[Title 15 CFR ]
[Code of Federal Regulations (annual edition) - January 1, 2024 Edition]
[From the U.S. Government Publishing Office]
[[Page 1]]
Title 15
Commerce and Foreign Trade
________________________
Parts 0 to 299
Revised as of January 1, 2024
Containing a codification of documents of general
applicability and future effect
As of January 1, 2024
Published by the Office of the Federal Register
National Archives and Records Administration as a
Special Edition of the Federal Register
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[[Page iii]]
Table of Contents
Page
Explanation................................................. v
Title 15:
SUBTITLE A--Office of the Secretary of Commerce 3
SUBTITLE B--Regulations Relating to Commerce and Foreign
Trade
Chapter I--Bureau of the Census, Department of
Commerce 255
Chapter II--National Institute of Standards and
Technology, Department of Commerce 317
Finding Aids:
Table of CFR Titles and Chapters........................ 437
Alphabetical List of Agencies Appearing in the CFR...... 457
List of CFR Sections Affected........................... 467
[[Page iv]]
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Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 15 CFR 0.735-1
refers to title 15, part
0, section 735-1.
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[[Page v]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
regulation. Each title is divided into chapters which usually bear the
name of the issuing agency. Each chapter is further subdivided into
parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
volume.
LEGAL STATUS
The contents of the Federal Register are required to be judicially
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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
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To determine whether a Code volume has been amended since its
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EFFECTIVE AND EXPIRATION DATES
Each volume of the Code contains amendments published in the Federal
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The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires
Federal agencies to display an OMB control number with their information
collection request.
[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
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PAST PROVISIONS OF THE CODE
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(b) The matter incorporated is in fact available to the extent
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that volume.
[[Page vii]]
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Oliver A. Potts,
Director,
Office of the Federal Register
January 1, 2024
[[Page ix]]
THIS TITLE
Title 15--Commerce and Foreign Trade is composed of three volumes.
The parts in these volumes are arranged in the following order: Parts 0-
299, 300-799, and part 800-End. The first volume containing parts 0-299
is comprised of Subtitle A--Office of the Secretary of Commerce,
Subtitle B, chapter I--Bureau of the Census, Department of Commerce, and
chapter II--National Institute of Standards and Technology, Department
of Commerce. The second volume containing parts 300-799 is comprised of
chapter III--International Trade Administration, Department of Commerce,
chapter IV--Foreign-Trade Zones Board, and chapter VII--Bureau of
Industry and Security, Department of Commerce. The third volume
containing part 800-End is comprised of chapter VIII--Bureau of Economic
Analysis, Department of Commerce, chapter IX--National Oceanic and
Atmospheric Administration, Department of Commerce, chapter XI--
Technology Administration, Department of Commerce, chapter XIII--East-
West Foreign Trade Board, chapter XIV--Minority Business Development
Agency, chapter XV--Office of the Under-Secretary for Economic Affairs,
Department of Commerce, Subtitle C, chapter XX--Office of the United
States Trade Representative, and Subtitle D, chapter XXIII--National
Telecommunications and Information Administration, Department of
Commerce. The contents of these volumes represent all current
regulations codified under this title of the CFR as of January 1, 2024.
For this volume, Cheryl E. Sirofchuck was Chief Editor. The Code of
Federal Regulations publication program is under the direction of John
Hyrum Martinez, assisted by Stephen J. Frattini.
[[Page 1]]
TITLE 15--COMMERCE AND FOREIGN TRADE
(This book contains parts 0 to 299)
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Part
SUBTITLE A--Office of the Secretary of Commerce............. 0
SUBTITLE B--Regulations Relating to Commerce and Foreign Trade
chapter i--Bureau of the Census, Department of Commerce..... 30
chapter ii--National Institute of Standards and Technology,
Department of Commerce.................................... 200
[[Page 3]]
Subtitle A--Office of the Secretary of Commerce
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Part Page
0 Employee responsibilities and conduct....... 5
1 The Seal of the Department of Commerce...... 17
2 Procedures for handling and settlement of
claims under the Federal Tort Claims Act 18
3 Implementation of the Havana Act of 2021.... 20
4 Disclosure of government information........ 22
4a Classification, declassification, and public
availability of national security
information............................. 61
5 Operation of vending stands................. 64
6 Civil monetary penalty adjustments for
inflation (EFF. until 01-15-24)......... 66
6 Civil monetary penalty adjustments for
inflation (EFF. 01-15-24)............... 69
7 Securing the information and communications
technology and services supply chain.... 72
8 Nondiscrimination in federally assisted
programs of the Department of Commerce--
effectuation of Title VI of the Civil
Rights Act of 1964...................... 83
8a Nondiscrimination on the basis of sex in
education programs or activities
receiving Federal financial assistance.. 97
8b Prohibition of discrimination against the
handicapped in federally assisted
programs operated by the Department of
Commerce................................ 114
8c Enforcement of nondiscrimination on the
basis of handicap in programs or
activities conducted by the Department
of Commerce............................. 127
9 Procedures for a voluntary labeling program
for household appliances and equipment
to effect energy conservation........... 133
10 Procedures for the development of voluntary
product standards....................... 136
[[Page 4]]
11 Uniform relocation assistance and real
property acquisition for Federal and
federally assisted programs............. 146
12 Fair packaging and labeling................. 146
13 Intergovernmental review of Department of
Commerce programs and activities........ 149
14
[Reserved]
15 Legal proceedings........................... 152
16 Procedures for a voluntary consumer product
information labeling program............ 165
17 Personnel exchanges between Federal
laboratories and non-Federal entities... 171
18 Attorney's fees and other expenses.......... 173
19 Commerce debt collection.................... 181
20 Nondiscrimination on the basis of age in
programs or activities receiving Federal
financial assistance.................... 197
21-22
[Reserved]
23 Use of penalty mail in the location and
recovery of missing children............ 203
24
[Reserved]
25 Program..................................... 206
26
[Reserved]
27 Protection of human subjects................ 221
28 New restrictions on lobbying................ 239
29 Procedures for guidance documents........... 250
[[Page 5]]
PART 0_EMPLOYEE RESPONSIBILITIES AND CONDUCT--Table of Contents
Subpart A_General Provisions
Sec.
0.735-1 Purpose.
0.735-2 Cross-references to ethical conduct, financial disclosure, and
other applicable regulations.
0.735-3 Applicability.
0.735-4 Definitions.
Subparts B-C [Reserved]
Subpart D_Regulatory Limitations Upon Employee Conduct
0.735-10 Administrative extension of statutory limitations.
0.735-10a--0.735-15 [Reserved]
0.735-16 Indebtedness.
0.735-17 Gambling, betting, and lotteries.
0.735-18 General conduct prejudicial to the Government.
0.735-19 Reporting undue influence to superiors.
Subpart E [Reserved]
Subpart F_Supplementary Regulations
0.735-32 Departmental.
0.735-33 Operating units.
0.735-34 Effective date of supplementary regulations.
Subpart G_Administration
0.735-35 Responsibilities of employees.
0.735-36 Responsibilities of operating units.
0.735-37 Procedure.
0.735-38 Availability for counseling.
0.735-39 Authorizations.
0.735-40 Disciplinary and other remedial action.
0.735-41 Inquiries and exceptions.
Subpart H_Disciplinary Actions Concerning Post-Employment Conflict of
Interest Violations
0.735-42 Scope.
0.735-43 Report of violations and investigation.
0.735-44 Initiation of proceedings.
0.735-45 Notice.
0.735-46 Hearing.
0.735-47 Decision absent a hearing.
0.735-48 Administrative appeal.
0.735-49 Sanctions.
0.735-50 Judicial review.
Appendix A to Part 0--Statutes Governing Conduct of Federal Employees
Authority: 5 U.S.C. 301, 7301, 7353; 5 U.S.C. App. (Ethics in
Government Act of 1978); 26 U.S.C. 7214(b); E.O. 12674, 54 FR 15159, 3
CFR 1989 Comp., p. 215, as modified by E.O. 12731, 55 FR 42547, 3 CFR
1990 Comp., p. 306; 5 CFR part 2635.
Source: 32 FR 15222, Nov. 2, 1967, unless otherwise noted.
Subpart A_General Provisions
Sec. 0.735-1 Purpose.
The purpose of this part is to set forth Department of Commerce
policy and procedure relating to employee responsibilities and conduct.
Sec. 0.735-2 Cross-references to ethical conduct, financial disclosure,
and other applicable regulations.
Employees of the Department of Commerce should refer to the
executive branch-wide Standards of Ethical Conduct at 5 CFR part 2635
and the executive branch-wide financial disclosure regulations at 5 CFR
part 2634.
[68 FR 24879, May 9, 2003]
Sec. 0.735-3 Applicability.
This part applies to all persons included within the term
``employee'' as defined in Sec. 0.735-4, except as otherwise provided
in this part.
Sec. 0.735-4 Definitions.
For purposes of this part, except as otherwise indicated in this
part:
(a) Employee. (1) Shall include: (i) Every officer and employee of
the Department of Commerce (regardless of location), including
commissioned officers of the Environmental Science Services
Administration; and
(ii) Every other person who is retained, designated, appointed, or
employed by a Federal officer or employee, who is engaged in the
performance of a function of the Department under authority of law or an
Executive act, and who is subject to the supervision of a Federal
officer or employee while engaged in the performance of the duties of
his position not only as to what he does but also as to how he performs
his duties, regardless of whether the relationship to the Department is
created by assignment, detail, contract, agreement or otherwise.
(2) Shall not include: (i) Members of the Executive Reserve except
when they are serving as employees of the
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Department under the circumstances described in paragraph (a)(1) of this
section;
(ii) Members of crews of vessels owned or chartered to the
Government and operated by or for the Maritime Administration under a
General Agency Agreement; or
(iii) Any other person who is determined legally not to be an
officer or employee of the United States.
(b) Special Government employee shall mean an employee as defined in
paragraph (a) of this section who is retained, designated, appointed, or
employed to perform with or without compensation, for not to exceed 130
days during any period of 365 consecutive days, temporary duties on
either a full-time or intermittent basis.
(c) Personnel officer means a personnel official to whom the power
of appointment is redelegated under Administrative Order 202-250.
(d) Operating unit means, for purposes of this part, primary and
constituent operating units designated as such in the Department Order
Series of the Department of Commerce and, in addition, the Office of the
Secretary.
(e) Head of an operating unit, for the purposes of this part,
includes the Assistant Secretary for Administration with respect to the
performance of functions under this part for the Office of the
Secretary.
Subparts B-C [Reserved]
Subpart D_Regulatory Limitations Upon Employee Conduct
Sec. 0.735-10 Administrative extension of statutory limitations.
The provisions of the statutes identified in this part which relate
to the ethical and other conduct of Federal employees are adopted and
will be enforced as administrative regulations, violations of which may
in appropriate cases be the basis for disciplinary action, including
removal. The fact that a statute which may relate to employee conduct is
not identified in this part does not mean that it may not be the basis
for disciplinary action against an employee.
Sec. Sec. 0.735-10a--0.735-15 [Reserved]
Sec. 0.735-16 Indebtedness.
(a) An employee shall pay each just financial obligation in a proper
and timely manner, especially one imposed by law such as Federal, State,
or local taxes. For purposes of this section, ``a just financial
obligation'' means one acknowledged by the employee or reduced to
judgment by a court, and ``in a proper and timely manner'' means in a
manner which, in the view of the Department, does not, under the
circumstances, reflect adversely on the Government as his employer.
(b) In the event of dispute between an employee and an alleged
creditor, this section does not require the Department to determine the
validity or amount of the disputed debt.
Sec. 0.735-17 Gambling, betting, and lotteries.
An employee shall not participate while on Government-owned or
leased property or while on duty for the Government, in any gambling
activity including the operation of a gambling device, in conducting a
lottery or pool, in a game for money or property or in selling or
purchasing a numbers slip or ticket. However, this section does not
preclude activities
(a) Necessitated by an employee's law enforcement duties, or
(b) Under section 3 of Executive Order 10927 (relating to
solicitations conducted by organizations composed of civilian employees
or members of the armed forces among their own members for
organizational support or for benefit or welfare funds for their own
members) and similar agency-approved activities.
