing on the 
merits of an alleged violation, nor does it extend the period to appeal 
an assessed civil penalty.) To comply with this procedure, the debtor 
must:
    (1) Send a written request for a review of the information to the 
address provided in the notice.
    (2) State in the request the amount disputed and the reasons why the 
debtor believes that the debt is not past-due or legally enforceable.
    (3) Include in the request any documents which the debtor wishes to 
be considered or state that additional information will be submitted 
within the remainder of the 60 day period.
    (b) Submission of information. The debtor may submit information 
showing that all or part of the debt is not past-due or not legally 
enforceable along with the notification required by paragraph (a) of 
this section. Failure to submit the information within the remainder of 
the 60 day period will be interpreted as there is no additional 
information for consideration.
    (c) Review of the information. The Department considers all 
available information related to the issue of whether the debt is past-
due and the issue of whether the debt is legally enforceable. After a 
decision has been reached, the Department notifies the debtor whether 
the Department has sustained amended, or cancelled its determination 
that the debt is past-due and legally enforceable.



Sec.  89.45  Department determination.

    (a) Following review of the information, the Department notifies the 
debtor with a written decision that includes the supporting rationale.
    (b) If the Department either sustains or amends its determination, 
it shall notify the debtor that the debt is being referred to the IRS 
for offset against the debtor's Federal income tax refund. If the 
Department determines that there is no legally enforceable debt or that 
full payment has been made, the case will be closed.



Sec.  89.47  Stay of offset.

    If the debtor timely notifies the Department that he or she is 
complying with the procedures in Sec.  89.43(a) of this subpart and 
timely submits additional information in accordance with Sec.  89.43(b) 
of this subpart, the debt will not be referred to the IRS while the 
matter is under review by the Department. Referral will not be made 
until the issuance of a written decision, in accordance with Sec.  89.45 
of this subpart, which sustains or amends the Department's original 
determination.



PART 91_INTERNATIONAL AIR TRANSPORTATION FAIR COMPETITIVE PRACTICES-
-Table of Contents



Sec.
91.1 Purpose.
91.3 Investigations.
91.5 Findings and recommendations.
91.7 Determination of compensatory charges.
91.9 Distribution of compensatory funds.
91.11 Standards.
91.13 Refunds.

    Authority: Secs. 2-3, 88 Stat. 2103, 49 U.S.C. 1159a and 1159b, Pub. 
L. 93-623.

    Source: 41 FR 54770, Dec. 15, 1976, unless otherwise noted.



Sec.  91.1  Purpose.

    The purpose of this part is to prescribe the Secretary's role in 
executing his responsibilities under sections 2 and 3 of the 
International Air Transportation Fair Competitive Practices Act of 1974 
to the end that U.S. flag air carriers operating in foreign air 
transportation are protected from all forms of discrimination or unfair 
competitive practices and are compensated for excessive or otherwise 
discriminatory charges levied by foreign governments or other foreign 
entities for the use of airport or airway property.



Sec.  91.3  Investigations.

    The Assistant Secretary for Policy, Plans and International Affairs 
(Assistant Secretary), in coordination with the General Counsel and the 
Federal Aviation Administrator (Administrator), on complaint of any U.S. 
flag air carrier or on their own initiative,

[[Page 722]]

shall investigate: (a) Instances of alleged excessive or otherwise 
discriminatory user charges or (b) discriminatory or unfair competitive 
practices to which U.S. flag air carriers are subjected by a foreign 
government or other foreign entity. Excessive or otherwise 
discriminatory charges include, but are not limited to, unreasonable 
landing fees, unreasonable monopoly ground handling fees and 
unreasonable air navigation charges. Discriminatory or unfair 
competitive practices include, but are not limited to, unreasonably 
differentiated fuel allocations, cargo, charter or currency restrictions 
and inferior monopoly ground handling services.



Sec.  91.5  Findings and recommendations.

    (a) Upon finding that a foreign government or entity imposes 
excessive or otherwise discriminatory charges against U.S. flag air 
carriers or causes such carriers to be subjected to discriminatory or 
unfair competitive practices, the Assistant Secretary, in coordination 
with the General Counsel and the Administrator, shall determine the 
extent of the discrimination or unfair competitive practices.
    (b) Where the matter involves excessive or otherwise discriminatory 
charges, the Assistant Secretary shall prepare a report and recommend 
that the Secretary promptly submit a report of the case to the Secretary 
of State and the Civil Aeronautics Board in accordance with section 11 
of the International Aviation Facilities Act, 49 U.S.C. 1159a.
    (c) Where the matter involves discrimination or unfair competitive 
practices other than user charges, the Assistant Secretary shall prepare 
a report and recommend that the Secretary take such other action within 
the jurisdiction of the Department as is appropriate under the 
circumstances in accordance with 49 U.S.C. 1159b.
    (d) If the Secretary determines, after review of the report and 
recommendations made under paragraph (b) of this section, that 
unreasonably excessive or otherwise discriminatory charges exist, the 
Secretary will submit a report on the matter to the Secretary of State 
and the Chairman of the Civil Aeronautics Board in accordance with 49 
U.S.C. 1159a.
    (e) If the Secretary determines, after review of the report and 
recommendations made under paragraph (c) of this section, that 
discriminatory or unfair competitive practices exist, the Secretary will 
commence all appropriate action within his jurisdiction in accordance 
with 49 U.S.C. 1159b.



Sec.  91.7  Determination of compensatory charges.

    (a) Upon indication by the Secretary of State that the excessive or 
otherwise discriminatory user charges have not been reduced or 
eliminated, the Secretary will direct the Assistant Secretary to compute 
the appropriate amount of compensatory charges.
    (b) Upon approving the amount of compensatory charges computed under 
paragraph (a) of this section, the Secretary will notify the Secretary 
of State and the Secretary of the Treasury of his determination.



Sec.  91.9  Distribution of compensatory funds.

    (a) On or after January 1 and July 1 of each year, each U.S. flag 
air carrier which has been subjected to excessive or otherwise 
discriminatory charges for which compensatory charges have been 
collected shall, upon compliance with paragraph (c) of this section, be 
entitled to pro rata reimbursement for excessive or otherwise 
discriminatory charges incurred to date, not to exceed the amount of 
such charges actually paid by that carrier.
    (b) The Secretary will publish in the Federal Register, at least 30 
days before a U.S. flag air carrier becomes entitled to reimbursement, a 
notice setting forth the procedures to be followed in making claims for 
reimbursement. This notice will specify the form in which application 
shall be made and the specific items of proof, if any, to be submitted.
    (c) On or after January 1 and July 1 of each year, each U.S. flag 
carrier claiming a right to reimbursement shall apply for such 
reimbursement in accordance with the Federal Register notice referred to 
in paragraph (b) of this section.

[[Page 723]]

    (d) The Assistant Secretary shall, on the basis of the application 
and such other data as may be available, compute the amount to which 
such carrier is entitled.
    (e) Subject to the provisions of Sec.  91.13(b), upon approving the 
computation made by the Assistant Secretary, the Secretary shall issue 
such certificate as will entitle each such carrier to payment from the 
account maintained by the Secretary of the Treasury for this purpose.



Sec.  91.11  Standards.

    (a) To minimize the burden of implementing this part on the United 
States, on U.S. flag air carriers and on foreign air carriers, estimates 
and periodic adjustments will be used to determine the amount of 
discrimination and compensatory charges therefor.
    (b) For the purpose of determining the amount of excessive or 
otherwise discriminatory charges imposed upon U.S. flag air carriers by 
an entity:
    (1) A service or use of airport or airway property includes, but is 
not limited to, fueling, food service, ticketing, baggage handling, 
runways, ramps, parking areas, navigational aids, communications 
facilities or any other service necessary and incidental to the conduct 
of a flight.
    (2) An excessive or otherwise discriminatory charge includes, but is 
not limited to, a charge substantially above the cost of providing a 
service or any charge for a service that is substantially inferior to 
that which the U.S. flag air carrier could have provided for itself, at 
the same cost, by contract or otherwise (see also Sec.  91.3).
    (c) In determining the amount of compensatory charge:
    (1) The total amount of excessive or otherwise discriminatory 
charges levied against U.S. flag air carriers will be estimated in 
dollars.
    (2) The total volume of operations to the United States by air 
carriers of the nation concerned will be estimated for the succeeding 
six-month period.
    (3) The total amount of excessive or otherwise discriminatory 
charges in paragraph (c)(1) of this section will be divided by the total 
volume of operations in paragraph (c)(2) of this section, and
    (4) The quotient thus computed (which may be adjusted to reflect the 
type of aircraft) will constitute the compensatory charge to be 
collected as a condition to acceptance of the general declaration at the 
time of landing or takeoff of such air carriers of the nation concerned.



Sec.  91.13  Refunds.

    (a) Where, in his discretion, the Secretary finds that good cause 
has been shown, the Secretary may authorize a refund of collected 
compensatory charges. For purposes of this section, good cause includes, 
but is not limited to, an error of fact, a miscalculation, or a 
determination that an original conclusion of entitlement was 
insufficient, invalid, erroneous or invalidated by subsequent events.
    (b) Notwithstanding the provisions of Sec.  91.9(e) the Secretary 
may suspend for a reasonable time the issuance of a certificate of 
entitlement upon a showing by a payor of compensatory charges that there 
is a substantial likelihood that the payor will make a showing of good 
cause under Sec.  91.13(a).
    (c) Notwithstanding the provisions of paragraphs (a) and (b) of this 
section, the issuance of a certificate of entitlement under Sec.  
91.9(e) or the distribution to U.S. flag air carriers of funds collected 
under this part shall be with prejudice to any claim for refund under 
this section.



PART 92_RECOVERING DEBTS TO THE UNITED STATES BY SALARY OFFSET-
-Table of Contents



Sec.
92.1 Purpose.
92.3 Scope.
92.5 Definitions.
92.7 Notice, hearing, written response and decision.
92.9 Exceptions to notice, hearing, written response, and final 
          decision.
92.11 Demand for payment.
92.13 Request for hearing.
92.15 Request for hearing after time expires.
92.17 Form of hearings and written decisions.
92.19 Obtaining the services of a hearing official.
92.21 Deduction from pay.
92.23 Collection.
92.25 Source of deductions.
92.27 Duration of deductions.

[[Page 724]]

92.29 Limitation on amount of deductions.
92.31 Liquidation from final payment.
92.33 Recovery from other payments due a separated employee.
92.35 Interest, penalties and administrative costs.
92.37 Non-waiver of rights by payment.
92.39 Refunds.
92.41 Requesting recovery when the Department is not the paying agency.
92.43 Requests for recovery when the Department is the paying agency.
92.45 Other debt collections.

    Authority: 5 U.S.C. 5514, as amended; 5 CFR part 550, subpart K; 4 
CFR parts 101-105.

    Source: 53 FR 4171, Feb. 12, 1988, unless otherwise noted.



Sec.  92.1  Purpose.

    This part implements 5 U.S.C. 5514 (Installment Deduction for 
Indebtedness to the United States), as amended by the Debt Collection 
Act of 1982 (Pub. L. 97-365, 96 Stat. 1749, 1751). It supplements 5 CFR 
part 550, subpart K, and the Federal Claims Collections Standards (4 CFR 
parts 101-105) issued jointly by the Comptroller General of the United 
States and the Attorney General of the United States under 31 U.S.C. 
3711(e)(2). It sets forth the procedures by which the Department of 
Transportation (DOT), including its operating elements (see 49 CFR 1.3):
    (a) Collects debts owed to the United States by current and former 
DOT employees;
    (b) Determines and collects interest and other charges on that 
indebtedness.
    (c) Offsets the salary of DOT employees to collect debts owed to the 
United States by those employees; and,
    (d) Obtains salary offset to collect debts owed to the United States 
by employees of other agencies under programs administered by DOT.



Sec.  92.3  Scope.

    The provisions of this part are applicable to the indebtedness of a 
current or former employee of DOT incurred under any program 
administered by DOT. The provisions of this part do not apply to the 
collection of indebtedness by authority other than 5 U.S.C. 5514.



Sec.  92.5  Definitions.