Sec. 0.735-18 General conduct prejudicial to the Government.
(a) General policy. Officers and employees of the Federal Government
are servants of the people. Because of this, their conduct must, in many
instances, be subject to more restrictions and to higher standards than
may be the case in certain private employments. They are expected to
conduct themselves in a manner which will reflect favorably upon their
employer. Although the
[[Page 7]]
Government is not particularly interested in the private lives of its
employees, it does expect them to be honest, reliable, trustworthy, and
of good character and reputation. They are expected to be loyal to the
Government, and to the department or agency in which they are employed.
(b) Specific policy. An employee shall not engage in criminal,
infamous, dishonest, immoral, or notoriously disgraceful conduct, or
other conduct prejudicial to the Government.
(c) Regulations applicable to public buildings and grounds. Each
employee is responsible for knowing and complying with regulations of
the General Services Administration and of the Department of Commerce
applicable to public buildings and grounds.
Sec. 0.735-19 Reporting undue influence to superiors.
Each employee shall report to his superior any instance in which
another person inside or outside the Federal Government uses or attempts
to use undue influence to induce, by reason of his official Government
position, former Government employment, family relationship, political
position, or otherwise, the employee to do or omit to do any official
act in derogation of his official duty.
Subpart E [Reserved]
Subpart F_Supplementary Regulations
Sec. 0.735-32 Departmental.
The Assistant Secretary for Administration may prescribe
supplementary instructions consistent with this part.
Sec. 0.735-33 Operating units.
Each operating unit is hereby authorized and directed to prescribe,
after approval by the Assistant Secretary for Administration, such
additional regulations not inconsistent with this part as may be
necessary to effectuate the general purpose of this part in the light of
its individual operating requirements, including but not limited to
pertinent statutory provisions, such as:
(a) 35 U.S.C. 4, 122 (Patent Office);
(b) 46 U.S.C. 1111(b) (Maritime Administration);
(c) Certain provisions of the Defense Production Act of 1950, e.g.,
50 U.S.C. App. 2160(b)(2) (avoidance of conflicts of interest), 50
U.S.C. App. 2160(b)(6) (financial statements), and 50 U.S.C. App.
2160(f) (prohibition of use of confidential information for purposes of
speculation) (Business and Defense Services Administration and any other
primary operating unit affected); and
(d) Certain provisions of Pub. L. 89-136, the Public Works and
Economic Development Act of 1965, e.g., section 711 (restriction on
employing certain EDA employees by applicants for financial assistance),
and section 710(b) (embezzlement), false book entries, sharing in loans,
etc., and giving out unauthorized information for speculation).
Sec. 0.735-34 Effective date of supplementary regulations.
Supplementary regulations prescribed pursuant to Sec. 0.735-33,
shall become effective upon approval by the issuing officer unless a
different date is required by law or a later date is specified therein.
Subpart G_Administration
Sec. 0.735-35 Responsibilities of employees.
It is the responsibility of each employee:
(a) To assure, at the outset of his employment, that each of his
interests and activities is consistent with the requirements established
by or pursuant to this part;
(b) To submit a statement of employment and financial interests at
such times and in such form as may be specified in or pursuant to this
part;
(c) To certify, upon entering on duty in the Department, that he has
read this part and applicable regulations supplementary thereto;
(d) To obtain prior written authorization of any interest or
activity about the propriety of which any doubt exists in the employee's
mind, as provided in Sec. 0.735-39;
(e) To confine each of his interests and activities at all times
within the
[[Page 8]]
requirements established by or pursuant to this part, including any
authorizations granted pursuant to this part; and
(f) To obtain a further written authorization whenever circumstances
change, or the nature or extent of the interest or activity changes, in
such a manner as to involve the possibility of a violation or appearance
of a violation of a limitation or requirement prescribed in or pursuant
to this part.
Sec. 0.735-36 Responsibilities of operating units.
The head of each operating unit, or his designee, shall:
(a) Furnish or make available to each employee a copy of this part
(or a comprehensive summary thereof) within 90 days after approval of
this part by the Office of Personnel Management, and, upon their
issuance, a copy of any regulations supplementary thereto (or a
comprehensive summary thereof);
(b) Furnish or make available to each new employee at the time of
his entrance on duty a copy of this part as it may be amended and any
supplementary regulations (or a comprehensive summary thereof);
(c) Bring this part (or as it may be amended and any supplementary
regulations thereto) to the attention of each employee annually, and at
such other times as circumstances may warrant as may be determined by
the Assistant Secretary for Administration;
(d) Have available for review by employees, as appropriate, copies
of laws, Executive orders, this part, supplementary regulations, and
pertinent Office of Personnel Management regulations and instructions
relating to ethical and other conduct of Government employees;
(e) Advise each employee who is a special Government employee of his
status for purposes of 18 U.S.C. 203 and 205;
(f) Require each employee specified in Sec. 0.735-22 to submit a
statement of employment and financial interests, as provided by or
pursuant to this part;
(g) Develop an appropriate form, with the approval of the counselor
of the Department, on which the employee may certify that he has read
this part and applicable regulations supplementary thereto, in
accordance with Sec. 0.735-35(c), and on which he may, if he so
desires, indicate that he has a private activity or interest about which
he requests advice and guidance as provided by Sec. 0.735-38.
(h) Require each employee upon entering on duty and at such other
times as may be specified, to execute the certification required by
Sec. 0.735-35(c);
(i) Report to the program Secretarial Officer concerned and to the
Assistant Secretary for Administration promptly any instance in which an
employee, after notice, fails to submit the certification required under
Sec. 0.735-35(c) or a statement of employment or financial interests
required under this part within 14 calendar days following the
prescribed time limit for doing so; and
(j) Take action to impress upon each employee required to submit a
statement of employment and financial interests, upon his supervisor,
and upon employees with whom the employee works, their responsibility as
follows:
(1) The employee's supervisor is responsible (i) for excluding from
the range of duties of the employee any contracts or other transactions
between the Government and his outside employer, clients, or entities in
which he has an interest within the purview of this part, and (ii) for
overseeing the employee's activities in order to insure that the public
interest is protected from improper conduct on his part and that he will
not, through ignorance or inadvertence, embarrass the Government or
himself.
(2) The employee's supervisor and employees with whom he works are
responsible for avoiding the use of the employee's services in any
situation in which a violation of law, regulation, or ethical standards
is likely to occur or to appear to occur.
(3) The supervisor of an employee is responsible for initiating
prompt and proper disciplinary or remedial action when a violation,
intentional or innocent, is detected.
(4) Employees shall avoid divulging to a special Government employee
privileged Government information which is not necessary to the
performance of his governmental responsibility or information which
directly involves
[[Page 9]]
the financial interests of his non-Government employer.
(5) An employee shall make every effort in his private work to avoid
any personal contact with respect to negotiations with the Department
for contracts, grants, or loans, if the subject matter is related to the
subject matter of his Government employment. When this is not possible,
he may participate if not otherwise prohibited by law (e.g., 18 U.S.C.
203 and 205) in the negotiations for his private employer only with the
prior approval of the head of the operating unit concerned.
[32 FR 15222, Nov. 2, 1967, as amended at 55 FR 53489, Dec. 31, 1990]
Sec. 0.735-37 Procedure.
The review of statements of employment and financial interests shall
include the following basic measures, among others:
(a) Statements shall be submitted to the designated officer, who
will review each employee's statement of employment and financial
interests to ascertain whether they are consistent with the requirements
established by or pursuant to this part. (See Sec. 0.735-24(b).)
(b) Where the statement raises any question of compliance with the
requirements of this part, it shall be submitted to a deputy counselor
for the organization unit concerned. The deputy counselor may, in his
discretion, utilize the advice and services of others (including
departmental facilities) to obtain further information needed to resolve
the questions.
(c) The designated officer shall maintain the statements of
employment and financial interests in a file apart from the official
personnel files and shall take every measure practicable to insure their
confidentiality. Statements of employment and financial interests shall
be preserved for 5 years following the separation of an employee from
the Department or following termination of any other relationship under
which the individual rendered service to the Department, except as may
be otherwise authorized by the Assistant Secretary for Administration or
as required by law.
Sec. 0.735-38 Availability for counseling.
(a) The General Counsel of the Department shall:
(1) Serve as the counselor for the Department of Commerce with
respect to matters covered by the basic provisions cited in Sec. 0.735-
2(a) and otherwise by or pursuant to this part;
(2) Serve as the Department of Commerce designee to the Office of
Personnel Management on matters covered by this part; and
(3) Coordinate the counseling services provided under this part and
assure that counseling and interpretations on questions of conflicts of
interest and other matters covered by this part are available to deputy
counselors designated under paragraph (b) of this section.
(b) The counselor shall designate employees who shall serve as
deputy counselors for employees of the Department of Commerce with
respect to matters covered by or pursuant to this part and shall give
authoritative advice and guidance to each employee who seeks advice and
guidance on questions of conflict of interests and other matters covered
by or pursuant to this part.
(c) Each operating unit shall notify its employees of the
availability of counseling services and of how and where these services
are available. This notification shall be given within 90 days after
approval of this part by the Office of Personnel Management and
periodically thereafter. In the case of a new employee appointed after
the foregoing notification, notification shall be made at the time of
his entrance on duty.
(d) In each operating unit a deputy counselor shall advise and
counsel each employee concerning any adjustments necessary in his
financial interests or activities, or in any contemplated interests or
activities, in order to meet the requirements established by or pursuant
to this part.
[32 FR 15222, Nov. 2, 1967, as amended at 55 FR 53489, Dec. 31, 1990]
Sec. 0.735-39 Authorizations.
All requests for authorizations required under this part shall be
addressed to the head of the operating unit concerned. In the Office of
the
[[Page 10]]
Secretary such requests shall be addressed to the Secretary or such
person as he may designate. When granted, authorizations will be in
writing, and a copy of each authorization will be filed in the
employees' official personnel file.
(a) In case of doubt, or upon the request of the employee concerned,
cases or questions will be forwarded to the counselor or a deputy
counselor. (See Sec. 0.735-38.)
(b) Where an activity requested to be authorized can be conducted as
official business, it shall not be authorized as a private activity, but
shall be conducted as official business.
(c) Where authorizations involve speaking, writing, or teaching, use
of the official title of the employee for identification purposes may be
authorized, provided the employee makes it clear that his statements and
actions are not of an official nature.
(d) If an authorization has been granted for a specific activity or
interest, and the activity or interest is subsequently deemed to
constitute a violation of the limitations or requirements prescribed in
or pursuant to this part, the employee concerned shall be notified in
writing of the cancellation of the authorization and shall modify or
stop the activity or interest involved, as requested.
Sec. 0.735-40 Disciplinary and other remedial action.
(a) Violation of a requirement established in or pursuant to this
part shall be cause for appropriate disciplinary action, which may be in
addition to any penalty prescribed by law.
(b) When, after consideration of the explanation of the employee
provided by Sec. 0.735-20(c), the reviewing officer, in cooperation
with the responsible supervisory official, decides that remedial action
is required, he will take or cause to be taken immediate action to end
the conflict or appearance of conflict of interest. Remedial action may
include, but is not limited to:
(1) Changes in assigned duties;
(2) Divestment by the employee of his conflicting interest;
(3) Disciplinary action (including removal from the service); or
(4) Disqualification for a particular assignment.
Remedial action, whether disciplinary or otherwise, shall be effected in
accordance with applicable laws, Executive orders, and regulations.
(c) No disciplinary or remedial action may be taken under this
section against an employee of another Federal department or agency on
detail to the Department of Commerce other than through and with the
concurrence of the detailed employee's employing agency.
Sec. 0.735-41 Inquiries and exceptions.
(a) Inquiries relating to legal aspects of the limitations set forth
in or cited in or pursuant to this part should be submitted to the
appropriate deputy counselor. Inquiries relating to other aspects of
this part or regulations supplementary thereto should be referred to the
appropriate personnel office.
(b) Within the limits of administrative discretion permitted to the
Department, exceptions to the requirements of this part may be granted
from time to time in unusual cases by the head of the operating unit,
whenever the facts indicate that such an exception would promote the
efficiency of the service. Each request for such an exception should be
submitted in writing to the head of the operating unit concerned, and
shall contain a full statement of the justification for the request.
Reports concerning such requests, if approved, shall be forwarded to the
program Secretarial Officer concerned and to the Assistant Secretary for
Administration by the head of the operating unit concerned.
Subpart H_Disciplinary Actions Concerning Post-Employment Conflict of
Interest Violations
Authority: 18 U.S.C. 207(j); 5 CFR 737.27.
Source: 49 FR 32057, Aug. 10, 1984; 50 FR 928, Jan. 8, 1985, unless
otherwise noted.
Sec. 0.735-42 Scope.
(a) These regulations establish procedures for imposing sanctions
against a former employee for violating the post-employment restrictions
of the conflict of interest laws and regulations set
[[Page 11]]
forth in 18 U.S.C. 207 and 5 CFR Part 737. These procedures are
established pursuant to the requirement in 18 U.S.C. 207(j). The General
Counsel is responsible for resolving questions on the legal
interpretation of 18 U.S.C. 207 or regulations issued thereunder and for
advising employees on these provisions.
(b) For purposes of this subpart, (1) ``Former employee'' means a
former Government employee as defined in 5 CFR 737.3(a)(4) who had
served in the Department;
(2) ``Lesser included sanctions'' means sanctions of the same type
but more limited scope as the proposed sanction; thus a bar on
communication with an operating unit is a lesser included sanction of a
proposed bar on communication with the Department and a bar on
communication for one year is a lesser included sanction of a proposed
five year bar;
(3) ``Assistant Secretary'' means the Assistant Secretary for
Administration or designee;
(4) ``Director'' means the Director for Personnel and Civil Rights,
Office of the Secretary, or designee;
(5) ``Inspector General'' and ``General Counsel'' include any
persons designated by them to perform their functions under this
subpart; and
(6) ``Days'' means calendar days except that a dead-line which falls
on a weekend or holiday shall be extended to the next working day.
Sec. 0.735-43 Report of violations and investigation.
(a) If an employee has information which indicates that a former
employee has violated any provisions of 18 U.S.C. 207 or regulations
thereunder, that employee shall report such information to the Inspector
General.
(b) Upon receiving information as set forth in paragraph (a) of this
section from an employee or any other person, the Inspector General,
upon a determination that it is nonfrivolous, shall expeditiously
provide the information to the Director, Office of Government Ethics,
and to the Criminal Division, Department of Justice. The Inspector
General shall coordinate any investigation under this subpart with the
Department of Justice, unless the Department of Justice informs the
Inspector General that it does not intend to initiate criminal
prosecution.
(c) All investigations under this subpart shall be conducted in such
a way as to protect the privacy of former employees. To ensure this, to
the extent reasonable and practical, any information received as a
result of an investigation shall remain confidential except as necessary
to carry out the purposes of this subpart, including the conduct of an
investigation, hearing, or judicial proceeding arising thereunder, or as
may be required to be released by law.
(d) The Inspector General shall report the findings of the
investigation to the Director.
Sec. 0.735-44 Initiation of proceedings.
If the Director determines, after an investigation by the Inspector
General, that there is reasonable cause to believe that a former
employee has violated post-employment statutes or regulations, the
Director shall initiate administrative proceedings under this subpart by
proposing sanctions against the former employee and by providing notice
to the former employee as set forth in Sec. 0.735-45.
Sec. 0.735-45 Notice.
(a) The Director shall notify the former employee of the proposed
disciplinary action in writing by registered or certified mail, return
receipt requested, or by any means which gives actual notice or is
reasonably calculated to give actual notice. Notice shall be considered
received if sent to the last known address of the former employee.
(b) The notice shall include:
(1) A statement of allegations and the basis thereof sufficiently
detailed to enable the former employee to prepare a defense;
(2) A statement that the former employee is entitled to a hearing if
requested within 20 days from date of notice;
(3) An explanation of the method by which the former employee may
request a hearing under this subpart including the name, address, and
telephone number of the person to contact if there are further
questions;
[[Page 12]]
(4) A statement that the former employee has the right to submit
documentary evidence to the Director if a hearing is not requested and
an explanation of the method of submitting such evidence and the date by
which it must be received; and
(5) A statement of the sanctions which have been proposed.
Sec. 0.735-46 Hearing.
(a) Examiner. (1) Upon timely receipt of a request for a hearing,
the Director shall refer the matter to the Assistant Secretary who shall
appoint an examiner to conduct the hearing and render an initial
decision.
(2) The examiner shall be impartial, shall not be an individual who
has participated in any manner in the decision to initiate the
proceedings, and shall not have been employed under the immediate
supervision of the former employee or have been employed under a common
immediate supervisor. The examiner shall be admitted to practice law and
have suitable experience and training to conduct the hearing, reach a
determination and render an initial decision in an equitable manner.
(b) Time, date, and place. The hearing shall be conducted at a
reasonable time, date, and place as set by the examiner. In setting the
date, the examiner shall give due regard to the need for both parties to
adequately prepare for the hearing and the importance of expeditiously
resolving allegations that may be damaging to the former employee's
reputation.
(c) Former employee's rights. At a hearing, the former employee
shall have the right:
(1) To represent himself or herself or to be represented by counsel,
(2) To introduce and examine witnesses and to submit physical
evidence,
(3) To confront and cross-examine adverse witnesses,
(4) To present oral argument, and
(5) To receive a transcript or recording of the proceedings, on
request.
(d) Procedure and evidence. In a hearing under this subpart, the
Federal Rules of Evidence and Civil Procedure do not apply but the
examiner shall exclude irrelevant or unduly repetitious evidence and all
testimony shall be taken under oath or affirmation. The examiner may
make such orders and determinations regarding the admissibility of
evidence, conduct of examination and cross-examination, and similar
matters which the examiner deems necessary or appropriate to ensure
orderliness in the proceedings and fundamental fairness to the parties.
There shall be no discovery unless agreed to by the parties and ordered
by the examiner. The hearing shall not be open to the public unless the
former employee or the former employee's representative waives the right
to a closed hearing, in which case the examiner shall determine whether
the hearing will be open to the public.
(e) Ex-parte communications. The former employee, the former
employee's representative, and the agency representative shall not make
any ex-parte communications to the examiner concerning the merits of the
allegations against the former employee prior to the issuance of the
initial decision.
(f) Initial decision. (1) The proposed sanctions shall be sustained
in an initial decision upon a determination by the examiner that the
preponderance of the evidence indicated a violation of post-employment
statutes or regulations.
(2) The examiner shall issue an initial decision which is based
exclusively on the transcript of testimony and exhibits together with
all papers and requests filed in connection with the proceeding and
which sets forth all findings of fact and conclusions of law relevant to
the matter at issue.
(3) The initial decision shall become final thirty days after
issuance if there has been no appeal filed under Sec. 0.735-48.
Sec. 0.735-47 Decision absent a hearing.
(a) If the former employee does not request a hearing in a timely
manner, the Director shall make an initial decision on the basis of
information compiled in the investigation, and any submissions made by
the former employee.
(b) The proposed sanction or a lesser included sanction shall be
imposed if the record indicates a violation of post-employment statutes
or regulations by a preponderance of the evidence.
[[Page 13]]
(c) The initial decision shall become final thirty days after
issuance if there has been no appeal filed under Sec. 0.735-48.
Sec. 0.735-48 Administrative appeal.
(a) Within 30 days after issuance of the initial decision, either
party may appeal the initial decision or any portion thereof to the
Assistant Secretary. The opposing party shall have 20 days to respond.
(b) If an appeal is filed, the Assistant Secretary shall issue a
final decision which shall be based solely on the record, or portions
thereof cited by the parties to limit issues, and the appeal and
response. The Assistant Secretary shall also decide whether to impose
the proposed sanction or a lesser included sanction.
(c) If the final decision modifies or reverses the initial decision,
it shall state findings of fact and conclusions of law which differ from
the initial decision.
Sec. 0.735-49 Sanctions.
(a) If there has been a final determination that the former employee
has violated post-employment statutes or regulations, the Director shall
impose, subject to the authority of the Assistant Secretary under Sec.
0.735-48(b), the sanction which was proposed in the notice to the former
employee or a lesser included sanction.
(b) Sanctions which may be imposed include:
(1) Prohibiting the former employee from making, on behalf of any
other person except the United States, any formal or informal appearance
before or, with the intent to influence, any oral or written
communication to the Department or any organizational sub-unit thereof
on any matter of business for a period not to exceed five years; and
(2) Other appropriate disciplinary action.
(c) The Director may enforce the sanctions of paragraph (b)(1) of
this section by directing any or all employees to refuse to participate
in any such appearance or to accept any such communication. As a method
of enforcement, the Director may establish a list of former employees
against whom sanctions have been imposed.
Sec. 0.735-50 Judicial review.
Any former employee found to have violated 18 U.S.C. 207, or
regulations issued thereunder, by a final administrative decision under
this subpart may seek judicial review of the administrative
determination.
Sec. Appendix A to Part 0--Statutes Governing Conduct of Federal
Employees
There are numerous statutes pertaining to the ethical and other
conduct of Federal employees, far too many to attempt to list them all.
Consequently, only the more important ones of general applicability are
referred to in this appendix.
a. bribery and graft
.01 Title 18, U.S.C., section 201, prohibits anyone from bribing or
attempting to bribe a public official by corruptly giving, offering, or
promising him or any person selected by him, anything of value with
intent (a) to influence any official act by him, (b) to influence him to
commit or allow any fraud on the United States, or (c) to induce him to
do or omit to do any act in violation of his lawful duty. As used in
section 201, ``Public officials'' is broadly defined to include
officers, employees, and other persons carrying on activities for or on
behalf of the Government.
.02 Section 201 also prohibits a public official's solicitation or
acceptance of, or agreement to take, a bribe. In addition, it forbids
offers or payments to, and solicitations or receipt by, a public
official of anything of value ``for or because of'' any official act
performed or to be performed by him.
.03 Section 201 further prohibits the offering to or the acceptance
by a witness of anything of value involving intent to influence his
testimony at a trial, Congressional hearing, or agency proceeding. A
similar provision applies to witnesses ``for or because of'' testimony
given or to be given. The provisions summarized in this section do not
preclude lawful witness fees, travel and subsistence expenses, or
reasonable compensation for expert testimony.
b. compensation to officers and employees in matters affecting the
government
.01 Title 18, U.S.C., section 203, prohibits an officer or employee
from receiving compensation for services rendered for others before a
Federal department or agency in matters in which the Government is a
party or is interested.
.02 Section 203 applies to a special Government employee as follows:
[[Page 14]]
a. If the special Government employee has served in the Department
of Commerce more than 60 days during the preceding period of 365 days,
section 203 applies to him only in relation to a particular matter
involving a specific party or parties (1) in which he has at any time
participated personally and substantially in his governmental capacity,
or (2) which is pending in the Department of Commerce; or
b. If the special Government employee has served in the Department
no more than 60 days during the preceding period of 365 days, section
203 applies to him only in relation to a particular matter involving a
specific party or parties in which he has at any time participated
personally and substantially in his governmental capacity.
.03 Section 203 does not apply to a retired officer of the uniformed
services while not on active duty and not otherwise an officer or
employee of the United States.
c. activities of officers and employees in claims against and other
matters affecting the government
.01 Title 18, U.S.C., section 205, prohibits an officer or employee,
otherwise than in the performance of his official duties, from:
a. Acting as agent or attorney for prosecuting any claim against the
United States, or receiving any gratuity, or any share of or interest in
any such claim in consideration of assistance in the prosecution of such
claims; or
b. Acting as agent or attorney for anyone before any Government
agency, court, or officer in connection with any matter in which the
United States is a party or has a direct and substantial interest.