    As used in this part:
    (a) Agency means an Executive Agency as defined by section 105 of 
title 5, United States Code, the U.S. Postal Service, the U.S. Postal 
Rate Commission, a Military Department as defined by section 102 of 
title 5, United States Code, an agency or court in the judicial branch, 
an agency of the legislative branch, and any other independent 
establishments which are entities of the Federal Government. In DOT each 
operating element will act for the agency in collecting debts under this 
rule.
    (b) Creditor agency means the agency to which the debt is owed.
    (c) Debt means an amount owed to the United States from sources 
which include, but are not necessarily limited to, erronerous payments 
made to employees, overpayments of benefits, salary or other allowances, 
loans insured or guaranteed by the United States and all other amounts 
due the United States from fees, leases, rents, royalties, services, 
sales of real or personal property, overpayments, penalties, damages, 
interest, fines and forfeitures (except those arising under the Uniform 
Code of Military Justice) and all other similar sources. This term does 
not include a Government claim arising under the Internal Revenue Code 
of 1954 (26 U.S.C. 1-9602) as amended; the Social Security Act (42 
U.S.C. 301-1397f); the tariff laws of the United States; or any case 
where collection of a debt by salary offset is explicitly provided for 
or prohibited by another statute (e.g., emergency and travel advances 
under 5 U.S.C. 5522, 5705 or 5724 and employee training expenses under 5 
U.S.C. 4108).
    (d) Debt Claim Form means the form used by DOT when requesting that 
an agency, other than DOT, assist in the recovery of funds.
    (e) Delinquent debt means a debt which has not been paid by the date 
specified in the agency's initial written notification or applicable 
contractual agreement, unless other satisfactory payment arrangements 
have been made by that date, or if, at any time thereafter, the debtor 
fails to satisfy obligations under a payment agreement with the creditor 
agency.
    (f) Disposable pay means that part of current basic pay, special 
pay, incentive pay, retired pay, retainer pay, or

[[Page 725]]

in the case of an employee not entitled to basic pay, other authorized 
pay remaining after the deduction of any amount required by law to be 
withheld. (See 5 CFR 581.105 (b) through (f) for items required by law 
to be withheld, and therefore excluded from disposable pay for the 
purposes of this regulation).
    (g) DOT operating element (see 49 CFR 1.3) means a DOT Operating 
Administration including--
    (1) U.S. Coast Guard.
    (2) Federal Aviation Administration.
    (3) Federal Highway Administration.
    (4) Federal Railroad Administration.
    (5) National Highway Traffic Safety Administration.
    (6) Urban Mass Transportation Administration.
    (7) St. Lawrence Seaway Development Corporation.
    (8) Maritime Administration.
    (9) Research and Special Program Administration.
    (10) The Office of the Secretary.
    (h) Employee means a current or former employee of a Federal agency, 
including a member of the Armed Forces (including retired members) or a 
Reserve of the Armed Forces (Reserves). However, employees paid from 
non-appropriated funds are not included.
    (i) FCCS means the Federal Claims Collection Standards, 4 CFR Ch. 
II, jointly published by the Department of Justice and the General 
Accounting Office.
    (j) Hearing means an informal conference before a hearing official 
in which the employee and the DOT operating element are given an 
opportunity to present evidence, witnesses, and argument. The hearing 
official shall be either an administrative law judge or an individual 
not under the supervision or control of the Department.
    (k) Paying agency means the agency authorizing the payment of the 
employee's current pay.
    (l) Salary offset means an administrative offset to collect a debt 
under 5 U.S.C. 5514 by deduction(s) at one or more officially 
established pay intervals from the current pay account of a present or 
former employee with or without his or her consent. It includes a single 
offset from the final salary of an employee whose employment ends.
    (m) Waiver means the cancellation, remission, forgiveness or non-
recovery of a debt allegedly owed by an employee to an agency as 
permitted or required by 5 U.S.C. 5584, 5 U.S.C. 8346(b), 10 U.S.C. 
2774, or 32 U.S.C. 716, or any other law.



Sec.  92.7  Notice, hearing, written response and decision.

    (a) Except as provided in Sec.  92.9 of this part, each employee 
from whom the department proposes to offset a debt against the Federal 
pay of an employee who is indebted to the United States under a program 
administrated by DOT under these regulations is entitled to receive a 
minimum of 30 days written notice as described in Sec.  92.11 of this 
part (see also Sec.  92.21(a)).
    (b) Each employee owing a debt to the United States which will be 
collected by salary offset is entitled to petition for a hearing before 
collection starts. This petition shall be filed directly with the 
accounting or finance office of the DOT creditor operating element which 
shall make appropriate hearing arrangements consistent with law and 
regulations. The DOT creditor operating element shall provide an 
explanation of the rights of the employee. If a hearing is provided, the 
following issues shall be heard:
    (1) The determination of the DOT creditor operating element 
concerning the existence and amount of the debt; and
    (2) The terms of the repayment schedule, if not previously 
established by written agreement between the employee and the DOT 
creditor operating element. (See Sec.  92.21(c) regarding copy of 
written decision by hearing officer describing method and amount of 
salary offset).



Sec.  92.9  Exceptions to notice, hearing, written response, and
final decision.

    (a) Exceptions. The procedural requirements of 5 U.S.C. 5514 do not 
apply to recovery by way of retroactive

[[Page 726]]

deductions for administrative adjustments associated with the Federal 
benefits program. In such cases the content of the notification to 
employees is stated in Sec.  92.9(b).
    (b) Simplified procedures to be followed. In the event that a 
retroactive deduction from pay or allowances is required to recover an 
insufficiency of deductions arising through normal processing delays, 
and those insufficient deductions did not occur in more than four pay 
periods, rather than following the specific procedures required by 5 
U.S.C. 5514(a)(2), and set forth in Sec.  Sec.  92.11 through 92.17 of 
this part, the DOT creditor operating element shall issue in advance of 
the collection a simplified notice to the employee that:
    (1) Because of the employee's election for changes in voluntary 
payroll deduction, corresponding deductions shall be imposed on the 
employee's salary to cover the period between the effective date of the 
election and the first regular withholding. The employee may dispute the 
amount of the retroactive collection by notifying his or her accounting 
or finance officer; or
    (2) Due to a normal ministerial adjustment in pay or allowances 
which could not be placed into effect immediately, future pay will be 
reduced to permit the DOT creditor operating element to recover any 
excess pay or allowances received by the employee. The employee may 
dispute the amount of the retroactive collection by notifying his or her 
accounting or finance officer.
    (c) Limitation on exceptions. The exceptions described in paragraph 
(a) of this section shall not include a recovery required to be made for 
any reason other than routine processing delays in putting the change 
into effect, even if the period of time for which the amounts must be 
retroactively recovered is less than four pay periods. If normal 
processing delays exceed four pay periods, then the full procedures 
prescribed under 5 U.S.C. 5514 and Sec. Sec.  92.11 through 92.17 of 
this part will be extended to the employee.

[53 FR 4171, Feb. 12, 1988, as amended at 53 FR 51279, Dec. 21, 1988]



Sec.  92.11  Demand for payment.

    (a) The DOT creditor operating element shall send a debtor a total 
of three progressively stronger written demands at not more than 30-day 
intervals, unless a response to the first or second demand indicates 
that a further demand would be futile and the debtor's response does not 
require rebuttal (see also Sec.  92.21(a)). Other information may also 
indicate that additional written demands are unnecessary.
    (b) The initial written demand for payment shall inform the debtor 
of:
    (1) The basis for the indebtedness;
    (2) The amount of the claim;
    (3) The date by which payment is to be made:
    (4) The debtor's liability for interest, penalties and 
administrative charges in accordance with 31 U.S.C. 3717 and Sec.  92.35 
of this part, if payment is not received within 30 days of the due date 
(see Sec.  92.35 for details regarding interest, penalties and 
administrative costs);
    (5) The intent of the agency to collect by salary offset, including 
asking the assistance of other Federal agencies to help in the offset 
whenever possible, if the debtor:
    (i) Has not made payment by the payment due date;
    (ii) Has not requested a review of the claim within the agency as 
set out in paragraph (b)(8) of this section; or
    (iii) Has not made an arrangement for payment by the payment due 
date:
    (6) The possible submission of claims to a collection agency or 
referral to the General Accounting Office or the Department of Justice 
for litigation in accordance with the procedures in 4 CFR part 105.
    (7) The right of the debtor to inspect and copy the records of the 
agency related to the claim. Any reasonable costs associated with the 
inspection and copying of these records shall be borne by the debtor. 
The debtor shall give reasonable notice in advance to the agency of the 
date upon which he or she intends to inspect and copy the records 
involved.
    (8) The right of the debtor to a review of the claim within the 
agency. If the claim is disputed in full or in part, the debtor shall 
respond to the demand by

[[Page 727]]

making a request in writing for a review of the claim within the agency 
by the payment due date stated in the demand. The debtor's written 
response shall state the basis for the dispute. If only part of the 
claim is disputed, the undisputed portion shall be paid by the due date. 
The DOT creditor operating element shall acknowledge receipt of the 
request for a review, and upon completion of consideration shall notify 
the debtor whether its determination has been sustained, amended, or 
canceled within 15 days of the receipt of the request for a review. If 
the DOT operating element either sustains or amends its determination, 
it shall notify the debtor of its intent to collect by salary offset 
unless payment is received within 15 days of the mailing of the 
notification of its decision following a review of the claim.
    (9) The right of the debtor to offer to make a written agreement to 
repay the amount of the claim (see Sec.  92.23). The acceptance of such 
an agreement is discretionary with the agency. If the debtor requests a 
repayment arrangement because a payment of the amount due would create a 
financial hardship, the DOT creditor operating element will analyze the 
debtor's financial condition. Depending on its evaluation of the 
financial strength of the debtor, the DOT operating element may agree to 
a written installment repayment schedule with the debtor. The debtor 
shall execute a confession of judgment note which specifies all of the 
terms of the arrangement. The size and frequency of installment payments 
should bear a reasonable relation to the size of the debt and the 
debtor's ability to pay. Interest, penalties and administrative charges 
shall be provided in the note (see Sec.  92.35). The debtor shall be 
provided with a written explanation of the consequences of signing a 
confession of judgment note. The debtor shall sign a statement 
acknowledging receipt of the written explanation which shall recite that 
the statement was read and understood before execution of the note and 
that the note is being signed knowingly and voluntarily. Some form of 
evidence of these facts shall be maintained in the agency's file on the 
debtor.
    (10) The right to an oral hearing or a hearing based on written 
submissions conducted by an administrative law judge or by a hearing 
official not under the control of the head of the Department in 
accordance with Sec.  92.13 of this part.
    (11) The consequences of any knowingly false statements, 
representations, or evidence provided by the employee, which may 
include:
    (i) Disciplinary procedures under 5 U.S.C. chapter 75, 5 CFR part 
752, or any other applicable statutes or regulations;
    (ii) Criminal penalties under 18 U.S.C. 286, 287, 1001 and 1002, or 
any other applicable statute; or,
    (iii) Penalties under the False Claims Act, 31 U.S.C. 3729, et seq., 
or any other applicable statute.
    (12) Proceedings under any other statutory authority for the 
collection of claims of the DOT operating element.
    (13) The fact that amounts paid on or deducted from the debt which 
are later waived or found not owed to the United States will be promptly 
refunded to the employee unless there are applicable contractual or 
statutory provisions to the contrary.
    (14) The name, address, and telephone number of the accounting or 
finance officer who may be contacted if the employee wishes to review 
the records or to obtain information.



Sec.  92.13  Request for hearing.

    (a) The employee shall be advised in the notification that a hearing 
may be requested by filing a written petition within 15 calendar days of 
receipt of the notification, addressed to the chief of the paying 
agency's accounting or finance office.
    (b) The petition shall state the grounds upon which the employee 
disputes the proposed collection of the alleged debt. The petition shall 
identify and explain with reasonable specificity the facts, evidence 
which, and witnesses who the employee believes support his or her 
position.
    (c) The timely filing of a petition for hearing shall stay any 
further collection proceedings. A decision by the administrative law 
judge or other hearing official (see Sec.  92.5(j)) will be issued at

[[Page 728]]

the earliest practical date, but no later than 60 days after the filing 
of a petition for hearing, unless a delay is granted at the request of 
the employee.



Sec.  92.15  Request for hearing after time expires.

    The Department may accept late requests for a hearing if the 
employee can show that delay in requesting a hearing beyond the period 
provided in the notice described in Sec.  92.11 of this part was caused 
by circumstances beyond his or her control or because of failure to 
receive notice of the time limit (unless he or she was otherwise aware 
of it) or because of new information.



Sec.  92.17  Form of hearings and written decisions.