.02 Section 205 applies to a special Government employee as follows:
a. If the special Government employee has served in the Department
more than 60 days during the preceding period of 365 days, section 205
applies to him only in relation to a particular matter involving a
specific party or parties (1) in which he has at any time participated
personally and substantially in his governmental capacity, or (2) which
is pending in the Department of Commerce; or
b. If the special Government employee has served in the Department
no more than 60 days during the preceding period of 365 days, section
205 applies to him only in relation to a particular matter involving a
specific party or parties in which he has at any time participated
personally and substantially in his governmental capacity.
.03 Section 205 does not preclude:
a. An employee, if not inconsistent with faithful performance of his
duties, from acting without compensation as agent or attorney for any
person who is the subject of disciplinary, loyalty, or other personnel
administration proceedings, in connection with those proceedings; or
b. An employee from giving testimony under oath or from making
statements required to be made under penalty for perjury or contempt.
.04 Sections 203 and 205 do not preclude:
a. An employee from acting as agent or attorney for his parents,
spouse, child, or any person for whom, or for any estate for which, he
is serving as guardian, executor, administrator, trustee, or other
personal fiduciary, except in those matters in which he has participated
personally and substantially as a Government employee or which are the
subject of his official responsibility, provided the head of the
operating unit concerned approves; or
b. A special Government employee from acting as agent or attorney
for another person in the performance of work under a grant by, or a
contract with, or for the benefit of, the United States, provided the
head of the operating unit concerned, with the approval of the
appropriate program Secretarial Officer, shall certify in writing that
the national interest so requires, and such certification shall be
published in the Federal Register.
.05 Section 205 does not apply to a retired officer of the uniformed
services while not on active duty and not otherwise an officer or
employee of the United States.
d. disqualification of former officers and employees in matters
connected with former duties or official responsibilities;
disqualification of partners
.01 Title 18 U.S.C., section 207:
a. Provides that a former Government officer or employee, including
a former special Government employee, shall be permanently barred from
acting as agent or attorney for anyone other than the United States in
any matter in which the United States is a party or is interested and in
which he participated personally and substantially in a governmental
capacity;
b. Bars a former Government officer or employee, including a special
Government employee, of an agency, for a period of 1 year after his
employment with it has ceased, from appearing personally as agent or
attorney for another person before any court or agency in connection
with a matter in which the Government has an interest and which was
under his official responsibility at the employing agency (e.g.,
Department of Commerce) at any time within 1 year prior to the end of
such responsibility; and
c. Prohibits a partner of a person employed by the Government,
including a special Government employee, from acting as agent or
attorney for anyone other than the United States in matters in which the
employee participates or has participated personally and substantially
for the Government or which are the subject of his official
responsibility.
[[Page 15]]
.02 Subparagraphs .01a. and .01b. of this section do not prevent a
former officer or employee or special Government employee who has
outstanding scientific or technical qualifications from acting as
attorney or agent or appearing personally before the Department of
Commerce in connection with a particular matter in a scientific or
technological field if the Assistant Secretary of Commerce for Science
and Technology shall make a certification in writing, published in the
Federal Register, that the national interest would be served by such
action or appearance by the former officer or employee.
e. acts affecting a personal financial interest
.01 Title 18, U.S.C., section 208 prohibits an officer or employee,
including a special Government employee, from participating personally
and substantially in a governmental capacity in any matter in which, to
his knowledge, he, his spouse, minor child, partner, organization in
which he is serving as officer, director, trustee, partner, or employee,
or any person or organization with whom he is negotiating or has any
arrangement concerning prospective employment, has a financial interest.
.02 Section 208 does not apply:
a. If the officer or employee first advises the head of the
operating unit concerned of the nature and circumstances of the matter
involved, makes full disclosure of the financial interest, and receives
in advance a written determination made by such official, with the
approval of the appropriate program Secretarial Officer, that the
interest is not so substantial as to be deemed likely to affect the
integrity of the services which the Government may expect from the
officer or employee; or
b. If, by general rule or regulation published in the Federal
Register, the financial interest has been exempted from the requirements
of section 208 as being too remote or too inconsequential to affect the
integrity of Government officers' or employees' services.
f. salary of government officials and employees
.01 Title 18, U.S.C., section 209, prohibits:
a. An officer or employee from receiving any salary, or any
contribution to or supplementation of salary, as compensation for his
services as an officer or employee of the United States from any source
other than the Government of the United States, except as may be
contributed out of the treasury of a State, county, or municipality; and
b. Any person or organization from paying, contributing to, or
supplementing the salary of an officer or employee under circumstances
which would make its receipt a violation of subparagraph .01a. of this
section.
.02 Section 209:
a. Does not prevent a Government employee from continuing to
participate in a bona fide pension or other welfare plan maintained by a
former employer;
b. Exempts special Government employees and employees serving the
Government without compensation, and grants a corresponding exemption to
any outside person paying compensation to such individuals; and
c. Does not prohibit the payment or acceptance of sums under the
terms of the Government Employees Training Act.
g. code of ethics for government service
``Code of Ethics for Government Service,'' House Concurrent
Resolution 175, 85th Congress, 2d Session, 72 Stat. B12 of July 11,
1958, which reads as follows:
``Any Person in Government Service Should:
``Put loyalty to the highest moral principles and to country above
loyalty to persons, party, or Government department.
``UPHOLD the Constitution, laws, and legal regulations of the United
States and all governments therein and never be a party to their
evasion.
``GIVE a full day's labor for a full day's pay; giving to the
performance of his duties his earnest effort and best thought.
``SEEK to find and employ more efficient and economical ways of
getting tasks accomplished.
``NEVER discriminate unfairly by the dispensing of special favors or
privileges to anyone, whether for remuneration or not; and never accept
for himself or his family, favors or benefits under circumstances which
might be construed by reasonable persons as influencing the performance
of his governmental duties.
``MAKE no private promises of any kind binding upon the duties of
office, since a Government employee has no private word which can be
binding on public duty.
``ENGAGE in no business with the Government, either directly or
indirectly, which is inconsistent with the conscientious performance of
his governmental duties.
``NEVER use any information coming to him confidentially in the
performance of governmental duties as a means for making private profit.
``EXPOSE corruption wherever discovered.
``UPHOLD these principles, ever conscious that public office is a
public trust.''
h. prohibitions
.01 The prohibition against lobbying with appropriated funds (18
U.S.C. 1913) reads as follows:
[[Page 16]]
``No part of the money appropriated by any enactment of Congress
shall, in the absence of express authorization by Congress, be used
directly or indirectly to pay for any personal service, advertisement,
telegram, telephone, letter, printed or written matter, or other device,
intended or designed to influence in any manner a Member of Congress, to
favor or oppose, by vote or otherwise, any legislation or appropriation
by Congress, whether before or after the introduction of any bill or
resolution proposing such legislation or appropriation, but this shall
not prevent officers or employees of the United States or of its
departments or agencies from communicating to Members of Congress on the
request of any Member or to Congress, through the proper official
channels, requests for legislation or appropriations which they deem
necessary for the efficient conduct of the public business.
``Whoever, being an officer or employee of the United States or of
any department or agency thereof, violates or attempts to violate this
section, shall be fined not more than $500 or imprisoned not more than 1
year, or both; and after notice and hearing by the superior officer
vested with the power of removing him, shall be removed from office or
employment.''
.02 The prohibitions against disloyalty and striking (5 U.S.C. 7311,
18 U.S.C. 1918). An individual may not accept or hold a position in the
Government of the United States if he:
a. Advocates the overthrow of our constitutional form of government;
b. Is a member of an organization that he knows advocates the
overthrow of our constitutional form of government;
c. Participates in a strike, or asserts the right to strike, against
the Government of the United States or the government of the District of
Columbia; or
d. Is a member of an organization of employees of the Government of
the United States or of individuals employed by the government of the
District of Columbia that he knows asserts the right to strike against
the Government of the United States or the government of the District of
Columbia.
.03 The prohibition against employment of a member of a Communist
organization (50 U.S.C. 784).
.04 The prohibitions against (a) the disclosure of classified
information (18 U.S.C. 798, 50 U.S.C. 788); and (b) the disclosure of
confidential information (18 U.S.C. 1905). Each employee who has access
to classified information, e.g., confidential, secret, or top secret, or
to a restricted area is responsible for knowing and for complying
strictly with the security regulations of the Department of Commerce.
(See Administrative Order 207-2.)
.05 The prohibition against employment in the competitive civil
service of any person who habitually uses intoxicating beverages to
excess (5 U.S.C. 7352).
.06 The prohibition against the misuse of a Government vehicle (31
U.S.C. 638a(c)). No employee may willfully use or authorize the use of a
Government-owned or Government-leased passenger motor vehicle or
aircraft for other than official purposes.
.07 The prohibition against the use of the franking privilege to
avoid payment of postage on private mail (18 U.S.C. 1719).
.08 The prohibition against the use of deceit in an examination or
personnel action in connection with Government employment (18 U.S.C.
1917).
.09 The prohibition against fraud or false statements in a
Government matter (18 U.S.C. 1001). An employee in connection with an
official matter shall not knowingly and willfully conceal or cover up a
material fact or falsify official papers or documents.
.10 The prohibition against mutilating or destroying a public record
(18 U.S.C. 2071). No employee may conceal, remove, mutilate, or destroy
Government documents or records except for the disposition of records in
accordance with law or regulation.
.11 The prohibition against counterfeiting and forging
transportation requests (18 U.S.C. 508). Falsely making, altering or
forging, in whole or in part, any form of transportation request is
prohibited.
.12 The prohibitions against:
a. Embezzlement of Government money or property (18 U.S.C. 641). No
employee may convert any Government money or Government property to his
own use or the use of another person.
b. Failure to account for public money (18 U.S.C. 643). Any
employee, who, having received public money which he is not authorized
to retain, fails to render his accounts for same as provided by law, is
guilty of embezzlement.
c. Embezzlement of the money or property of another person in the
possession of the employee by reason of his employment (18 U.S.C. 654).
An employee is prohibited from embezzling or wrongfully converting for
his own use the money or property of another which comes under his
control as the result of his employment.
.13 The prohibition against unauthorized removal or use of documents
relating to claims from or by the Government (18 U.S.C. 285). No
employee, without authority, may remove from the place where it was kept
by authority of the United States any document, record, file, or paper
intended to be used to procure the payment of money from or by the
United States or the allowance or payment of any claim against the
United States, regardless of whether the document or paper has already
been used or the claim has already been allowed or paid; and no employee
may use or attempt to use any such document, record, file, or paper to
procure
[[Page 17]]
the payment of any money from or by the United States or the allowance
or payment of any claim against the United States.
.14 The prohibition against proscribed political activities,
including the following, among others:
a. Using official authority or influence for the purpose of
interfering with or influencing the result of an election, except as
authorized by law (5 U.S.C. 7324);
b. Taking an active part in political management or in political
campaigns, except as authorized by law (5 U.S.C. 7324);
c. Offering or promising to pay anything of value in consideration
of the use of, or promise to use, any influence to procure any
appointive office or place under the United States for any person (18
U.S.C. 210);
d. Soliciting or receiving, either as a political contribution or
for personal emolument, anything of value in consideration of a promise
of support or use of influence in obtaining for any person any
appointive office or place under the United States (18 U.S.C. 211);
e. Using official authority to interfere with a Federal election (18
U.S.C. 595);
f. Promising any employment compensation, or other benefit made
possible by Act of Congress in consideration of political activity or
support (18 U.S.C. 600);
g. Action by a Federal officer or employee to solicit or receive, or
to be in any manner concerned with soliciting or receiving, any
contribution for any political purpose whatever from any other Federal
officer or employee or from any person receiving compensation for
services from money derived from the Treasury of the United States (18
U.S.C. 602);
h. Soliciting or receiving (by any person) anything of value for any
political purpose whatever on any Government premises (18 U.S.C. 603);
i. Soliciting or receiving contributions for political purposes from
anyone on Federal relief or work relief (18 U.S.C. 604);
j. Payment of a contribution for political purposes by any Federal
officer or employee to another Federal officer or employee (18 U.S.C.
607); and
k. Payment of a political contribution in excess of statutory
limitations and purchase of goods, commodities, advertising, or articles
the proceeds of which inure to the benefit of certain political
candidates or organizations (18 U.S.C. 608).
.15 The prohibition against an employee acting as the agent of a
foreign principal registered under the Foreign Agents Registration Act
(18 U.S.C. 219).
PART 1_THE SEAL OF THE DEPARTMENT OF COMMERCE--Table of Contents
Sec.
1.1 Purpose.
1.2 Description and design.
1.3 Delegation of authority.
Authority: Sec. 1, 32 Stat. 825, as amended, 15 U.S.C. 1501.
Source: 33 FR 9337, June 26, 1968, unless otherwise noted.
Sec. 1.1 Purpose.
The purpose of this part is to describe the seal of the Department
of Commerce and to delegate authority to affix the seal to
certifications and documents of the Department.
Sec. 1.2 Description and design.
(a) The Act of February 14, 1903 (32 Stat. 825, as amended) (15
U.S.C. 1501), which established the Department of Commerce, provided
that ``The said Secretary shall cause a seal of office to be made for
the said department of such device as the President shall approve, and
judicial notice shall be taken of the said seal.'' On April 4, 1913, the
President approved and declared to be the seal of the Department of
Commerce the device which he described as follows:
Arms: Per fesse azure and or, a ship in full sail on waves of the
sea, in chief proper; and in base a lighthouse illumined proper.
Crest: The American Eagle displayed. Around the Arms, between two
concentric circles, are the words:
Department of Commerce
United States of America
(b) The design of the approved seal is as shown below. Where
necessitated by requirements of legibility, immediate comprehension, or
clean reproduction, the concentric circles may be eliminated from the
seal on publications and exhibits, and in slides, motion pictures, and
television. In more formal uses of the seal, such as on letterheads, the
full, proper rendition of the seal shall be used.
[[Page 18]]
[GRAPHIC] [TIFF OMITTED] TC20SE91.005
(c) The official symbolism of the seal shall be the following: The
ship is a symbol of commerce; the blue denotes uprightness and
constancy; the lighthouse is a well-known symbol representing guidance
from the darkness which is translated to commercial enlightenment; and
the gold denotes purity. The crest is the American bald eagle denoting
the national scope of the Department's activities. (The above is a
modification of the original symbolism issued with the President's
approval of the seal, made necessary by
changes in the functions of the Department.)
Sec. 1.3 Delegation of authority.
(a) Pursuant to authority vested in the Secretary of Commerce by
law, (1) the Chief Administrative Officer of each operating unit, and
(2) the Director, Office of Administrative Services in the Office of the
Secretary, are hereby authorized to sign as Certifying Officers
certifications as to the official nature of copies of correspondence and
records from the files, publications and other documents of the
Department and to affix the seal of the Department of Commerce to such
certifications or documents for all purposes, including the purpose
authorized by 28 U.S.C. 1733(b).
(b) Delegations of authority to persons other than those named in
paragraph (a) of this section may be made by the Assistant Secretary for
Administration.
(c) This delegation shall not affect or prejudice the use of
properly authorized office or bureau seals in appropriate cases.
PART 2_PROCEDURES FOR HANDLING AND SETTLEMENT OF CLAIMS UNDER THE FEDERAL
TORT CLAIMS ACT--Table of Contents
Sec.
2.1 Purpose.
2.2 Provisions of law and regulations thereunder.
2.3 Delegation of authority.
2.4 Procedure for filing claims.
2.5 Adjudication and settlement of claims.
2.6 Payment of claims.
2.7 Supplementary regulations.
Authority: 28 U.S.C. 2672.
Sec. 2.1 Purpose.
(a) The purpose of this part is to delegate authority to settle or
deny claims under the Federal Tort Claims Act (in part, 28 U.S.C. 2671-
2680) as amended by Pub. L. 89-506, 80 Stat. 306, and to establish
procedures for the administrative adjudication of such claims accruing
on or after January 18, 1967.
[32 FR 3769, Mar. 7, 1967, as amended at 48 FR 31636, July 11, 1983]
Sec. 2.2 Provisions of law and regulations thereunder.
(a) Section 2672 of Title 28, U.S. Code, as above amended, provides
that:
The head of each Federal agency or his designee, in accordance with
regulations prescribed by the Attorney General, may consider, ascertain,
adjust, determine, compromise, and settle any claim for money damages
against the United States for injury or loss of property or personal
injury or death caused by the negligent or wrongful act or omission of
any employee of the agency while acting within the scope of his office
or employment, under circumstances where the United States, if a private
person, would be liable to the claimant in accordance with the law of
the place where the act or omission occurred: Provided, that any award,
compromise, or settlement in excess of $25,000 shall be effected only
with the prior written approval of the Attorney General or his designee.
Subject to the provisions of this title relating to civil actions on
tort claims against the United States, any such award, compromise,
settlement, or determination shall be final and conclusive on all
officers of the Government, except when procured by means of fraud.
[[Page 19]]
Any award, compromise, or settlement in an amount of $2,500 or less
made pursuant to this section shall be paid by the head of the Federal
agency concerned out of appropriations available to that agency. Payment
of any award, compromise, or settlement in an amount in excess of $2,500
made pursuant to this section or made by the Attorney General in any
amount pursuant to section 2677 of this title shall be paid in a manner
similar to judgments and compromises in like causes and appropriations
or funds available for the payment of such judgments and compromises are
hereby made available for the payment of awards, compromises, or
settlements under this chapter.
The acceptance by the claimant of any such award, compromise, or
settlement shall be final and conclusive on the claimant, and shall
constitute a complete release of any claim against the United States and
against the employee of the Government whose act or omission gave rise
to the claim, by reason of the same subject matter.
(b) Subsection (a) section 2675 of said Title 28 provides that:
An action shall not be instituted upon a claim against the United
States for money damages for injury or loss of property or personal
injury or death caused by the negligent or wrongful act or omission of
any employee of the Government while acting within the scope of his
office or employment, unless the claimant shall have first presented the
claim to the appropriate Federal agency and his claim shall have been
finally denied by the agency in writing and sent by certified or
registered mail. The failure of an agency to make final disposition of a
claim within 6 months after it is filed shall, at the option of the
claimant any time thereafter, be deemed a final denial of the claim for
purposes of this section. The provisions of this subsection shall not
apply to such claims as may be asserted under the Federal Rules of Civil
Procedure by third party complaint, crossclaim, or counterclaim.
(c) Section 2678 of said Title 28 provides that no attorney shall
charge fees in excess of 25 percent of a judgment or settlement after
litigation, or over 20 percent of administrative settlements.
(d) Section 2401(b) of said Title 28 provides that:
A tort claim against the United States shall be forever barred
unless it is presented in writing to the appropriate Federal agency
within 2 years after such claim accrues or unless action is begun within
6 months after the date of mailing, by certified or registered mail, of
notice of final denial of the claim by the agency to which it was
presented.
(e) Pursuant to section 2672 as amended, the Attorney General has
issued regulations (herein referred to as ``the Regulations''; 28 CFR
Part 14) prescribing standards and procedures for settlement of tort
claims (31 FR 16616). Persons delegated authority under this part shall
follow and be guided by such Regulations (28 CFR Part 14).
[32 FR 3769, Mar. 7, 1967, as amended at 63 FR 29945, June 2, 1998]
Sec. 2.3 Delegation of authority.
(a) The General Counsel is hereby named as the designee of the
Secretary ofCommerce with respect to tort claims filed under section
2672 of Title 28, U.S. Code, as described in Sec. 2.2, with authority
to act on such claims as provided in said section 2672, including denial
thereof.
(b) Authority delegated under this section may, with the approval of
the General Counsel, be redelegated to other designees.
(c) Settlement or denial of any claim under this part is final for
the Department of Commerce.
[48 FR 31636, July 11, 1983]
Sec. 2.4 Procedure for filing claims.
(a) The procedure for filing and the contents of claims shall be
pursuant to Sec. Sec. 14.2, 14.3, and 14.4 of the Regulations (28 CFR
Part 14).
(b) Claims shall be filed with the Assistant General Counsel for
Finance and Litigation, Department of Commerce, Washington, D.C. 20230.
(c) If a claim is filed elsewhere in the Department, it shall
immediately be recorded and transmitted to the Assistant General Counsel
for Finance and Litigation.
[32 FR 3769, Mar. 7, 1967, as amended at 48 FR 31636, July 11, 1983; 63
FR 29945, June 2, 1998]
Sec. 2.5 Adjudication and settlement of claims.
(a) Upon receipt of a claim by the Assistant General Counsel for
Finance and Litigation, the time and date of receipt shall be recorded.
The Assistant General Counsel may, after recording the claim, transmit
it to the Departmental office or primary operating unit involved in the
claim and request
[[Page 20]]
that an investigation be conducted. The appropriate Departmental office
or primary operating unit shall designate an official to conduct the
investigation, who shall prepare a file, obtain additional information
as necessary, and prepare for the Assistant General Counsel's signature
a proposed award or denial of the claim. If the investigation
capabilities of the office or unit are insufficient for a proper and
complete investigation, the office or unit shall consult with the
Departmental Office of Investigations and Security to:
(1) Have that Office conduct the investigation or
(2) Request another Federal agency to conduct the investigation as
necessary, pursuant to Sec. 14.8 of the regulations (28 CFR Part 14),
all on a reimbursable basis.
(b) If the amount of the proposed award exceeds $25,000 (in which
case, approval by the Attorney General is required), or if consultation
with the Department of Justice is desired or required pursuant to Sec.
14.6 of the regulations, the Assistant General Counsel for Finance and
Litigation will prepare and compile the material required by the
Department of Justice under Sec. 14.7 of the Regulations.
(c) Denial of a claim shall be communicated as provided by Sec.
14.9 of the regulations (28 CFR Part 14).
(d) Designees hereunder are responsible for the control over and
expeditious handling of claims, bearing in mind the applicable statutory
time limitations for adjudications of claims.
[32 FR 3769, Mar. 7, 1967, as amended at 48 FR 31636, July 11, 1983; 63
FR 29945, June 2, 1998]
Sec. 2.6 Payment of claims.
When an award is made, the file on the case shall be transmitted to
the appropriate fiscal office for payment by the Department or for
transmittal for payment as prescribed by Sec. 14.10 of the Regulations
(28 CFR Part 14). Prior to payment appropriate releases shall be
obtained, as provided in said section.
[32 FR 3769, Mar. 7, 1967]
Sec. 2.7 Supplementary regulations.
(a) The Assistant General Counsel for Finance and Litigation may
from time to time issue such supplementary regulations or instructions
as he/she deems appropriate to carry out the purpose of this part.
(b) Any designee mentioned in paragraph (a) of Sec. 2.3 may issue
regulations or instructions covering his/her area of responsibility
hereunder which are consistent with this part and with those issued
under paragraph (a) of this section, such regulations and instructions
to be approved by the Assistant General Counsel for Finance and
Litigation.
[32 FR 3769, Mar. 7, 1967, as amended at 48 FR 31636, July 11, 1983.
Redesignated and amended at 63 FR 29945, June 2, 1998]
PART 3_IMPLEMENTATION OF THE HAVANA ACT OF 2021--Table of Contents
Sec.
3.1 Authority.
3.2 Definitions.
3.3 Eligibility for payments by the Department of Commerce.
3.4 Consultation with other agencies.
Authority: 22 U.S.C. 2680b.
Source: 88 FR 23112, Apr. 19, 2023, unless otherwise noted.
Sec. 3.1 Authority.