    (a) Hearings shall consist of informal conferences before an 
administrative law judge or other hearing official (see Sec.  92.5(j)) 
in which the employee and the DOT creditor operating element are given 
full opportunity to present evidence, witnesses, and argument. The DOT 
operating element will maintain a summary record of a hearing provided 
under these procedures.
    (b) Written decisions provided after a request for hearing shall, at 
a minimum, summarize the evidence alleged to substantiate the nature and 
origin of the alleged debt; the administrative law judge's or other 
hearing official's analysis, findings, and conclusions; the amount and 
validity of the alleged debt; and, where applicable, the repayment 
schedule.
    (c) A copy of the administrative law judge's or other hearing 
official's final decision shall be provided to the employee as well as 
the chief of the office authorized to collect debts by deduction from 
salary.
    (d) The decision of the administrative law judge or other hearing 
official shall be final and binding on the parties.



Sec.  92.19  Obtaining the services of a hearing official.

    (a) Where a DOT operating element is the creditor agency, the chief 
of the appropriate accounting or finance office shall schedule a hearing 
before an administrative law judge or other hearing official.
    (b) If another (non-DOT) agency is the creditor agency, then it is 
the responsibility of that agency to arrange for a hearing if one is 
requested.
    (c) Agents for the paying agency are designated in appendix A to 5 
CFR part 581. (This appendix lists the agents designated to accept legal 
process for the executive branch, the U.S. Postal Service, the Postal 
Rate Commission, the District of Columbia, American Samoa, Guam, the 
Virgin Islands, and the Smithsonian Institution.)



Sec.  92.21  Deduction from pay.

    (a) After other, less severe collection actions have failed, the DOT 
operating element (see Sec.  92.5(g)) may implement steps to obtain 
collection by salary offset. The method and the amount of the salary 
offset shall be the method and amount stated in the creditor agency's 
demand letter (see Sec.  92.11) or notice (see Sec.  92.7), or, if 
applicable, in the decision of an administrative law judge or other 
hearing official after an employee-requested hearing on the matter. If a 
DOT operating element is the creditor, the procedures stated in Sec.  
92.11 shall be followed.
    (b) Before a collection by salary offset may be made, the chief of 
the accounting or finance office of the paying DOT operating element 
shall be furnished with certified documentation by the creditor agency 
indicating that the creditor agency has sent the employee a demand 
letter pursuant to Sec.  92.11 of this part stating as a minimum:
    (1) The nature and amount of the indebtedness and the intention of 
the agency to initiate, at the expiration of thirty days, a proceeding 
to collect the debt by salary offset; and an explanation of the rights 
of the employee under this subsection;
    (2) That the employee has the opportunity to inspect and copy 
Government records relating to the debt;
    (3) That the employee has an opportunity to enter into a written 
agreement with the agency to establish a schedule for the repayment of 
the debt;
    (4) That the employee has an opportunity for a hearing on the 
determination of the agency concerning the existence or the amount of 
the debt, and

[[Page 729]]

in the case of an individual whose repayment schedule is established 
other than by a written agreement as described in paragraph (b)(3) of 
this section concerning the terms of the repayment schedule; and
    (5) That the creditor agency's regulations implementing 5 U.S.C. 
5514 have been approved by OPM (see 5 CFR 550.1108(a)).
    (c) Where a hearing has been held, a copy of the decision of the 
administrative law judge or other hearing official must be furnished to 
the chief of the accounting or finance office of the paying DOT 
operating element before collection of the indebtedness by salary offset 
may be initiated. The method and amount of the offset will be as stated 
in the decision.



Sec.  92.23  Collection.

    (a) A debt shall be collected in a lump sum or by installment 
deductions at officially established pay intervals from an employee's 
current pay account, unless the employee and the DOT operating element 
agree to alternative arrangements for payment (see Sec.  92.11(b)(9) 
describing such voluntary repayment arrangements). The alternative 
arrangement shall be in writing, signed by both the employee and the 
chief of the appropriate accounting or finance office, and shall be 
documented in the DOT operating element's files.
    (b) Under 31 U.S.C. 3716 and 4 CFR 102.3(b)(3), agencies may not 
initiate offset to collect a debt more than 10 years after the 
Government's right to collect the debt accrued, unless facts material to 
the Government's rights to collect the debt were not known by the DOT 
operating element's official or officials charged with the 
responsibility to discover and collect the debt.



Sec.  92.25  Source of deductions.

    Except as provided in Sec.  92.31 and Sec.  92.33 of this part (with 
respect to separated employees), the paying DOT operating element will 
make deductions only from disposable pay (see Sec.  92.5(f)).



Sec.  92.27  Duration of deductions.

    Debts shall be collected in one lump sum where possible. However, if 
the employee is financially unable to pay in one lump sum or the amount 
of the debt exceeds 15 percent of disposable pay payable in one pay 
period, collection will be made in installments. Such installment 
deductions will be made over a period not greater than the anticipated 
period of employment or active duty, as the case may be, except as 
provided in Sec. Sec.  92.29, 92.31, and 92.33 of this part.



Sec.  92.29  Limitation on amount of deductions.

    The size and frequency of installment deductions shall bear a 
reasonable relation to the size of the debt and the employee's ability 
to pay. However, the amount deducted for any period may not exceed 15 
percent of the disposable pay from which the deduction is made, unless 
the employee has agreed in writing to the deduction of a greater amount.



Sec.  92.31  Liquidation from final payment.

    If the employee retires, resigns his or her employment, is 
terminated, or the employment or period of active duty ends before 
collection of the debt is completed, there shall be an offset from 
subsequent payments of any nature (e.g., final salary, lump sum leave, 
etc.) due the employee from the DOT operating element on the date of 
separation to the extent necessary to liquidate the debt.



Sec.  92.33  Recovery from other payments due a separated employee.

    If the debt cannot be liquidated by offset from any final payment 
due the employee as of the date of separation, the DOT operating element 
shall liquidate the debt by administrative offset pursuant to 31 U.S.C. 
3716 from later payments of any kind due the former employee from the 
United States, where appropriate (see Sec.  92.41(b)(2)(ii)).



Sec.  92.35  Interest, penalties and administrative costs.

    (a) Where a DOT creditor operating element (see Sec.  92.5(g)) is 
the creditor, it shall charge interest on an outstanding debt at the 
rate published by the Secretary of the Treasury in accordance with 31 
U.S.C. 3717. The rate of interest

[[Page 730]]

assessed shall be the rate of the current value of funds to the United 
States Treasury (i.e., the Treasury tax and loan account rate), as 
prescribed and published by the Secretary of the Treasury in the Federal 
Register and the Treasury Financial Manual Bulletins annually or 
quarterly, in accordance with 31 U.S.C. 3717. The DOT creditor operating 
element shall charge a penalty of six percent a year, in addition to 
interest, on any portion of a debt that is more than 90 days past due. 
It shall assess administrative charges to cover additional costs 
incurred in processing and handling the debt beyond the payment due 
date. The imposition of interest, penalties and administrative charges 
is made in accordance with 31 U.S.C. 3717 and 4 CFR 102.13.
    (b) Interest on debt shall begin to accrue on the date on which the 
debtor is first sent or delivered notice of the debt and of the interest 
requirements or, in the case of advance billings, on the calendar date 
following the specified due date of the debt provided the advance 
billing gives notice of the interest requirements for late payment. 
Interest on the debt shall continue to accrue until payment is received. 
Interest shall be calculated only on the principal of the debt (simple 
interest). The rate of interest charged shall be the rate in effect on 
the date from which interest begins to accrue, and shall remain fixed 
for the duration of the indebtedness.
    (c) A DOT creditor operating element shall waive the monthly 
interest on debt that is paid within 30 calendar days after the date on 
which interest began to accrue.
    (d) A DOT creditor operating element may waive interest, penalties 
and/or administrative charges if it finds that:
    (1) The debtor is unable to pay any significant sum toward the claim 
within a reasonable period of time;
    (2) Collection of interest, penalties or administrative charges will 
jeopardize collection of the principal of the debt; or
    (3) It is otherwise in the best interest of the United States, 
including the situation where an offset or installment payment agreement 
is in effect.



Sec.  92.37  Non-waiver of rights by payment.

    An employee's payment or agreement to pay, whether voluntary or 
involuntary, of all or any portion of an alleged debt being collected 
pursuant to these procedures shall not be construed as a waiver of any 
rights which the employee may have under this part to the extent of such 
payment or agreement.



Sec.  92.39  Refunds.

    (a) Amounts paid or deducted from the account of a current or former 
employee of the United States Government, pursuant to this part, for a 
debt which is found not owing to the United States shall be promptly 
refunded to the employee.
    (b) Amounts which are waived shall, after proper application, be 
promptly returned after approval of the application.



Sec.  92.41  Requesting recovery when the Department is not the paying
agency.

    (a) Format of the request for recovery. (1) Where the DOT operating 
element is the creditor agency and another agency is the paying agency, 
the chief of the accounting of finance office of the appropriate DOT 
operating element (see Sec.  92.5(g)) shall complete and certify the 
``Debt Claim Form'' (see Attachment 1), and attach a copy of the demand 
letter sent to the employee pursuant to Sec.  92.11 with a statement of 
the employee's response thereto, or, if a hearing was held pursuant to 
Sec.  92.13, attach a copy of the decision of the administrative law 
judge or other hearing official. The DOT creditor operating element 
shall certify that the employee owes the debt, the amount and basis of 
the debt, the date on which payment is due, the date the Government's 
right to collect the debt accrued, and that the Departmental regulations 
implementing 5 U.S.C. 5514 have been approved by the Office of Personnel 
Management.
    (2) If the collection is to be made in voluntary or involuntary 
installments (see Attachment 1), the DOT creditor operating element 
shall also advise the paying agency of the amount of the installments 
and, if a date for the beginning of payments other than the next

[[Page 731]]

officially established pay period is required, the date of the first 
installment.
    (3) Unless the employee has voluntarily agreed to the salary offset 
in writing or, in the absence of such agreement, has signed a statement 
acknowledging receipt of the procedures required by 5 U.S.C. 5514(a)(2) 
and the writing or statement is attached to the debt claim form, the DOT 
creditor operating element shall also indicate the action(s) taken under 
5 U.S.C. 5514 and give the date(s) the action(s) were taken.
    (b) Submitting the request for recovery--(1) Current employees. The 
DOT creditor operating element shall submit the ``Debt Claim Form'' 
(Attachment 1) to the employee's paying agency.
    (2) Employees who are separating or have separated--(i) Employees 
who are in the process of separating. If the employee is in the process 
of separating, the DOT creditor operating element shall submit its debt 
claim (Attachment 1) to the employee's paying agency for collection as 
provided in Sec.  92.31 of this part. The paying agency is required to 
certify the total amount of its collection made or to be made prior to 
separation and notify the DOT creditor operating element and the 
employee as provided in Sec.  92.41 (b)(2)(iii). If the paying agency is 
aware that the employee is entitled to payments from the Civil Service 
Retirement and Disability Fund, or other similar payments, it shall 
advise the DOT operating element and send a copy of the debt claim and 
certification to the agency responsible for making such payments as 
notice that a debt is outstanding.
    (ii) Employees who have already separated. If the employee has 
already separated and all payments due from his or her former paying 
agency have been paid, the DOT operating element may request, unless 
otherwise prohibited for example by court order, that monies which are 
due and payable to the employee from the Civil Service Retirement and 
Disability Fund (5 CFR 831.1801 et seq.) or other similar funds, be 
administratively offset in order to collect the debt (see 31 U.S.C. 3716 
and the FCCS).
    (iii) Employees who transfer from one paying agency to another. If, 
after the DOT creditor operating element has submitted the debt claim to 
the employee's paying agency, the employee transfers to a position 
served by a different paying agency before the debt is collected in 
full, the paying agency from which the employee separates shall certify 
the total amount of the collection made on the debt. One copy of the 
certification shall be furnished to the employee and another to the DOT 
operating element along with notice of the employee's transfer. The 
original of the debt claim form shall be inserted in the employee's 
official personnel folder along with a copy of the certification of the 
amount which has been collected. Upon receiving the official personnel 
folder, the new paying agency shall, in accordnce with the DOT operating 
element's properly certified claim, resume the collection from the 
employee's current pay account and notify the employee and the DOT 
creditor operating element of the resumption. The DOT operating element 
is not required to repeat the required collection procedures from the 
beginning in order to resume the collection. However, it shall be the 
responsibility of the DOT creditor operating element to review the debt 
upon receiving the former paying agency's notice of the employee's 
transfer to make sure the collection is resumed by the new paying 
agency.



Sec.  92.43  Requests for recovery when the Department is the paying
agency.