(a) Under section 3 of the HAVANA Act of 2021 (Pub. L. 117-46),
codified in 22 U.S.C. 2680b, the Secretary of Commerce or other agency
heads may provide a payment for a qualifying injury to the brain to a
covered employee or covered dependent, who incurred a qualifying injury
to the brain on or after January 1, 2016. The authority to provide such
payments is at the sole discretion of the Secretary or their designee.
(b) The regulations in this part are issued in accordance with 22
U.S.C. 2680b(i)(4) and also apply to former covered employees of the
Department of Commerce and their covered dependents.
Sec. 3.2 Definitions.
(a) Covered employee. (1) An employee of the Department of Commerce
who, on or after January 1, 2016, becomes injured by reason of a
qualifying injury to the brain.
[[Page 21]]
(2) The following are considered employees of the Department of
Commerce for the purposes of this part: Department of Commerce employees
in the Foreign Service, National Oceanic and Atmospheric Administration
Commissioned Corps Officers, and Department of Commerce employees who
meet the definition of ``employee'' set forth in 5 U.S.C. 2105(a),
including students providing volunteer service under 5 U.S.C. 3111.
(3) The following are not considered employees of the Department of
Commerce for purposes of this part: employees or retired employees of
other agencies.
(b) Covered dependent. A family member of a Department of Commerce
current or former employee who, on or after January 1, 2016, becomes
injured by reason of a qualifying injury to the brain while the
dependent's sponsor was an employee of the Department of Commerce as
specified in paragraph (a)(2) of this section.
(c) Covered individual. A former employee of the Department of
Commerce who, on or after January 1, 2016, becomes injured by reason of
a qualifying injury to the brain while they were an employee of the
Department of Commerce as specified in paragraph (a)(2) of this section.
(d) Family member. For purposes of determining ``covered
dependent,'' a family member is defined as follows:
(1) Children who are unmarried and under 21 years of age at the time
of the qualifying injury or, regardless of age, are unmarried and due to
mental and/or physical limitations are incapable of self-support. The
term ``children'' must include natural offspring, step-children, adopted
children, and those under permanent legal guardianship (at least until
age 18), or comparable permanent custody arrangement, of the employee or
spouse or domestic partner when dependent upon and normally residing
with the guardian or custodial party, and U.S. citizen children placed
for adoption if a U.S. court grants temporary guardianship of the child
to the employee and specifically authorizes the child to reside with the
employee in the country of assignment before the adoption is finalized;
(2) Parents (including stepparents and legally adoptive parents) of
the employee or of the spouse or of the domestic partner;
(3) Sisters and brothers (including stepsisters or stepbrothers, or
adoptive sisters or brothers) of the employee, or of the spouse when
such sisters and brothers are at least 51 percent dependent on the
employee for support, unmarried and under 21 years of age, or regardless
of age, are physically and/or mentally incapable of self-support; and
(4) Spouse.
(e) Qualifying injury to the brain. (1) The injury must have
occurred in connection with war, insurgency, hostile act, terrorist
activity, or other incidents designated by the Secretary of State or the
Secretary of Commerce, as permitted by law, and was not the result of
the willful misconduct of the individual; and
(2) The individual must have:
(i) An acute injury to the brain such as, but not limited to, a
concussion, penetrating injury, or as the consequence of an event that
leads to permanent alterations in brain function as demonstrated by
confirming correlative findings on imaging studies (to include computed
tomography scan (CT), or magnetic resonance imaging scan (MRI)), or
electroencephalogram (EEG); or
(ii) A medical diagnosis of a traumatic brain injury (TBI) that
required active medical treatment for 12 months or more; or
(iii) Acute onset of new persistent, disabling neurologic symptoms
as demonstrated by confirming correlative findings on imaging studies
(to include CT or MRI), or EEG, or physical exam, or other appropriate
testing, and that required active medical treatment for 12 months or
more.
(f) Other incident. A new onset of physical manifestations that
cannot otherwise be readily explained.
Sec. 3.3 Eligibility for payments by the Department of Commerce.
(a) The Department of Commerce may provide a payment to covered
individuals, as defined this section, if the qualifying injury to the
brain was assessed and diagnosed in person by a currently board-
certified physician
[[Page 22]]
from the American Board of Psychiatry and Neurology (ABPN), the American
Osteopathic Board of Neurology and Psychiatry (AOBNP), the American
Board of Physical Medicine and Rehabilitation (ABPMR), or the American
Board of Physical Medicine and Rehabilitation (AOBPMR); and occurred on
or after January 1, 2016, and while the individual was a covered
employee of the Department of Commerce.
(b) The Department of Commerce may provide a payment to covered
employees, as defined in this section, if the qualifying injury to the
brain was assessed and diagnosed in person by a currently board-
certified physician from ABPN, AOBNP, ABPMR, or AOBPMR; and occurred on
or after January 1, 2016, and while the employee was a covered employee
of the Department.
(c) The Department of Commerce may provide a payment to a covered
dependent, if the qualifying injury to the brain was assessed and
diagnosed in person by a currently board-certified physician from the
ABPN, AOBNP, ABPMR, or AOBMR; and occurred on or after January 1, 2016,
and while the dependent's sponsor was a covered employee of the
Department.
(d) Payment for a qualifying injury to the brain will be a non-
taxable, one-time lump sum payment.
(e) The Department will determine the amount paid to each eligible
person based on the following factors:
(1) The responses on Form CD-350, ``Eligibility Questionnaire for
HAVANA Act Payments''; and
(2) Whether the Department of Labor has determined that the
requestor has no reemployment potential, or the Social Security
Administration has approved the requestor for Social Security Disability
Insurance or Supplemental Security Insurance (SSI) benefits; or the
requestor's ABPN, AOBPN, ABPMR, or AOBPMR-certified physician has
certified that the individual requires a full-time caregiver for
activities of daily living, as defined by the Katz Index of Independence
of Daily Living.
(3) The award thresholds are based on the Level III of the Executive
Schedule: Base payment will be 75 percent of Level III pay, and Base
Plus payment will be 100 percent of Level III pay. If the requestor
meets any of the criteria listed in paragraph (e)(2) of this section,
the requestor will be eligible to receive a Base Plus payment.
Requestors who are otherwise eligible for payment for a qualifying
injury to the brain (defined in Sec. 3.2(e)) but do not meet any of the
criteria listed in paragraph (e)(2) of this section will be eligible to
receive a Base payment. If a requestor who received a Base payment later
meets any of the criteria listed in paragraph (e)(2) of this section,
the requestor may apply for an additional payment that will be the
difference between the Base and Base Plus payment.
(f) The Director, Office of Human Resources Management may approve
payments under this section. The Office of Human Resources Management
will notify individuals of the decision in writing.
(g) An appeal of a decision made by the Director, Office of Human
Resources Management may be directed to the Deputy Assistant Secretary
for Administration in writing. The Deputy Assistant Secretary for
Administration is the final appeal authority. The Office of Human
Resources Management will notify individuals of the decision in writing.
Sec. 3.4 Consultation with other agencies.
The Department may consult with the appropriate officials in other
Federal agencies to identify their current and former covered employees,
and current and former dependents who reported an anomalous health
incident. The Department will not process payment for employees, former
employees, or dependents of current or former employees of other
agencies.
PART 4_DISCLOSURE OF GOVERNMENT INFORMATION--Table of Contents
Subpart A_Freedom of Information Act
Sec.
4.1 General provisions.
4.2 Public reading rooms.
4.3 Records under the FOIA.
4.4 Requirements for making requests.
4.5 Responsibility for responding to requests.
4.6 Time limits and expedited processing.
[[Page 23]]
4.7 Responses to requests.
4.8 Classified information.
4.9 Confidential commercial information.
4.10 Appeals from initial determinations or untimely delays.
4.11 Fees.
Subpart B_Privacy Act
4.21 Purpose and scope.
4.22 Definitions.
4.23 Procedures for making inquiries.
4.24 Procedures for making requests for records.
4.25 Disclosure of requested records to individuals.
4.26 Special procedures: Medical records.
4.27 Procedures for making requests for correction or amendment.
4.28 Agency review of requests for correction or amendment.
4.29 Appeal of initial adverse agency determination on correction or
amendment.
4.30 Disclosure of record to person other than the individual to whom it
pertains.
4.31 Fees.
4.32 Penalties.
4.33 General exemptions.
4.34 Specific exemptions.
Appendix A to Part 4--Freedom of Information Public Inspection
Facilities, and Addresses for Requests for Records Under the
Freedom of Information Act and Privacy Act, and Requests for
Correction or Amendment Under the Privacy Act
Appendix B to Part 4--Officials Authorized To Deny Requests for Records
Under the Freedom of Information Act, and Requests for Records
and Requests for Correction or Amendment Under the Privacy Act
Appendix C to Part 4--Systems of Records Noticed by Other Federal
Agencies and Applicable to Records of the Department, and
Applicability of This Part Thereto.
Authority: 5 U.S.C. 301; 5 U.S.C. 552; 5 U.S.C. 552a; 5 U.S.C. 553;
31 U.S.C. 3717; 44 U.S.C. 3101; Reorganization Plan No. 5 of 1950.
Source: 66 FR 65632, Dec. 20, 2001, unless otherwise noted.
Editorial Note: Nomenclature changes to part 4 appear at 80 FR
70154, Nov. 13, 2015.
Subpart A_Freedom of Information Act
Sec. 4.1 General provisions.
(a) The information in this part is furnished for the guidance of
the public and in compliance with the requirements of the Freedom of
Information Act (FOIA), as amended (5 U.S.C. 552). This part sets forth
the procedures the Department of Commerce (Department) and its
components follow to make publicly available materials and indices
specified in 5 U.S.C. 552(a)(2) and records requested under 5 U.S.C.
552(a)(3). Information routinely provided to the public as part of a
regular Department activity (for example, press releases issued by the
Office of Public Affairs) may be provided to the public without
following this part. In addition, as a matter of policy, the Department
shall make discretionary releases of records or information exempt from
disclosure under the FOIA when required to do so in accordance with
current law and/or Executive Branch policy. This policy does not create
any right enforceable in court.
(b) As used in this subpart, component means any office, division,
bureau or other unit of the Department listed in Appendix A to this part
(except that a regional office of a larger office or other unit does not
constitute a separate component).
(c) The Department has a FOIA Requester Service Center with at least
one FOIA Public Liaison. Each Department component may have a FOIA
Requester Service Center with at least one FOIA Public Liaison. FOIA
Public Liaisons are responsible for: Working with requesters that have
any concerns about the service received from a FOIA component, reducing
delays in the processing of FOIA requests, increasing transparency and
understanding of the status of requests, and assisting in the resolution
of disputes. Contact information for the relevant component FOIA
Requester Service Centers, FOIA Public Liaisons, and component FOIA
offices and contacts is available at http://www.osec.doc.gov/opog/
contacts.html.
(d) The Office of Government Information Services (OGIS) within the
National Archives and Records Administration offers mediation services
to resolve disputes between requesters and agencies as a non-exclusive
alternative to litigation. Requesters with concerns
[[Page 24]]
about the handling of their requests may contact OGIS.
[66 FR 65632, Dec. 20, 2001, as amended at 79 FR 62557, Oct. 20, 2014;
83 FR 39589, Aug. 10, 2018]
Sec. 4.2 Public reading rooms.
(a) Records that the FOIA requires to be made available for public
inspection and copying are accessible electronically through the
Department's ``Electronic FOIA Library'' on the Department's website,
http://www.doc.gov, which includes links to websites for those
components that maintain Electronic FOIA Libraries. Each component of
the Department is responsible for determining which of its records are
required to be made available, as well as identifying additional records
of interest to the public that are appropriate for disclosure, and for
making those records available either in its own Electronic Library or
in the Department's central Electronic FOIA Library. Components that
maintain their own Electronic FOIA Libraries are designated as such in
Appendix A to this part. Each component shall also maintain and make
available electronically a current subject-matter index of the records
made available electronically. Each component shall ensure that posted
records and indices are updated regularly, at least quarterly.
(b) If the requester does not have access to the Internet and wishes
to obtain information regarding publicly available information, he or
she may contact the component's FOIA office. Appendix A to this part
contains the contact information for the components' FOIA offices. Some
components may also maintain physical public reading rooms. These
components and their contact information are listed in Appendix A to
this part.
(c) The Department and its components shall maintain and make
available electronically for public inspection:
(1) Copies of records that have been released and--
(i) That the component that maintains them determines, because of
their subject matter, have become or are likely to become the subject of
subsequent requests for substantially the same records by other
requesters, or
(ii) That have been requested three or more times by different
requesters;
(2) A general index of the records available for public inspection--
for purposes of these regulations, a general index includes records
available through a search capability on the Department or component's
website, such as a person finder;
(3) Final opinions and orders, including concurring and dissenting
opinions made in the adjudication of cases;
(4) Those statements of policy and interpretations that have been
adopted by a component and are not published in the Federal Register;
and
(5) Administrative staff manuals and instructions to staff that
affect a member of the public.
[79 FR 62558, Oct. 20, 2014, as amended at 83 FR 39589, Aug. 10, 2018]
Sec. 4.3 Records under the FOIA.
(a) Records under the FOIA include all Government records,
regardless of format, medium or physical characteristics, and electronic
records and information, audiotapes, videotapes, Compact Disks, DVDs,
and photographs.
(b) In response to a FOIA request, the Department has no obligation
to create, compile, or obtain from outside the Department a record to
satisfy a request (for example, extrapolating information from existing
agency records, reformatting available information, preparing new
electronic programs or databases, or creating data through calculations
of rations, proportions, percentages, trends, frequency distributions,
correlations, or comparisons). In complying with a request for records
(including data and other electronically-stored information), whether
the Department creates or compiles records (as by undertaking
significant programming work) or merely extracts them from an existing
database is fact dependent. The Department shall undertake reasonable
efforts to search for records stored in electronic format (including
data and other electronically-stored information).
(c) Department officials may, upon request, create and provide new
records to the public pursuant to statutes that authorize the creation
and provision of new records for a fee, such as the first
[[Page 25]]
paragraph of 15 U.S.C. 1525, or in accordance with authority otherwise
provided by law. Such creation and provision of records is outside the
scope of the FOIA.
(d) Components shall preserve all correspondence pertaining to the
requests they receive under this subpart, as well as copies of all
requested records, until disposition or destruction is authorized by
Title 44 of the United States Code or the National Archives and Records
Administration's General Records Schedule 4.2, Information Access and
Protection Records. Components shall not dispose of records while they
are the subject of a pending request, appeal, or lawsuit under the FOIA.
[66 FR 65632, Dec. 20, 2001, as amended at 79 FR 62558, Oct. 20, 2014;
83 FR 39589, Aug. 10, 2018]
Sec. 4.4 Requirements for making requests.
(a) How made and addressed. The Department has a decentralized
system for responding to FOIA requests, with each component designating
a FOIA office to process records from that component. All components
have the capability to receive requests electronically through
electronic mail (email). A request for Department records that are not
customarily made available to the public as part of the Department's
regular informational services (or pursuant to a user fee statute), must
be in writing and shall be processed under the FOIA, regardless of
whether the FOIA is mentioned in the request. Requests must include the
requester's full name and a valid return address. Requesters may also
include other contact information, such as an email address and a
telephone number. For the quickest handling, the request (and envelope,
if the request is mailed or hand delivered) should be marked ``Freedom
of Information Act Request.'' Requests may be submitted by U.S. mail,
delivery service, email, or online case management system. Requests may
also be submitted to some components, identified in Appendix A to this
part, by facsimile. Requests should be sent to the Department component
identified in Appendix A to this part that maintains those records
requested, and should be sent to the addresses, email addresses, or
numbers listed in Appendix A to this part or the Department's website,
http://www.doc.gov.\1\ If the proper component cannot be determined, the
request should be sent to the central facility identified in Appendix A
to this part. The central facility will forward the request to the
component(s) it believes most likely to have the requested records.
Requests will be considered received for purposes of the 20-day time
limit of Sec. 4.6 as of the date it is received by the proper
component's FOIA office, but in any event not later than ten working
days after the request is first received by any Department component
identified in Appendix A to this part.
---------------------------------------------------------------------------
\1\ The USPTO, which is established as an agency of the United
States within the Department, operates under its own FOIA regulations at
37 CFR part 102, subpart A. Accordingly, requests for USPTO records, and
any appeals thereof, should be sent directly to the USPTO.
---------------------------------------------------------------------------
(b) Requests for records about an individual or oneself. For
requests for records about oneself, Sec. 4.24 contains additional
requirements. For requests for records about another individual, either
a notarized authorization signed by that individual or a declaration by
that individual made under 28 U.S.C. 1746, a law that permits statements
to be made under penalty of perjury as a substitute for notarization,
permitting disclosure of the individual's records to the requester, or
proof that the individual is deceased (for example, a copy of a death
certificate or an obituary) will facilitate processing the request.
(c) Description of records sought. (1) A FOIA request must
reasonably describe the agency records sought, to enable Department
personnel to locate them with a reasonable amount of effort.
(2) Whenever possible, a request should include specific information
about each record sought, such as the date, title or name, author,
recipient, subject matter of the record, case number, file designation,
or reference number, and the name and location of the office where the
record(s) might be found.
(i) In addition, if records about a court case are sought, the title
of the case, the court in which the case was
[[Page 26]]
filed, and the nature of the case should be included.
(ii) If known, any file designations or descriptions of the
requested records should be included.
(iii) As a general rule, the more specifically the request describes
the records sought, the greater the likelihood that the Department will
be able to locate those records.
(3) Before submitting their requests, requesters may first contact
the Department's or the component's FOIA contact to discuss the records
they are seeking and to receive assistance in describing the records.
(4) For further assistance, requesters may also contact the relevant
FOIA Requester Service Center or FOIA Public Liaison. Contact
information for relevant FOIA Requester Service Centers and FOIA Public
Liaisons is contained on the Department's website, http://
www.osec.doc.gov/opog/contacts.html and Appendix A to this part.
(5) If a component determines that a request does not reasonably
describe the records sought, it shall inform the requester what
additional information is needed or how the request is otherwise
insufficient, to enable the requester to modify the request to meet the
requirements of this section.
(6) Requesters who are attempting to reformulate or modify such a
request may discuss their request first with the relevant FOIA Contact,
or if unresolved, with the relevant Requester Service Center or FOIA
Public Liaison to discuss the records they are seeking and to receive
assistance in describing the records.
(7) When a requester fails to provide sufficient detail within 30
calendar days after having been asked to reasonably describe the records
sought, the component shall notify the requester in writing that the
request has not been properly made, that no further action will be
taken, and that the FOIA request is closed. Such a notice constitutes an
adverse determination under Sec. 4.7(c)(2) for which components shall
follow the procedures for a denial letter under Sec. 4.7(c)(3).
(8) In cases where a requester has modified his or her request, the
date of receipt for purposes of the 20-day time limit of Sec. 4.6 shall
be the date of receipt of the modified request.
[83 FR 39590, Aug. 10, 2018, as amended at 88 FR 36470, June 5, 2023]
Sec. 4.5 Responsibility for responding to requests.
(a) In general. Except as stated in paragraph (b) of this section,
the proper component of the Department to respond to a request for
records is the component that first receives the request and has
responsive records (or in the instance of where no records exist, the
component that first receives the request and is likely to have
responsive records), or the component to which the Departmental FOIA
Officer or component FOIA Officer assigns lead responsibility for
responding to the request. Where a component's FOIA office determines
that a request was misdirected within the Department, the receiving
component's FOIA office shall route the request to the FOIA office of
the proper component(s). Records responsive to a request shall include
those records within the Department's possession and control as of the
date the Department begins its search for them. A record that is
excluded from the requirements of the FOIA pursuant to 5 U.S.C. 552(c),
is not considered responsive to a request.
(b) Consultations and referrals. When the Department or a component
receives a request for a record (or a portion thereof) in its possession
that originated with another Departmental component or Federal agency
subject to the FOIA, the Department or component should typically refer
the record to the component or originating agency for direct response to
the requester (see Sec. 4.8 for additional information about referrals
of classified information). When the Department or a component receives
a request for a record (or a portion thereof) in its possession that
originated with another Departmental component, Federal agency, or
executive branch office that is not subject to the FOIA, the Department
or component shall consult with that component, Federal agency, or
executive branch office before responding to the requester. In instances
where a record is requested that originated with the Department or
component and
[[Page 27]]
another component, Federal agency, or executive branch office has
substantial interest in the record (or a portion thereof), the
Department or component should typically consult with that component,
Federal agency, or executive branch office before responding to the
requester.
(c) Notice of referral. Whenever a component refers a record to
another Federal agency or Department component for direct response to
the requester, the component's FOIA Officer should typically notify the
requester in writing of the referral and inform the requester of the
name(s) of the agency or Department component to which the record was
referred, including that agency's or component's FOIA contact
information. The standard referral procedure is not appropriate where
disclosure of the identity of the agency or Department component to
which the referral would be made could harm an interest protected by an
applicable exemption, such as the exemptions that protect personal
privacy or national security interests. For example, if a non-law
enforcement agency responding to a request for records on a living third
party locates within its files records originating with a law
enforcement agency, and if the existence of that law enforcement
interest in the third party were not publicly known, then to disclose
that law enforcement interest by providing notice of a referral could
cause an unwarranted invasion of the personal privacy of the third
party. In such cases, the agency that received the request should
consult with the originating agency to seek its views on the
disclosability of the record and the release determination should then
be conveyed to the requester by the agency that originally received the
request.
(d) Timing of responses to consultations and referrals. All
consultations and referrals shall be handled in chronological order,
based on when the FOIA request was received by the first Federal agency.
(e) Agreements regarding consultations and referrals. Components may
make agreements with other Federal agencies to eliminate the need for
consultations or referrals for particular types of records.
[66 FR 65632, Dec. 20, 2001, as amended at 71 FR 31073, June 1, 2006; 79
FR 62559, Oct. 20, 2014; 83 FR 39590, Aug. 10, 2018]
Sec. 4.6 Time limits and expedited processing.
(a) In general. Components ordinarily shall respond to requests
according to their order of receipt.
(b) Initial response and appeal. Unless the component and the
requester have agreed otherwise, or when ``unusual circumstances'' exist
as provided for in paragraph (d) of this section, a determination
whether to comply with a FOIA request shall be made by components within
20 working days (i.e., excluding Saturdays, Sundays, and legal public
holidays) of the receipt of a request for a record under this part by
the proper component identified in accordance with Sec. 4.5(a). In
instances involving misdirected requests that are re-routed pursuant to
Sec. 4.5(a), the response time shall commence on the date that the
request is received by the proper component, but in any event not later
than ten working days after the request is first received by any
designated component. An administrative appeal, other than an appeal
from a request made to the Office of the Inspector General, shall be
decided within 20 working days of its receipt by the Office of the
General Counsel. An administrative appeal from a request made to the
Office of the Inspector General shall be decided within 20 working days
of its receipt by the Office of the Inspector General Office of Counsel.
The Department's failure to comply with the time limits identified in
this paragraph constitutes exhaustion of the requester's administrative
remedies for the purposes of judicial action to compel disclosure.
(c) Clarification of request. Components may seek a one-time
clarification of a request for records under this part. The component's
request for clarification must be in writing. When a component seeks
clarification of a request, the time for responding to a request set
forth in Sec. 4.6(b) is tolled until the requester responds to the
clarification request. The tolled period will end when the component
that sought the
[[Page 28]]
clarification receives a response from the requester. If a component
asks for clarification and does not receive a written response from the
requester within 30 calendar days from the date of the component's
clarification request, the component will presume that the requester is
no longer interested and notify the requester that the request will be
closed.