    (a) Incomplete request for recovery. If the request for recovery 
received by the chief of the accounting or finance office of the 
appropriate DOT operating element is incomplete in any respect (see 
Sec.  92.21(b)) including, but not limited to, the failure to certify in 
writing that the employee owes the debt, the amount and basis of the 
debt, the date on which payment(s) is due, the date the creditor 
agency's right to collect the debt first accrued, and that the creditor 
agency's regulations implementing 5 U.S.C. 5514 were approved by OPM, 
the request shall be returned to the creditor agency with a statement of 
the deficiency. No action to implement salary offset may be initiated

[[Page 732]]

until a complete request has been received.
    (b) Complete request for recovery. If a complete request for 
recovery is received by the chief of the accounting or finance office of 
the appropriate DOT operating element, a copy of the request and any 
supporting documentation shall be transmitted to the appropriate payroll 
office, and deductions shall be scheduled to begin at the next 
officially established pay interval. A copy of the request and any 
supporting documentation shall be provided to the debtor, along with a 
notice of the date deductions will begin.
    (c) The DOT operating element may not review the merits of the 
creditor agency's determination with respect to the amount or validity 
of the debt as stated in the request for recovery.



Sec.  92.45  Other debt collections.

    Separate rules exist for general collection of debts owed the United 
States under 31 U.S.C. 3711, 3716-18; 4 CFR Ch. II.

[[Page 733]]

[GRAPHIC] [TIFF OMITTED] TC02FE91.213

                           PART 93 [RESERVED]

                           PART 95 [RESERVED]



PART 98_ENFORCEMENT OF RESTRICTIONS ON POST-EMPLOYMENT ACTIVITIES-
-Table of Contents



           Subpart A_Administration of Enforcement Proceedings

Sec.
98.1 Purpose.
98.2 Definitions.
98.3 Reports of apparent violations.

[[Page 734]]

98.4 Initiation of administrative disciplinary proceeding.
98.5 Former employee response to notice.
98.6 Examiner.
98.7 Hearing.
98.8 Decision by examiner.
98.9 Decision if hearing waived.
98.10 Appeal.
98.11 Final administrative decision.

                   Subpart B_Administrative Sanctions

98.12 Administrative sanctions.

                        Subpart C_Judicial Review

98.13 Judicial review.

    Authority: 18 U.S.C. 207; Pub. L. 96-28.

    Source: 48 FR 12383, Mar. 24, 1983, unless otherwise noted.



           Subpart A_Administration of Enforcement Proceedings



Sec.  98.1  Purpose.

    The purpose of this part is to set forth the administrative 
enforcement procedures that the Department of Transportation will follow 
when there is an allegation that a former employee of the Department has 
violated 18 U.S.C. 207.



Sec.  98.2  Definitions.

    For the purposes of this part, the following definitions apply:
    (a) Administration means each of the following:
    (1) The United States Coast Guard.
    (2) The Federal Aviation Administration.
    (3) The Federal Highway Administration.
    (4) The Federal Railroad Administration.
    (5) The National Highway Traffic Safety Administration.
    (6) The Urban Mass Transportation Administration.
    (7) The Saint Lawrence Seaway Development Corporation.
    (8) The Research and Special Programs Administration.
    (9) The Maritime Administration.
    (b) Department means the Department of Transportation.
    (c) 18 U.S.C. 207 means 18 U.S.C. 207 (a), (b), or (c) or any 
regulations issued under 18 U.S.C. 207.
    (d) Secretary means the Secretary of Transportation.



Sec.  98.3  Reports of apparent violations.

    Any person may report, to the Assistant General Counsel for 
Environmental, Civil Rights and General Law, an apparent violation by a 
former employee of the Department of 18 U.S.C. 207.



Sec.  98.4  Initiation of administrative disciplinary proceeding.

    (a) Whenever the Assistant General Counsel for Environmental, Civil 
Rights and General Law has determined that there is reasonable cause to 
believe that a former Departmental employee has violated 18 U.S.C. 207, 
the Assistant General Counsel for Environmental, Civil Rights, and 
General Law:
    (1) Shall expeditiously provide that information to the Director, 
Office of Government Ethics, and to the Criminal Division, Department of 
Justice; and
    (2) After coordinating any proceeding with the Criminal Division, 
Department of Justice, to avoid prejudicing criminal proceedings, may 
institute an administrative disciplinary proceeding in accordance with 
this part.
    (b) The person who shall provide for the prosecution of the alleged 
violation in an administrative disciplinary proceeding under this part 
(hereinafter referred to as the ``Departmental counsel'') is:
    (1) In a case where the last Departmental employer of the alleged 
violator is the Office of the Secretary, the Assistant General Counsel 
for Environmental, Civil Rights and General Law, or his or her designee; 
or
    (2) In a case where the last Departmental employer of the alleged 
violator is an administration, the Chief Counsel, or his or her 
designee, for that administration.
    (c) Before beginning an administrative disciplinary proceeding, the 
Departmental counsel shall provide the former employee with actual 
notice of the institution of a proceeding. This notice must include:
    (1) A statement of allegations and the basis for those allegations, 
which statement must be sufficiently detailed to enable the former 
employee to prepare an adequate defense;
    (2) Notification of the right to a hearing;

[[Page 735]]

    (3) An explanation of the method by which a hearing may be 
requested; and
    (4) A statement of the possible sanctions that may be imposed if a 
violation by the former employee is found to have occurred.



Sec.  98.5  Former employee response to notice.

    (a) Within 30 working days after service of a notice pursuant to 
Sec.  98.4(c), the former employee may submit to the Departmental 
counsel in writing:
    (1) A request for a hearing, which, if not all issues are disputed 
by the former employee, should specify those issues that are;
    (2) Any evidence and arguments in lieu of a hearing or
    (3) A statement that the allegations are true and set forth any 
factors that should be considered in determining the administrative 
sanction to be imposed.
    (b) The Department shall deem the right to a hearing to have been 
waived by the former employee if the former employee does not submit a 
request under paragraph (b)(1) of this section within 30 working days 
after service of notice pursuant to Sec.  98.4(c).



Sec.  98.6  Examiner.

    (a) The presiding official at a hearing held under this part and the 
deciding official under Sec.  98.9 of this part (hereinafter referred to 
as the ``examiner'') shall be designated by the Secretary.
    (b) The examiner shall not have been involved in any of the events 
specified in the allegations, shall not have been involved in the 
investigation of the allegations and the institution of the proceedings 
under this part, and shall not be or have been employed by the 
administration, or the Office of the Secretary if applicable, in which 
the alleged violation occurred.



Sec.  98.7  Hearing.

    (a) The examiner shall, within 30 working days of a request for a 
hearing under Sec.  98.5(b), schedule the hearing for a reasonable time, 
date, and place. The examiner shall grant any delays or continuances 
that the examiner determines to be necessary and appropriate for fair 
resolution of the case, with due regard to the former employee's need 
for adequate time to prepare a defense and for expeditious resolution of 
allegations that may be damaging to that former employee's reputation.
    (b) The following rights shall be granted to a former employee who 
requests a hearing under Sec.  98.5(b):
    (1) To represent oneself or to be represented by counsel.
    (2) To introduce and examine witnesses and to submit physical 
evidence.
    (3) To confront and cross-examine adverse witnesses.
    (4) To present oral argument.
    (5) To obtain a transcript or recording of the hearing on request 
from the official reporter upon payment of the fees fixed therefor.
    (c) In a hearing under this part, the Federal Rules of Civil 
Procedure and Evidence do not apply. However, the examiner may make such 
orders and determinations regarding discovery, admissibility of 
evidence, conduct of examination and cross-examination, and similar 
matters the examiner deems necessary or appropriate to ensure 
orderliness in the proceedings and fundamental fairness to the parties.



Sec.  98.8  Decision by examiner.

    (a) In a hearing under Sec.  98.7 of this part, the Departmental 
counsel must establish a violation by a preponderance of the evidence.
    (b) The examiner shall make a decision exclusively on matters of 
record in the proceeding and shall set forth in the decision:
    (1) All findings of fact relevant to the matters at issue;
    (2) All conclusions of law relevant to the matters at issue; and
    (3) The sanction to be imposed, if any.



Sec.  98.9  Decision if hearing waived.

    (a) If the former employee waives or, in accordance with Sec.  
98.5(b) of this part, is deemed to have waived a hearing under this 
part, the examiner shall, after review of the record as it exists, make 
a decision as to whether the former employee is in violation of 18 
U.S.C. 207.
    (b) In a decision under paragraph (a) of this section, the 
requirements of Sec.  98.8 of this part apply.

[[Page 736]]



Sec.  98.10  Appeal.

    (a) Within 30 working days after receipt of a decision issued under 
Sec.  98.8 or Sec.  98.9 of this part, either the Departmental counsel 
or the former employee may appeal the decision to the Secretary.
    (b) In making a decision on an appeal, the Secretary shall consider 
only the evidence admitted during the prior proceeding and contained in 
the record of that proceeding.
    (c) If the Secretary modifies or reverses the initial decision, the 
Secretary shall specify the findings of fact and conclusions of law that 
are different from those of the examiner.



Sec.  98.11  Final administrative decision.

    The final administrative decision under this part shall be:
    (a) The decision of the examiner under Sec.  98.8(b), if there is no 
appeal under Sec.  98.10;
    (b) The decision by the examiner under Sec.  98.9, if a hearing is 
waived or is deemed to have been waived and there is no appeal under 
Sec.  98.10; or
    (c) The decision of the Secretary on an appeal under Sec.  98.10.



                   Subpart B_Administrative Sanctions



Sec.  98.12  Administrative sanctions.

    (a) The Secretary, in decisions under Sec.  98.10 of this part, and 
the examiner, in decisions under Sec.  98.8 and Sec.  98.9 of this part, 
may impose an administrative sanction against a former employee who, 
after a final administrative decision under this part, is found to be in 
violation of 18 U.S.C. 207.
    (b) The administrative sanctions that may be imposed under 
subsection (a) of this section are:
    (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 of any of its administrations on any 
matter of business for a period not to exceed five years; or
    (2) Taking other appropriate disciplinary action, such as a 
reprimand or suspension from participation in a particular matter or 
matters before the Department.



                        Subpart C_Judicial Review



Sec.  98.13  Judicial review.

    Any former employee found to have violated 18 U.S.C. 207 by a final 
administrative decision under this part may seek judicial review of 
disciplinary action imposed under this part.



PART 99_EMPLOYEE RESPONSIBILITIES AND CONDUCT--Table of Contents



                            Subpart A_General

Sec.
99.735-1 Cross-reference to ethical conduct standards and financial 
          disclosure regulations.

Subparts B-E [Reserved]

   Subpart F_Responsibilities of the Government Employee and Special 
     Government Employee Following Departure From Government Service

99.735-80 Applicability.
99.735-81 Post-employment duties and responsibilities.

Appendix A to Part 99--Categories of Financial Interests Exempted From 
          the Prohibitions of Section 208(a) of Title 18, United States 
          Code
Appendixes B-D to Part 99 [Reserved]
Appendix E to Part 99--Statutes Regulating Post-Employment 
          Responsibilities of Government and Special Government 
          Employees

    Authority: 49 U.S.C. 322; 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.

    Source: Amdt. 99-10, 42 FR 3119, Jan. 14, 1977, unless otherwise 
noted.



                            Subpart A_General



Sec.  99.735-1  Cross-reference to ethical conduct standards and
financial disclosure regulations.

    Employees of the Department of Transportation are subject to the 
executive branch-wide Standards of Ethical Conduct at 5 CFR part 2635, 
the Department of Transportation regulations at 5 CFR part 6001 which 
supplement the executive branch-wide standards and the executive branch-
wide financial

[[Page 737]]

disclosure regulations at 5 CFR part 2634.

[61 FR 39904, July 31, 1996]

Subparts B-E [Reserved]



   Subpart F_Responsibilities of the Government Employee and Special 
     Government Employee Following Departure From Government Service



Sec.  99.735-80  Applicability.

    The provisions of this subpart apply only to employees who 
terminated government service before January 1, 1991.

[58 FR 7995, Feb. 11, 1993]



Sec.  99.735-81  Post-employment duties and responsibilities.

    The duties and obligations of a Government employee (or a special 
Government employee) do not end when government service terminates by 
retirement, resignation, or for any other reason. In fact the U.S. Code 
sets forth specific criminal penalties for certain activities by former 
Government employees. To summarize broadly, section 207 of title 18, 
U.S. Code, prohibits a former Government employee from acting as agent 
or attorney in various types of proceedings and matters on behalf of a 
non-Government party when the employee was involved in the subject 
matter while working for the Government. The duration and nature of the 
prohibitions depend in part on the depth of the employee's involvement 
in the matter while in Government service. Section 208 of the same title 
relates to activities performed while a Government employee that benefit 
an employee's prospective private employer. All Government employees and 
special Government employees should become familiar with the provisions 
of the two statutory sections cited, which have been made a part of this 
regulation as appendix E, so that they will be aware of the restrictions 
which might affect them upon their termination from the Government 
service.





 Sec. Appendix A to Part 99--Categories of Financial Interests Exempted 
 From the Prohibitions of Section 208(a) of Title 18, United States Code

    I. (a) Pursuant to the authority of section 208(b) of title 18, 
United States Code, the following are exempted from the prohibitions of 
section 208(a) of title 18, United States Code, because they are too 
remote or too inconsequential to affect the integrity of an employee's 
services in any matter in which he may act in his governmental capacity.
    (1) Any holding in a widely held mutual fund, or regulated 
investment company, which does not specialize in an industry in which 
the possibility of conflict arise.
    (2) Continued participation in a bona fide pension, retirement, 
group life, health, or accident insurance plan or other employee welfare 
or benefit plan that is maintained by a business or nonprofit 
organization by which the employee was formerly employed, to the extent 
that the employee's rights in the plans are vested and require no 
additional services by him or further payments to the plans by the 
organization with respect to the services of the employee. In addition, 
to the extent that the welfare or benefit plan is a profit sharing or 
stock bonus plan, this exemption does not apply and the procedures 
prescribed in Sec.  99.735-15c (c) through (e) will apply to the 
interest of that employee in the plan.
    (3) Participation in an air carrier frequent flyers or substantially 
similar program that is available to the general public on the same 
terms and conditions and involves no direct financial interest in the 
carrier, such as stockholdings or similar types of investment interests.

[Amdt.99-10, 42 FR 3119, Jan. 14, 1977, as amended by Amdt. 99-14, 53 FR 
16414, May 9, 1988]



                Sec. Appendixes B-D to Part 99 [Reserved]



    Sec. Appendix E to Part 99--Statutes Regulating Post-Employment 
     Responsibilities of Government and Special Government Employees

    Note: This appendix applies only to employees who terminated 
government service before January 1, 1991.

Sec.  207 Disqualification of former officers and employees in matters 
          connected with former duties or offical responsibilities; 
          disqualification of partners.

    (a) Whoever, having been an officer or employee of the executive 
branch of the United States Government, of any independent

[[Page 738]]

agency of the United States, or of the District of Columbia, including a 
special Government employee, after his employment has ceased, knowingly 
acts as agent or attorney for anyone other than the United States in 
connection with any judicial or other proceeding, application, request 
for a ruling or other determination, contract, claim, controversy, 
charge, accusation, arrest, or other particular matter involving a 
specific party or parties in which the United States is a party or has a 
direct and substantial interest and in which he participated personally 
and substantially as an officer or employee, through decision, approval, 
disapproval, recommendation, the rendering of advice, investigation, or 
otherwise, while so employed, or
    (b) Whoever, having been so employed, within one year after his 
employment has ceased, appears personally before any court or department 
or agency of the Government as agent, or attorney for, anyone other than 
the United States in connection with any proceeding, application, 
request for a ruling or other determination, contract, claim, 
controversy, charge, accusation, arrest, or other particular matter 
involving a specific party or parties in which the United States is a 
party or directly and substantially interested, and which was under his 
official responsibility as an officer or employee of the Government at 
any time within a period of one year prior to the termination of such 
responsibility:
    Shall be fined not more than $10,000 or imprisoned for not more than 
two years, or both: Provided, That nothing in subsection (a) or (b) 
prevents a former officer or employee, including a former special 
Government employee, with outstanding scientific or technological 
qualifications from acting as attorney or agent or appearing personally 
in connection with a particular matter in a scientific or technological 
field if the head of the department or agency concerned with the matter 
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.
    (c) Whoever, being a partner of an officer or employee of the 
executive branch of the United States Government, of any independent 
agency of the United States, or of the District of Columbia, including a 
special Government employee, acts as agent or attorney for anyone other 
than the United States, in connection with any judicial or other 
proceeding, application, request for a ruling or other determination, 
contract, claim, controversy, charge, accusation, arrest, or other 
particular matter in which the United States is a party or has a direct 
and substantial interest and in which such officer or employee of the 
Government or special Government employee participates or has 
participated personally and substantially as a Government employee 
through decision, approval, disapproval, recommendation, the rendering 
of advice, investigation or otherwise, or which is the subject of his 
official responsibility:
    Shall be fined not more than $5,000, or imprisoned not more than one 
year, or both.
    A partner of a present or former officer or employee of the 
executive branch of the United States Government, of any independent 
agency of the United States, or of the District of Columbia or of a 
present or former special Government employee shall as such be subject 
to the provisions of sections 203, 205, and 207 of this title only as 
expressly provided in subsection (c) of this section. (Added Pub. L. 87-
349, section 1(a), Oct. 23, 1962, 76 Stat. 1123.)

Sec.  203 Acts affecting a personal financial interest.

    (a) Except as permitted by subsection (b) hereof, whoever, being an 
officer or employee of the executive branch of the United States 
Government, of any independent agency of the United States, or of the 
District of Columbia, including a special Government employee, 
participates personally and substantially as a Government officer or 
employee, through decision, approval, disapproval, recommendation, the 
rendering of advice, investigation, or otherwise, in a judicial or other 
proceeding, application, request for a ruling or other determination, 
contract, claim, controversy, charge, accusation, arrest, or other 
particular 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:
    Shall be fined not more than $10,000, or imprisoned not more than 
two years, or both.
    (b) Subsection (a) hereof shall not apply (1) if the officer or 
employee first advises the Government official responsible for 
appointment to his position of the nature and circumstances of the 
judicial or other proceeding, application, request for a ruling or other 
determination, contract, claim, controversy, charge, accusation, arrest, 
or other particular matter and makes full disclosure of the financial 
interest and receives in advance a written determination made by such 
official 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 such officer or employee, or (2) if, by general rule or regulation 
published in the Federal Register, the financial interest has been 
exempted from the requirements of clause (1) hereof as being too remote 
or too inconsequential to affect the

[[Page 739]]

integrity of Government officers' or employees' services. (Added Pub. L. 
87-849, section 1(a), Oct. 23, 1962, 76 Stat. 1124.)
    New 18 U.S.C. 208. This section forbids certain actions by an 
officer or employee of the Government in his role as a servant or 
representative of the Government. Its thrust is therefore to be 
distinguished from that of sections 203 and 205 which forbid certain 
actions in his capacity as a representative of persons outside the 
Government.
    Subsection (a) in substance requires an officer or employee of the 
executive branch, an independent agency or the District of Columbia, 
including a special Government employee, to refrain from participating 
as such in any matter in which, to his knowledge, he, his spouse, minor 
child or partner has a financial interest. He must also remove himself 
from a matter in which a business or nonprofit organization with which 
he is connected or is seeking employment has a financial interest.
    Subsection (b) permits the agency of an officer or employee to grant 
him an ad hoc exemption from subsection (a) if the outside financial 
interest in a matter is deemed not substantial enough to have an effect 
on the integrity of his services. Financial interests of this kind may 
also be made nondisqualifying by a general regulation published in the 
Federal Register.
    Section 208 is similar in purpose to the former 18 U.S.C. 434 but 
prohibits a greater variety of conduct than the ``transaction of 
business with * * * [a] business entity'' to which the prohibition of 
section 434 was limited. In addition, the provision in section 208 
including the interests of a spouse and others is new, as is the 
provision authorizing exemptions for insignificant interest.

[Amdt. 99-10, 42 FR 3119, Jan. 14, 1977, as amended by 58 FR 7995, Feb. 
11, 1993]



Sec. Appendix to Subtitle A--United States Railway Association--Employee 
                      Responsibilities and Conduct

                           Subpart A--General

Sec.
1 Purpose and policy.
3 Definitions.
5 Applicability.

 Subpart B--Ethical and Other Conduct and Responsibilities of Employees

7 General.
9 Gifts, entertainment, and favors.
11 Outside employment and other activities.
13 Financial interests.
15 Conflicts of interest.
17 Disqualification arising from personal financial interests.
19 Use of Association property or official title.
21 Misuse of information.
23 Indebtedness.
25 Miscellaneous provisions.

       Subpart C--Statements of Employment and Financial Interest

31 Employees required to submit statement.
33 Time and place for submission of employee statements.
35 Supplementary statements.
37 Committee on Commerce, Information not known by employee.
39 Information not required.
41 Confidentiality of employee's statement.
43 Interpretation and advisory service.

  Subpart D--Disqualification of Former Employees in Matters Connected 
  with Former Duties or Official Responsibilities; Disqualification of 
                                Partners

51 Matters in which employee participated personally and substantially.
53 Matters under employee's official responsibility.
55 Employee with outstanding scientific or technological qualifications.
57 Partner of employee.
Appendix 1--Categories of Financial Interests Exempted From the 
          Prohibitions of Sections 13(a), 15, and 17(a)
Appendix 2--List of Employees Required to Submit Statements of 
          Employment and Financial Interests Under Section 31 [Reserved]

    Authority: Sec. 202(a)(5)(2) of the Regional Rail Reorganization Act 
of 1973 (Pub. L. 93-236).

    Source: 39 FR 3825, Jan. 30, 1974, unless otherwise noted..

                           Subpart A--General

    Section 1. Purpose and policy. (a) These regulations implement Pub. 
L. 93-236, The Regional Rail Reorganization Act of 1973. They prescribe 
standards of ethical and other conduct, and reporting requirements, for 
employees of the United States Railway Association (the Association). 
The standards and requirements are appropriate to the particular 
functions and activities of the Association.
    (b) The absence of a specific published standard of conduct covering 
an act tending to discredit an employee of the Association does not mean 
that the act is condoned, is permissible, or would not call for and 
result in corrective or disciplinary action.
    (c) Personnel of the Association shall observe standards of conduct 
that will reflect credit on the Association.
    Sec. 3. Definitions. Unless the context requires otherwise, the 
following definitions apply in these regulations:

[[Page 740]]

    ``Association'' means the United States Railway Association 
established by Pub. L. 93-236.
    ``Chairman'' means the Chairman of the Board of Directors of the 
Association.
    ``Employee'' means an officer or employee of the Association.
    ``General Counsel'' means the General Counsel of the Association, or 
his designee.
    ``Includes'' means ``includes but is not limited to.''
    ``May'' is used in a permissive sense to state authority or 
permission to do the act prescribed, and the words ``a person may not * 
* *'' mean that a person is not required, authorized, or permitted to do 
the act prescribed.
    ``Shall'' is used in an imperative sense.
    Sec. 5. Applicability. These regulations apply to each employee of 
the Association.

 Subpart B--Ethical and Other Conduct and Responsibilities of Employees

    Sec. 7. General. (a) Each employee shall avoid any action, whether 
or not specifically prohibited by these regulations, which might result 
in or create the appearance of:
    (1) Using his Association office for private gain;
    (2) Giving preferential treatment to any person;
    (3) Impeding the efficiency or economy of the Association;
    (4) Losing complete independence or impartiality;
    (5) Making an Association decision outside of official channels; or
    (6) Affecting adversely the confidence of the public in the 
integrity of the Association.
    (b) An employee may not engage in criminal, infamous, dishonest, 
immoral, or notoriously disgraceful conduct, or any conduct prejudicial 
to the integrity of the Association.
    Sec. 9. Gifts, entertainment, and favors. (a) Except as provided in 
paragraphs (b) and (c) of this section, an employee may not solicit or 
accept, directly or indirectly, any gift, gratuity, favor, 
entertainment, food, lodging, loan, or other thing of monetary value, 
from a person or employer of a person who:
    (1) Has, or is seeking to obtain, contractual or other business or 
financial relationships with the Association.
    (2) Has interests which may be substantially affected by the 
performance or nonperformance of that employee's official duties.
    (b) Notwithstanding paragraph (a) of this section, an employee may:
    (1) Accept a gift, gratuity, favor, entertainment, loan, or other 
thing of value when the circumstances make it clear that an obvious 
family relationship rather than the business of the persons concerned is 
the motivating factor;
    (2) Accept food or refreshment of nominal value on infrequent 
occasions in the ordinary course of a luncheon or dinner meeting or 
other meeting or on an inspection tour if the employee is properly in 
attendance;
    (3) Accept unsolicited advertising or promotional material such as 
pens, pencils, note pads, calendars, or other items of nominal intrinsic 
value; or
    (4) Accept an invitation addressed to the Association, when approved 
by the General Counsel, to participate in an inaugural trip or similar 
ceremonial event related to transportation, and accept food, lodging, 
and entertainment incident thereto.
    (c) An employee may not solicit a contribution from another employee 
for a gift to an official superior, make a donation as a gift to an 
official superior, or accept a gift from an employee receiving less pay 
than himself. However, this paragraph does not prohibit a voluntary gift 
of nominal value or a donation in a nominal amount made on a special 
occasion such as marriage, illness, retirement, or transfer.
    Sec. 11. Outside employment and other activities. (a) An employee 
may not engage in any outside employment or other outside activity which 
is not compatible with the full and proper discharge of the duties and 
responsibilities of his employment with the Association. Incompatible 
activities include:
    (1) Acceptance of a fee, compensation, gift, payment of expenses, or 
any other thing of monetary value in circumstances in which acceptance 
may result in, or create the appearance of, a conflict of interest; and
    (2) Outside employment which tends to impair his mental or physical 
capacity to perform his duties and responsibilities of his employment 
with the Association in an acceptable manner.
    (b) An employee may not receive any salary or anything of monetary 
value from a private source as compensation for his services to the 
Association.
    (c) This section does not preclude an employee from participating in 
the affairs of, or accepting an award for a meritorious public 
contribution or achievement given by a charitable, religious, 
professional, social, or fraternal organization, a nonprofit educational 
or recreational organization, or a public service or civic organization.
    Sec. 13. Financial interests. (a) Except where authorized by statute 
or these regulations, an employee may not have a direct or indirect 
financial interest that conflicts substantially, or appears to conflict 
substantially, with his Association duties and responsibilities. In any 
case in which such a question of financial interest arises the 
procedures set forth in section 17 apply.
    (b) The fact that an employee is on leave of absence from employment 
with or has served as an attorney or consultant to, a railroad, or a 
company engaged in the manufacture,

[[Page 741]]

construction, or supply of railroad facilities and equipment, or a 
creditor of a railroad, shall not, of itself, be deemed to be a 
financial interest conflicting with his Association duties or 
responsibilities. This provision does not affect the obligation of such 
an employee to submit a statement of employment and financial interest 
as required by section 31(a)(1).
    (c) The fact that an employee owns shares of stock, corporate bonds, 
or other corporate securities in any single railroad, or a company 
engaged in the manufacture, construction or supply of railroad 
facilities and equipment, or a creditor of a railroad, having a current 
aggregate market value of $10,000 or more, or an option to purchase such 
securities, shall not, in itself, be deemed to be a financial interest 
conflicting with his Association duties or responsibilities. Such 
ownership must, however, be reported in a special statement of financial 
interest, in a manner specified by the General Counsel, which shall be 
available for public inspection.
    Sec. 15. Conflicts of interest. (a) Except where specifically 
exempted by statute or these regulations, a conflict of interest exists 
whenever the performance of the duties of an employee has or appears to 
have a direct and predictable effect upon a financial interest of such 
employee or of his spouse, minor child, partner, or person or 
organization with which he is associated or is negotiating for future 
employment.
    (b) A conflict of interest exists even though there is no reason to 
suppose that the employee will, in fact, resolve the conflict to his own 
personal advantage rather than to that of the Association.
    Sec. 17. Disqualification arising from personal financial interests. 
(a) Except as stated in paragraph (e) of this section, or except as 
permitted by statute, an employee may not participate personally and 
substantially as an employee, through decision, approval, disapproval, 
recommendation, the rendering of advice, investigation or otherwise, in 
a judicial or other proceeding, application, request for a ruling or 
other determination, contract, claim controversy, charge, accusation, or 
other particular matter in which, to his knowledge, he, his spouse, 
minor child, a blood relative who is a resident of the employee's 
household, 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, unless he shall cause 
the financial interest involved to be divested, or request a 
determination of the propriety of his participation in any matter by 
informing the General Counsel of the nature and circumstances of the 
matter and financial interest involved.
    (b) After examining the information submitted the General Counsel 
may:
    (1) Relieve the employee from participation in the matter and, if 
possible, reassign it to another employee who is not subordinate to the 
relieved employee;
    (2) Approve the employee's participation upon determining in writing 
that the interest involved is not so substantial as to be likely to 
affect the integrity of the services the Association may expect from the 
employee;
    (3) Recommend the reassignment of the employee; or
    (4) If none of these alternatives is feasible, direct the employee 
to cause the financial interest to be divested so that it no longer 
comes within the scope of this section.
    (c) In any case in which the General Counsel has reason to believe 
that an employee may have an interest that would be disqualifying under 
this section, he shall discuss the matter with the employee. If he finds 
that the interest exists, he may take any of the actions stated in 
paragraph (b) of this section.
    (d) In any case in which the employee is dissatisfied with the 
General Counsel's decision, the employee may appeal the matter to the 
Chairman of the Association for reconsideration and final determination 
of the appropriate action.
    (e) Information concerning categories of financial interests which 
are exempted from the prohibitions of Sec. Sec.  13(a), 15, and 
paragraph (a) of this section as being too remote or too inconsequential 
to affect the integrity of an employee's interest in a matter, are set 
forth in Appendix 1.
    Sec. 19. Use of Association property or official title. (a) An 
employee may not, directly or indirectly, use or allow the use of 
Association property of any kind, including property leased to the 
Association, for other than an officially approved activity. Each 
employee has a positive duty to protect and conserve Association 
property, including equipment, supplies, and other property entrusted or 
issued to him.
    (b) An employee may not, directly or indirectly, use or allow the 
use of his title or position in connection with any commercial 
enterprise or in endorsing any commercial product or service.
    Sec. 21. Misuse of information. An employee may not, for the purpose 
of furthering a private interest, directly or indirectly, use or allow 
the use of official information obtained through or in connection with 
his Association employment, if that information has not been made 
available by the Association to the general public.
    Sec. 23. Indebtedness. Each employee shall pay his just financial 
obligations in a proper and timely manner, especially those imposed by 
law such as Federal, State, or local taxes.

[[Page 742]]

For the purposes of this section ``just financial obligations'' means 
those that are recognized as such by the employee or reduced to a 
judgment by a court, and ``in a proper and timely manner'' means in a 
manner which the Association determines does not, under the 
circumstances, reflect adversely on the Association as his employer. The 
Association will not determine the validity or amount of a disputed debt 
and will not initiate action to collect such debts.
    Sec. 25. Miscellaneous provisions. (a) Each employee shall acquaint 
himself with these regulations which relate to his ethical and other 
conduct as an employee of the Association.
    (b) In the appointment of personnel and in assignment of their 
duties, the President of the Association shall take steps to avoid, to 
as great an extent as possible, any conflict between the Association 
duties and the private interests of such personnel.

       Subpart C--Statements of Employment and Financial Interest

    Sec. 31. Employees required to submit statement. (a) Each of the 
following employees shall submit a statement of employment and financial 
interest on a form provided by the Association:
    (1) Each employee who within the preceding two years was employed by 
or served as an attorney or consultant to, a railroad or a company 
significantly engaged in the manufacture, construction or supply of 
railroad facilities and equipment, including, but not limited to, 
rolling stock, terminal facilities, signal equipment, track and road 
bed, and electrical and communication transmission equipment. The 
General Counsel shall decide, in a doubtful case, whether the 
relationship to the railroad industry is sufficiently significant as to 
require submission of a statement of employment and financial interest.
    (2) Each employee who is in a position identified in Appendix 2.
    (b) Any employee who believes that his position has been improperly 
included as one requiring the submission of a statement of employment 
and financial interest is entitled to have that inclusion reviewed by 
the General Counsel.
    (c) Any employee in a position which meets the criteria in paragraph 
(a) of this section may be excluded from the reporting requirements of 
this section if the General Counsel determines that the duties of the 
position are at such a level of responsibility that the submission of a 
statement is not necessary because of the degree of supervision and 
review and the remote or inconsequential effect on the integrity of the 
Association.
    Sec. 33. Time and place for submission of employee statements. Each 
employee who is subject to the reporting requirements of sec. 31 shall 
submit his employment and financial interest statement to the General 
Counsel within 30 days after entering the employ of the Association.
    Sec. 35. Supplementary statements. (a) Each employee shall, not 
later than July 31 of each year, file a supplementary statement, 
showing, as of June 30 of that year, any change in, or addition to, the 
information contained in his statement of employment and financial 
interest. If changes or additions have not occurred, a negative report 
is required.
    (b) Compliance with the reporting requirements of this subpart is 
not an alternative to observance of the conflict-of-interest provisions 
of subpart B of these regulations, but is to facilitate uniform 
compliance with, and the orderly administration of subpart B.
    Sec. 37. Committee on Commerce, Information not known by employee. 
If any information required to be included on a statement of employment 
and financial interest or a supplementary statement, including any 
holding placed in trust, is not known to the employee but is known to 
another person, the employee shall request that other person to submit 
the information on his behalf, and the employee shall so notify the 
General Counsel.
    Sec. 39. Information not required. An employee is not required to 
submit on a statement of employment and financial interest or 
supplementary statement any information relating to his connection with, 
or interest in, a professional society, or a charitable, religious, 
social, fraternal, recreational, public service, civic, or political 
organization, or a similar organization not conducted as a business 
enterprise. For the purposes of this section, educational and other 
institutions doing research and development or related work involving 
grants of money from or contracts with the Association are considered to 
be ``business enterprises'' and are required to be included in the 
employee's statement of employment and financial interest.
    Sec. 41. Confidentiality of employee's statement. (a) Except for 
special statements of financial interest required by sec. 13(c) each 
statement of employment and financial interest and each supplementary 
statement shall be held in confidence. The reviewing officials and 
others who receive statements are responsible for maintaining them in 
confidence and shall not allow access to, or allow information to be 
disclosed from, a statement except to carry out the purposes of these 
regulations. Information may not be disclosed to any person outside the 
Association, except as the General Counsel may determine for good cause 
shown. No disclosure permitted by this paragraph may be made unless the 
affected employee has been notified that disclosure is contemplated, and 
the employee is given an opportunity to present

[[Page 743]]

reasons and arguments to maintain the confidentiality of the statement.
    (b) Each statement of employment and financial interest and each 
supplementary statement shall be maintained in the records of the 
Association.
    Sec. 43. Interpretation and advisory service. The General Counsel 
shall provide authoritative counseling and interpretations to employees 
who require advice and guidance on questions of conflicts of interest or 
any other matters of legal import covered by these regulations.

  Subpart D--Disqualification of Former Employees in Matters Connected 
  with Former Duties or Official Responsibilities; Disqualification of 
                                Partners

    Sec. 51. Matters in which employee participated personally and 
substantially. Except as permitted by sec. 55 hereof, an employee of the 
Association, after his employment has ceased, may not act as agent or 
attorney for anyone other than the Association in connection with any 
judicial or other proceeding, application, request for a ruling or other 
determination, contract claim, controversy, charge, accusation, arrest, 
or other particular matter involving a specific party or parties, in 
which the Association is a party or has a direct and substantial 
interest and in which he participated personally and substantially as an 
employee, through decision, approval, disapproval, recommendation, the 
rendering of advice, investigation, or otherwise, while so employed.
    Sec. 53. Matters under employee's official responsibility. Except as 
permitted by sec. 55 hereof, an employee of the Association may not, 
within one year after his employment has ceased, appear personally 
before the Association or any court or department or agency of the 
Government as agent, or attorney, for anyone other than the Association 
in connection with any proceeding, application, request for a ruling or 
other determination, contract, claim, controversy, charge, accusation, 
arrest, or other particular matter involving a specific party or 
parties, in which the Association is a party or directly and 
substantially interested, and which was under his official 
responsibility as an officer or employee of the Association at any time 
within a period of one year prior to the termination of such 
responsibility.
    Sec. 55. Employee with outstanding scientific or technological 
qualifications. A former employee with outstanding scientific or 
technological qualifications may act as attorney or agent or appear 
personally in connection with a particular matter in a scientific or 
technological field if the General Counsel certifies in writing, in 
advance, that the public interest would be served by such action or 
appearance.
    Sec. 57. Partner of employee. A partner of an employee of the 
Association may not act as agent or attorney for anyone other than the 
Association, in connection with any judicial or other proceeding, 
application, request for a ruling or other determination, contract, 
claim, controversy, charge, accusation, arrest, or other particular 
matter in which the Association is a party or has a direct and 
substantial interest and in which such employee of the Association 
participates personally and substantially as an employee through 
decision, approval, disapproval, recommendation, the rendering of 
advice, investigation or otherwise, or which is the subject of his 
official responsibility.

    Appendix 1--Categories of Financial Interests Exempted From the 
              Prohibitions of Sections 13(a), 15, and 17(a)

    I. (a) The following are exempted from the prohibitions of sections 
13(a), 15, and 17(a), because they are too remote or too inconsequential 
to affect the integrity of an employee's services in any matter in which 
he may act in his official capacity.
    (1) Any holding in a widely held mutual fund, or regulated 
investment company, which does not specialize in the transportation 
industry.
    (2) Ownership of shares of stock and of corporate bonds or other 
corporate securities, if the current aggregate market value of the 
stocks and other securities so owned in any single corporation is less 
than $10,000 and is less than one percent of the outstanding stock of 
the organization concerned, and if the employee, his spouse, or minor 
children are not active in the management of the organization and have 
no other connection with or interest in it.
    (3) Continued participation in a bona fide pension, retirement, 
deferred compensation, group life, health, or accident insurance plan or 
other employee welfare or benefit plan that is maintained by a business 
or nonprofit organization by which the employee was formerly employed, 
to the extent that the employee's rights in the plans are vested and 
require no additional services by him. To the extent the welfare or 
benefit plan is a profit sharing or stock bonus plan, this exemption 
does not apply.
    (b) Notwithstanding paragraph 1(a)(2), the interest of an employee, 
whose position is listed in section II of this appendix, shall not be 
exempt from the prohibitions of sections 13(a), 15, and 17(a), with 
respect to any stock or other security holding in an organization to 
which he is assigned, or for which he has specific responsibility as a 
part of his regular duties, for conducting inspections or issuing 
certificates, waivers, exemptions, or approvals.
    II. The following is a list of positions to which the exemption in 
paragraph 1(a)(2) of this appendix does not apply. This list may be 
amended at any time by the Association.
    [To be supplied]

[[Page 744]]

     Appendix 2--List of Employees Required To Submit Statements of 
      Employment and Financial Interest Under Section 31 [Reserved]

[39 FR 3825, Jan. 30, 1974]

[[Page 745]]



                              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 747]]



                    Table of CFR Titles and Chapters




                     (Revised as of October 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 748]]

     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 749]]

      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 750]]

    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)
       CIV  Office of the Intellectual Property Enforcement 
                Coordinator (Part 10400--10499)

                      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)

[[Page 751]]

      VIII  Agricultural Marketing Service (Federal Grain 
                Inspection Service, Fair Trade Practices Program), 
                Department of Agriculture (Parts 800--899)
        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]

[[Page 752]]

      XLII  Rural Business-Cooperative Service and Rural Utilities 
                Service, Department of Agriculture (Parts 4200--
                4299)
         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]

[[Page 753]]

         X  Consumer Financial Protection Bureau (Parts 1000--
                1099)
        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 754]]

      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 755]]

                     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 756]]

                          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 757]]

        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 758]]

        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 759]]

         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 760]]

                          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 761]]

       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  (Parts 103-001--104-099) [Reserved]
       105  General Services Administration (Parts 105-1--105-999)

[[Page 762]]

       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 763]]

                       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 764]]

                      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 765]]

        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 766]]

        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 767]]





           Alphabetical List of Agencies Appearing in the CFR




                     (Revised as of October 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 768]]

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 769]]

  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
  Presidential Documents                          3
  Science and Technology Policy, Office of        32, XXIV; 47, II
  Trade Representative, Office of the United      15, XX
     States
[[Page 770]]

Export-Import Bank of the United States           2, XXXV; 5, LII; 12, IV
Family Assistance, Office of                      45, II
Farm Credit Administration                        5, XXXI; 12, VI
Farm Credit System Insurance Corporation          5, XXX; 12, XIV
Farm Service Agency                               7, VII, XVIII
Federal Acquisition Regulation                    48, 1
Federal 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

[[Page 771]]

  Federal Management Regulation                   41, 102
  Federal Property Management Regulations         41, 101
  Federal Travel Regulation System                41, Subtitle F
  General                                         41, 300
  Payment From a Non-Federal Source for Travel    41, 304
       Expenses
  Payment of Expenses Connected With the Death    41, 303
       of Certain Employees
  Relocation Allowances                           41, 302
  Temporary Duty (TDY) Travel Allowances          41, 301
Geological Survey                                 30, IV
Government Accountability Office                  4, I
Government Ethics, Office of                      5, XVI
Government National Mortgage Association          24, III
Grain Inspection, Packers and Stockyards          7, VIII; 9, II
     Administration
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

[[Page 772]]

Indian Health Service                             25, V
Industry and Security, Bureau of                  15, VII
Information Resources Management, Office of       7, XXVII
Information Security Oversight Office, National   32, XX
     Archives and Records Administration
Inspector General
  Agriculture Department                          7, XXVI
  Health and Human Services Department            42, V
  Housing and Urban Development Department        24, XII, XV
Institute of Peace, United States                 22, XVII
Intellectual Property Enforcement Coordinator,    5, CIV
     Office of
Inter-American Foundation                         5, LXIII; 22, X
Interior, Department of                           2, XIV
  American Indians, Office of the Special         25, VII
       Trustee
  Endangered Species Committee                    50, IV
  Federal Acquisition Regulation                  48, 14
  Federal Property Management Regulations System  41, 114
  Fish and Wildlife Service, United States        50, I, IV
  Geological Survey                               30, IV
  Indian Affairs, Bureau of                       25, I, V
  Indian Affairs, Office of the Assistant         25, VI
       Secretary
  Indian Arts and Crafts Board                    25, II
  Land Management, Bureau of                      43, II
  National Indian Gaming Commission               25, III
  National Park Service                           36, I
  Natural Resource Revenue, Office of             30, XII
  Ocean Energy Management, Bureau of              30, V
  Reclamation, Bureau of                          43, I
  Safety and Environmental Enforcement, Bureau    30, II
       of
  Secretary of the Interior, Office of            2, XIV; 43, Subtitle A
  Surface Mining Reclamation and Enforcement,     30, VII
       Office of
Internal Revenue Service                          26, I
International Boundary and Water Commission,      22, XI
     United States and Mexico, United States 
     Section
International Development, United States Agency   22, II
     for
  Federal Acquisition Regulation                  48, 7
International Development Cooperation Agency,     22, XII
     United States
International Development Finance Corporation,    5, XXXIII; 22, VII
     U.S.
International Joint Commission, United States     22, IV
     and Canada
International Organizations Employees Loyalty     5, V
     Board
International Trade Administration                15, III; 19, III
International Trade Commission, United States     19, II
Interstate Commerce Commission                    5, XL
Investment Security, Office of                    31, VIII
James Madison Memorial Fellowship Foundation      45, XXIV
Japan-United States Friendship Commission         22, XVI
Joint Board for the Enrollment of Actuaries       20, VIII
Justice, Department of                            2, XXVIII; 5, XXVIII; 28, 
                                                  I, XI; 40, IV
  Alcohol, Tobacco, Firearms, and Explosives,     27, II
       Bureau of
  Drug Enforcement Administration                 21, II
  Federal Acquisition Regulation                  48, 28
  Federal Claims Collection Standards             31, IX
  Federal Prison Industries, Inc.                 28, III
  Foreign Claims Settlement Commission of the     45, V
       United States
  Immigration Review, Executive Office for        8, V
  Independent Counsel, Offices of                 28, VI
  Prisons, Bureau of                              28, V
  Property Management Regulations                 41, 128
Labor, Department of                              2, XXIX; 5, XLII
  Benefits Review Board                           20, VII
  Employee Benefits Security Administration       29, XXV
  Employees' Compensation Appeals Board           20, IV
  Employment and Training Administration          20, V
  Federal Acquisition Regulation                  48, 29

[[Page 773]]

  Federal Contract Compliance Programs, Office    41, 60
       of
  Federal Procurement Regulations System          41, 50
  Labor-Management Standards, Office of           29, II, IV
  Mine Safety and Health Administration           30, I
  Occupational Safety and Health Administration   29, XVII
  Public Contracts                                41, 50
  Secretary of Labor, Office of                   29, Subtitle A
  Veterans' Employment and Training Service,      41, 61; 20, IX
       Office of the Assistant Secretary for
  Wage and Hour Division                          29, V
  Workers' Compensation Programs, Office of       20, I, VI
Labor-Management Standards, Office of             29, II, IV
Land Management, Bureau of                        43, II
Legal Services Corporation                        45, XVI
Libraries and Information Science, National       45, XVII
     Commission on
Library of Congress                               36, VII
  Copyright Royalty Board                         37, III
  U.S. Copyright Office                           37, II
Management and Budget, Office of                  5, III, LXXVII; 14, VI; 
                                                  48, 99
Marine Mammal Commission                          50, V
Maritime Administration                           46, II
Merit Systems Protection Board                    5, II, LXIV
Micronesian Status Negotiations, Office for       32, XXVII
Military Compensation and Retirement              5, XCIX
     Modernization Commission
Millennium Challenge Corporation                  22, XIII
Mine Safety and Health Administration             30, I
Minority Business Development Agency              15, XIV
Miscellaneous Agencies                            1, IV
Monetary Offices                                  31, I
Morris K. Udall Scholarship and Excellence in     36, XVI
     National Environmental Policy Foundation
Museum and Library Services, Institute of         2, XXXI
National Aeronautics and Space Administration     2, XVIII; 5, LIX; 14, V
  Federal Acquisition Regulation                  48, 18
National Agricultural Library                     7, XLI
National Agricultural Statistics Service          7, XXXVI
National and Community Service, Corporation for   2, XXII; 45, XII, XXV
National Archives and Records Administration      2, XXVI; 5, LXVI; 36, XII
  Information Security Oversight Office           32, XX
National Capital Planning Commission              1, IV, VI
National Counterintelligence Center               32, XVIII
National Credit Union Administration              5, LXXXVI; 12, VII
National Crime Prevention and Privacy Compact     28, IX
     Council
National Drug Control Policy, Office of           2, XXXVI; 21, III
National Endowment for the Arts                   2, XXXII
National Endowment for the Humanities             2, XXXIII
National Foundation on the Arts and the           45, XI
     Humanities
National Geospatial-Intelligence Agency           32, I
National Highway Traffic Safety Administration    23, II, III; 47, VI; 49, V
National Imagery and Mapping Agency               32, I
National Indian Gaming Commission                 25, III
National Institute of Food and Agriculture        7, XXXIV
National Institute of Standards and Technology    15, II; 37, IV
National Intelligence, Office of Director of      5, IV; 32, XVII
National Labor Relations Board                    5, LXI; 29, I
National Marine Fisheries Service                 50, II, IV
National Mediation Board                          5, CI; 29, X
National Oceanic and Atmospheric Administration   15, IX; 50, II, III, IV, 
                                                  VI
National Park Service                             36, I
National Railroad Adjustment Board                29, III
National Railroad Passenger Corporation (AMTRAK)  49, VII
National Science Foundation                       2, XXV; 5, XLIII; 45, VI
  Federal Acquisition Regulation                  48, 25
National Security Council                         32, XXI; 47, II

[[Page 774]]

National Technical Information Service            15, XI
National Telecommunications and Information       15, XXIII; 47, III, IV, V
     Administration
National Transportation Safety Board              49, VIII
Natural Resource Revenue, Office of               30, XII
Natural Resources Conservation Service            7, VI
Navajo and Hopi Indian Relocation, Office of      25, IV
Navy, Department of                               32, VI
  Federal Acquisition Regulation                  48, 52
Neighborhood Reinvestment Corporation             24, XXV
Northeast Interstate Low-Level Radioactive Waste  10, XVIII
     Commission
Nuclear Regulatory Commission                     2, XX; 5, XLVIII; 10, I
  Federal Acquisition Regulation                  48, 20
Occupational Safety and Health Administration     29, XVII
Occupational Safety and Health Review Commission  29, XX
Ocean Energy Management, Bureau of                30, V
Oklahoma City National Memorial Trust             36, XV
Operations Office                                 7, XXVIII
Patent and Trademark Office, United States        37, I
Payment From a Non-Federal Source for Travel      41, 304
     Expenses
Payment of Expenses Connected With the Death of   41, 303
     Certain Employees
Peace Corps                                       2, XXXVII; 22, III
Pennsylvania Avenue Development Corporation       36, IX
Pension Benefit Guaranty Corporation              29, XL
Personnel Management, Office of                   5, I, IV, XXXV; 45, VIII
  Federal Acquisition Regulation                  48, 17
  Federal Employees Group Life Insurance Federal  48, 21
       Acquisition Regulation
  Federal Employees Health Benefits Acquisition   48, 16
       Regulation
  Human Resources Management and Labor Relations  5, XCVII
       Systems, Department of Homeland Security
Pipeline and Hazardous Materials Safety           49, I
     Administration
Postal Regulatory Commission                      5, XLVI; 39, III
Postal Service, United States                     5, LX; 39, I
Postsecondary Education, Office of                34, VI
President's Commission on White House             1, IV
     Fellowships
Presidential Documents                            3
Presidio Trust                                    36, X
Prisons, Bureau of                                28, V
Privacy and Civil Liberties Oversight Board       6, X
Procurement and Property Management, Office of    7, XXXII
Public and Indian Housing, Office of Assistant    24, IX
     Secretary for
Public Contracts, Department of Labor             41, 50
Public Health Service                             42, I
Railroad Retirement Board                         20, II
Reclamation, Bureau of                            43, I
Refugee Resettlement, Office of                   45, IV
Relocation Allowances                             41, 302
Research and Innovative Technology                49, XI
     Administration
Rural Business-Cooperative Service                7, XVIII, XLII, L
Rural Development Administration                  7, XLII
Rural Housing Service                             7, XVIII, XXXV, L
Rural Utilities Service                           7, XVII, XVIII, XLII, L
Safety and Environmental Enforcement, Bureau of   30, II
Science and Technology Policy, Office of          32, XXIV; 47, II
Secret Service                                    31, IV
Securities and Exchange Commission                5, XXXIV; 17, II
Selective Service System                          32, XVI
Small Business Administration                     2, XXVII; 13, I
Smithsonian Institution                           36, V
Social Security Administration                    2, XXIII; 20, III; 48, 23
Soldiers' and Airmen's Home, United States        5, XI
Special Counsel, Office of                        5, VIII
Special Education and Rehabilitative Services,    34, III
     Office of
State, Department of                              2, VI; 22, I; 28, XI

[[Page 775]]

  Federal Acquisition Regulation                  48, 6
Surface Mining Reclamation and Enforcement,       30, VII
     Office of
Surface Transportation Board                      49, X
Susquehanna River Basin Commission                18, VIII
Tennessee Valley Authority                        5, LXIX; 18, XIII
Trade Representative, United States, Office of    15, XX
Transportation, Department of                     2, XII; 5, L
  Commercial Space Transportation                 14, III
  Emergency Management and Assistance             44, IV
  Federal Acquisition Regulation                  48, 12
  Federal Aviation Administration                 14, I
  Federal Highway Administration                  23, I, II
  Federal Motor Carrier Safety Administration     49, III
  Federal Railroad Administration                 49, II
  Federal Transit Administration                  49, VI
  Great Lakes St. Lawrence Seaway Development     33, IV
       Corporation
  Maritime Administration                         46, II
  National Highway Traffic Safety Administration  23, II, III; 47, IV; 49, V
  Pipeline and Hazardous Materials Safety         49, I
       Administration
  Secretary of Transportation, Office of          14, II; 49, Subtitle A
  Transportation Statistics Bureau                49, XI
Transportation, Office of                         7, XXXIII
Transportation Security Administration            49, XII
Transportation Statistics Bureau                  49, XI
Travel Allowances, Temporary Duty (TDY)           41, 301
Treasury, Department of the                       2, X; 5, XXI; 12, XV; 17, 
                                                  IV; 31, IX
  Alcohol and Tobacco Tax and Trade Bureau        27, I
  Community Development Financial Institutions    12, XVIII
       Fund
  Comptroller of the Currency                     12, I
  Customs and Border Protection                   19, I
  Engraving and Printing, Bureau of               31, VI
  Federal Acquisition Regulation                  48, 10
  Federal Claims Collection Standards             31, IX
  Federal Law Enforcement Training Center         31, VII
  Financial Crimes Enforcement Network            31, X
  Fiscal Service                                  31, II
  Foreign Assets Control, Office of               31, V
  Internal Revenue Service                        26, I
  Investment Security, Office of                  31, VIII
  Monetary Offices                                31, I
  Secret Service                                  31, IV
  Secretary of the Treasury, Office of            31, Subtitle A
Truman, Harry S. Scholarship Foundation           45, XVIII
United States Agency for Global Media             22, V
United States and Canada, International Joint     22, IV
     Commission
United States and Mexico, International Boundary  22, XI
     and Water Commission, United States Section
U.S. Copyright Office                             37, II
U.S. Office of Special Counsel                    5, CII
Utah Reclamation Mitigation and Conservation      43, III
     Commission
Veterans Affairs, Department of                   2, VIII; 38, I
  Federal Acquisition Regulation                  48, 8
Veterans' Employment and Training Service,        41, 61; 20, IX
     Office of the Assistant Secretary for
Vice President of the United States, Office of    32, XXVIII
Wage and Hour Division                            29, V
Water Resources Council                           18, VI
Workers' Compensation Programs, Office of         20, I, VII
World Agricultural Outlook Board                  7, XXXVIII

[[Page 777]]



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

49 CFR
                                                                   83 FR
                                                                    Page
Subtitle A
11 Regulation at 82 FR 7274 eff. date delayed to 7-19-18............2885
11.101 (l)(3) and (4) revised; interim..............................2894
11.101 (l)(1) heading and (5) added; (l)(2), (3), and (4) revised 
                                                                   28519

                                  2019

49 CFR
                                                                   84 FR
                                                                    Page
Subtitle A
1.27 (e) revised...................................................71717
5 Revised..........................................................71717
7.12 (a)(2) revised................................................71733
10 Appendix designated as Appendix A; Appendix A amended...........23729
10 Appendix A amended..............................................67673
40.26 Revised......................................................16773
40 Appendix H revised..............................................16773

                                  2020

49 CFR
                                                                   85 FR
                                                                    Page
Subtitle A
5 Correction: amended...............................................1747
5 Correction: amended...............................................3254
26 Authority citation revised......................................80647
26.65 (b) revised..................................................80647
29 Added...........................................................33504
93 Removed.........................................................10620

                                  2021

49 CFR
                                                                   86 FR
                                                                    Page
Subtitle A
1.27 (e) revised...................................................17294
5 Revised..........................................................17294
7.12 (a)(2) revised................................................17295

                                  2022

                       (No regulations published)

                                  2023

  (Regulations published from January 1, 2023, through October 1, 2023)

49 CFR
                                                                   88 FR
                                                                    Page
Subtitle A
40.3 Amended.......................................................27636
40.13 (b) through (d) revised; (e) and (f) redesignated as (f) and 
        (g); new (e) and (h) added.................................27637
40.14 (b) revised; (k) added.......................................27637
40.21 (c)(2)(vii)(B) amended; (c)(2)(vii)(C) redesignated as 
        (c)(2)(vii)(D); new (c)(2)(vii)(C) added...................27637

[[Page 778]]

40.23 (f) introductory text, (1), and (5) revised..................27637
40.25 (a) revised..................................................27637
40.26 Amended......................................................27638
40.29 Removed......................................................27638
40.31 (c) and (d) redesignated as (d) and (e); Heading, (b), and 
        new (d) revised; new (c) and (f) added.....................27638
40.33 Heading, introductory text, and (f) introductory text 
        revised....................................................27638
40.35 Redesignated as 40.36; new section added.....................27638
40.36 Redesignated from 40.35......................................27638
40.37 Removed......................................................27639
40.40 Heading, (a), (b), (c) introductory text, and (1) through 
        (4) revised; (d) amended...................................27639
40.40 Redesignated from 40.45......................................27639
40.41 Redesignated as 40.42; new section redesignated from 40.47; 
        new (a) amended............................................27639
40.42 Redesignated from 40.41......................................27639
40.43 Heading revised..............................................27639
40.44 Redesignated from 40.49......................................27639
40.45 Redesignated as 40.40; new section redesignated from 40.51 
                                                                   27639
40.47 Redesignated as 40.41........................................27639
40.47 Added........................................................27640
40.48 Added........................................................27640
40.49 Added........................................................27640
40.49 Redesignated as 40.44........................................27639
40.51 Redesignated as 40.45........................................27639
40.51 Added........................................................27640
40.41--40.51 (Subpart D) Heading revised...........................27639
40.61 Heading, (a), (b)(1) introductory text, (3), (4), (e), and 
        (f)(5)(i) revised..........................................27640
40.63 (a) revised..................................................27641
40.65 Heading, (b)(5), (6), and (c)(1) revised.....................27641
40.67 Heading, (a) introductory text, (c)(3), (4), (d)(2), and (g) 
        revised; (a)(4) and (c)(5) added; (c)(1) and (e)(2) 
        amended....................................................27641
40.69 (a) through (g) redesignated as (b) through (h); Heading and 
        new (e) revised; new (a) added.............................27641
40.71 Heading and (b)(1) revised...................................27641
40.72 Added........................................................27642
40.73 Redesignated as 40.79........................................27641
40.73 Added........................................................27642
40.61--40.73 (Subpart E) Heading revised...........................27640
40.74 Added........................................................27642
40.79 Redesignated from 40.73......................................27641
40.79 (a)(1) revised...............................................27643
40.81 (a) amended..................................................27643
40.82 Redesignated from 40.85......................................27643
40.83 (b), (c)(7), (f) introductory text, (g) introductory text, 
        (h)(1)(i), (iii), (iv), and (h)(2) amended; (c)(8) and (9) 
        added......................................................27643
40.84 Redesignated from 40.99......................................27643
40.85 Redesignated as 40.82........................................27643
40.85 Redesignated from 40.87; new heading and Footnote 2 revised 
                                                                   27643
40.86 Redesignated from 40.89; new heading revised.................27643
40.87 Redesignated as 40.85; new section redesignated from 40.91; 
        new heading revised; introductory text amended.............27643
40.88 Redesignated from 40.93; new heading revised.................27643
40.89 Redesignated as 40.86; new section redesignated from 40.95; 
        new heading revised........................................27643
40.90 Redesignated from 40.96; new heading revised.................27643
40.91 Redesignated as 40.87........................................27643
40.91 Added........................................................27643
40.92 Added........................................................27643
40.93 Added........................................................27643
40.93 Redesignated as 40.88........................................27643
40.95 Redesignated as 40.89........................................27643
40.96 Redesignated as 40.90........................................27643
40.97 Revised......................................................27644
40.99 Redesignated as 40.84........................................27643
40.111 (a) introductory text and (d) revised.......................27645
40.121 (c)(1)(i) amended...........................................27645
40.123 (c) amended.................................................27645
40.127 (g)(2) amended..............................................27645
40.129 (a) introductory text, (b), and (d) amended.................27645
40.135 (d) introductory text amended...............................27645
40.139 (b) revised; (c) introductory text amended..................27645
40.141 (b) revised.................................................27645
40.145 (g)(3) and (h) introductory text amended....................27646
40.151 (a), (b), (g), and (i) revised..............................27646

[[Page 779]]

40.159 (a)(1) and (a)(5)(ii) revised...............................27646
40.161 (a) and (c) revised.........................................27646
40.163 (c)(2) amended; (e) revised.................................27646
40.177 (a) through (c) revised.....................................27646
40.179 (a) amended.................................................27646
40.181 Revised.....................................................27646
40.187 (b)(1), (c)(1)(iii), (2)(iii), and (e)(3) amended...........27646
40.191 (a)(2) through (11), (c), and (d)(1) revised................27647
40.193 Revised.....................................................27647
40.195 Heading revised.............................................27648
40.197 Heading revised.............................................27648
40.199 (b)(7) revised; (b)(8) and (9) added........................27648
40.201 (f) amended.................................................27648
40.207 (d) added...................................................27648
40.208 Revised.....................................................27649
40.209 (b)(1), (3), and (7) amended; (b)(11) added.................27649
40.210 Revised.....................................................27649
40.225 (a) amended.................................................27649
40.261 (a)(2), (3), and (b) revised; (c) redesignated as (c)(1); 
        (c)(2) added...............................................27649
40.281 (f) added...................................................27649
40.283 (c) amended.................................................27650
40.285 (b) amended.................................................27650
40.291 (a)(1) and (3) revised......................................27650
40.293 (a) amended; (e) through (g) redesignated as (f) through 
        (h); new (e) added.........................................27650
40.297 (c) added...................................................27650
40.301 (b)(2) amended..............................................27650
40.305 (d) added...................................................27650
40.307 (g) added...................................................27650
40.311 (c)(1), (4), (d)(1), (4), (e)(1), and (4) amended...........27650
40.327 (a) introductory text amended; (c) redesignated as (d); new 
        (c) added..................................................27650
40.345 (b) amended.................................................27650
40.355 (n)  Example 3 amended......................................27650
40.365 (b)(8) amended..............................................27650
40 Appendix B redesignated as Appendix D and revised...............27651
40 Appendix C redesignated as Appendix E...........................27651
40 Appendix D redesignated as Appendix F...........................27651
40 Appendices E through H redesignated as Appendices G through J 
                                                                   27651
40 New Appendix B added............................................27651
40 Appendix E and Appendix F revised; Appendix H amended...........27652


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