(d) Unusual circumstances. (1) Components may extend the time period
for processing a FOIA request only in ``unusual circumstances,'' as
described in paragraph (d)(2) of this section, in which the component
shall, before expiration of the twenty-day period to respond, notify the
requester of the extension in writing of the unusual circumstances
involved and the date by which processing of the request is expected to
be completed. If the extension is for more than ten working days, the
component shall provide the requester with an opportunity to modify the
request or agree to an alternative time period for processing the
original or modified request. Furthermore, the requester will be advised
that the relevant FOIA Public Liaison or FOIA contact is available for
this purpose and of the requester's right to seek dispute resolution
services from the Office of Government Information Services (OGIS).
(2) For purposes of this section, ``unusual circumstances'' include:
(i) The need to search for and collect the requested agency records
from field facilities or other establishments that are separate from the
office processing the request;
(ii) The need to search for, collect, and appropriately examine a
voluminous amount of separate and distinct records that are the subject
of a single request; or
(iii) The need to consult, which shall be conducted with all
practicable speed, with another Federal agency having a substantial
interest in the determination of the FOIA request or with another
component of the Department which has a substantial interest in the
determination of the request.
(3) If a component reasonably believes that multiple requests
submitted by a requester, or by a group of requesters acting in concert,
constitute a single request that would otherwise involve unusual
circumstances, and the requests involve clearly related matters, the
component may aggregate them. Multiple requests involving unrelated
matters will not be aggregated.
(e) Multi-track processing. (1) A component must use two or more
processing tracks by distinguishing between simple and more complex
requests based on the amount of work and/or time needed to process the
request, including the amount of pages involved, the need to consult
with or refer to other agencies or Department components or for
commercial confidential information to a third party, or whether the
request qualifies for unusual circumstances as described in paragraph
(d)(2) of this section, and whether the request qualifies for expedited
processing as described in paragraph (f) of this section.
(2) A component using multi-track processing may provide requesters
in its slower track(s) with an opportunity to limit the scope of their
requests in order to qualify for faster processing. A component doing so
shall contact the requester by telephone, email, letter, or online FOIA
case management system, whichever is the most efficient in each case.
(f) Expedited processing. (1) Requests and appeals shall be taken
out of order and given expedited treatment whenever it is determined
that they involve:
(i) Circumstances in which the lack of expedited treatment could
reasonably be expected to pose an imminent threat to the life or
physical safety of an individual;
(ii) The loss of substantial due process rights;
(iii) A matter of widespread and exceptional media interest
involving questions about the Government's integrity which affect public
confidence; or
(iv) An urgency to inform the public about an actual or alleged
Federal Government activity, if made by a person primarily engaged in
disseminating information.
(2) A request for expedited processing may be made at the time of
the initial request for records or at any later time. For a prompt
determination, a request for expedited processing should
[[Page 29]]
be sent to the component listed in Appendix A to this part that
maintains the records requested.
(3) A requester who seeks expedited processing must submit a
statement, certified to be true and correct to the best of that person's
knowledge and belief, explaining in detail the basis for requesting
expedited processing. For example, a requester within the category
described in paragraph (f)(1)(iv) of this section, if not a full-time
member of the news media, must establish that he or she is a person
whose primary professional activity or occupation is information
dissemination, though it need not be his or her sole occupation. A
requester within the category described in paragraph (f)(1)(iv) of this
section must also establish a particular urgency to inform the public
about the Government activity involved in the request--one that extends
beyond the public's right to know about Government activity generally.
The existence of numerous articles published on a given subject can be
helpful to establishing the requirement that there be an ``urgency to
inform'' the public on a topic. As a matter of administrative
discretion, a component may waive the formal certification requirement.
(4) Within ten calendar days of its receipt of a request for
expedited processing, the proper component shall decide whether to grant
it and shall notify the requester of the decision. Solely for purposes
of calculating the foregoing time limit, any request for expedited
processing shall always be considered received on the actual date of
receipt by the proper component. If a request for expedited processing
is granted, the request shall be given priority and processed as soon as
practicable, subject to Sec. 4.11(i). If a request for expedited
processing is denied, any appeal of that decision shall be acted on
expeditiously.
[66 FR 65632, Dec. 20, 2001, as amended at 79 FR 62559, Oct. 20, 2014;
83 FR 39591, Aug. 10, 2018; 88 FR 36470, June 5, 2023]
Sec. 4.7 Responses to requests.
(a) Acknowledgment of requests. Upon receipt of a request, a
component ordinarily shall send an acknowledgement to the requester
which shall provide an assigned tracking request number for further
reference and, if necessary, confirm whether the requester is willing to
pay fees. A component must send this acknowledgment if the request will
take longer than ten working days to process. In most cases, the
acknowledgment email, generated by the FOIA electronic case management
system, that is sent to requesters who provide an email address will
suffice for this requirement.
(b) Interim responses. If a request involves voluminous records or
requires searches in multiple locations, to the extent feasible, a
component shall provide the requester with interim responses. Such
responses may include records that are fully releasable or records that
have been withheld in part under one or more applicable FOIA exemptions
set forth at 5 U.S.C. 552(b). Bureaus will make reasonable efforts to
provide to requesters an estimated date when a determination will be
provided. An interim response is not a determination and appeal rights
need not be provided with the interim response.
(c) Determination--(1) Grants of requests. If a component makes a
determination to grant a request in whole or in part, it shall notify
the requester in writing of such determination.
(i) A component shall inform the requester:
(A) Of any fees charged under Sec. 4.11; and
(B) That the requester may contact the relevant FOIA Public Liaison
or FOIA contact for further assistance.
(ii) The component shall also disclose records to the requester
promptly upon payment of any applicable fees.
(iii) Records disclosed in part shall be marked or annotated to show
the applicable FOIA exemption(s) and the amount of information deleted,
unless doing so would harm an interest protected by an applicable
exemption. The location of the information deleted shall also be
indicated on the record, if feasible.
(2) Adverse determinations of requests. If a component makes an
adverse determination regarding a request, it shall notify the requester
of that determination in writing.
[[Page 30]]
(i) An adverse determination may be a denial of a request and
includes decisions that:
(A) The requested record is exempt, in whole or in part.
(B) The request does not reasonably describe the records sought and
the requester is unwilling to further clarify the request.
(C) The information requested is not a record subject to the FOIA.
(D) The requested record does not exist, cannot be located, or has
previously been destroyed.
(E) The requested record is not readily reproducible in the form or
format sought by the requester.
(ii) Adverse determinations may also include:
(A) Denials of requested fee category status.
(B) Denials of requests for fee waivers.
(C) Denials of requests for expedited processing.
(D) Denials of requests for reduction of fees.
(3) Content of denial. The denial letter shall be signed by an
official listed in Appendix B to this part (or a designee), and shall
include:
(i) The name and title or position of the person responsible for the
denial;
(ii) A brief statement of the reason(s) for the denial, including
any FOIA exemption(s) applied by the component in denying the request;
(iii) An estimate of the volume of any records or information
withheld, by providing the number of pages or some other reasonable form
of estimation. This estimate is not required if the volume is otherwise
indicated by deletions marked on records that are disclosed in part, or
if providing an estimate would harm an interest protected by an
applicable FOIA exemption;
(iv) A statement advising the requester of the right to seek dispute
resolution services from the Department FOIA Public Liaison, the
relevant component FOIA Public Liaison or FOIA contact, or OGIS; and
(v) A statement that the denial may be appealed under Sec. 4.10,
and a list of the requirements for filing an appeal set forth in Sec.
4.10(b).
(d) All responses shall be made subject to the provisions of Sec.
4.25(b)(2)(iv).
[83 FR 39591, Aug. 10, 2018, as amended at 86 FR 21934, Apr. 26, 2021;
88 FR 36471, June 5, 2023]
Sec. 4.8 Classified information.
In processing a request for information classified under Executive
Order 13526 or any other executive order concerning the classification
of records, the information shall be reviewed to determine whether it
should remain classified. Ordinarily the component or other Federal
agency that classified the information should conduct the review, except
that if a record contains information that has been derivatively
classified by a component because it contains information classified by
another component or agency, the component shall refer the
responsibility for responding to the request to the component or agency
that classified the underlying information. Information determined to no
longer require classification shall not be withheld on the basis of FOIA
exemption (b)(1) (5 U.S.C. 552(b)(1)), but should be reviewed to assess
whether any other FOIA exemption should be invoked. Appeals involving
classified information shall be processed in accordance with Sec.
4.10(c).
[79 FR 62560, Oct. 20, 2014]
Sec. 4.9 Confidential commercial information.
(a) Definitions. For the purposes of this section:
(1) Confidential commercial information means commercial or
financial information, obtained by the Department from a submitter,
which may be protected from disclosure under FOIA exemption (b)(4) (5
U.S.C. 552(b)(4)).
(2) Submitter means any person or entity outside the Federal
Government from which the Department obtains confidential commercial
information, directly or indirectly. The term includes U.S. or foreign
persons, U.S. or foreign corporations; state, local and tribal
governments; and foreign governments.
(b) Designation of confidential commercial information. A submitter
of confidential commercial information should be encouraged to use good-
faith
[[Page 31]]
efforts to designate, by appropriate markings, either at the time of
submission or at a reasonable time thereafter, any portions of its
submission that it considers to be protected from disclosure under FOIA
exemption (b)(4). These designations will expire ten years after the
date of the submission unless the submitter requests, and provides
justification for, a longer period.
(c) Notice to submitters. (1) A component shall provide a submitter
with prompt written notice of a FOIA request or administrative appeal
that seeks its confidential commercial information whenever required
under paragraph (d) of this section, except as provided in paragraph (g)
of this section, in order to give the submitter an opportunity under
paragraph (e) of this section to object to disclosure of any specified
portion of that information.
(2) Such written notice shall be sent via certified mail, return
receipt requested, or similar means.
(3) Where notification of a voluminous number of submitters is
required, such notification may be accomplished by posting or publishing
the notice in a place reasonably calculated to accomplish notification.
(4) The notice shall either describe the confidential commercial
information requested or include copies of the requested records or
portions of the records containing the information. If notification of a
large number of submitters is required, notification may be made by
posting or publishing the notice in a place reasonably likely to
accomplish notification, instead of sending individual notifications.
(d) When notice is required. Notice shall be given to the submitter
whenever:
(1) The submitter has designated the information in good faith as
protected from disclosure under FOIA exemption (b)(4); or
(2) The component has reason to believe that the information may be
protected from disclosure under FOIA exemption (b)(4), but has not yet
determined whether the information is protected from disclosure.
(e) Opportunity to object to disclosure. A component shall allow a
submitter seven working days (i.e., excluding Saturdays, Sundays, and
legal public holidays) from the date of receipt of the written notice
described in paragraph (c) of this section to provide the component with
a statement of any objection to disclosure. A FOIA Officer may extend
the comment period from seven to ten working days, if a submitter
requests an extension. The statement from a submitter must identify any
portions of the information the submitter requests to be withheld under
FOIA exemption (b)(4), and describe how each qualifies for protection
under the exemption: That is, why the information is a trade secret, or
commercial or financial information that is privileged or confidential.
If a submitter fails to respond to the notice within the time specified,
the submitter will be considered to have no objection to disclosure of
the information. Information a submitter provides under this paragraph
may itself be subject to disclosure under the FOIA.
(f) Notice of intent to disclose. A component shall consider a
submitter's objections and specific grounds under the FOIA for
nondisclosure in deciding whether to disclose confidential commercial
information. If a component decides to disclose confidential commercial
information over a submitter's objection, the component shall give the
submitter written notice via certified mail, return receipt requested,
or similar means, which shall include:
(1) A statement of reason(s) why the submitter's objections to
disclosure were not sustained;
(2) A description of the confidential commercial information to be
disclosed; and
(3) A statement that the component intends to disclose the
information seven working days, or ten working days if an extension is
granted, from the date the submitter receives the notice.
(g) Exceptions to notice requirements. The notice requirements of
paragraphs (c) and (f) of this section shall not apply if:
(1) The component determines that the information is exempt and will
be withheld under a FOIA exemption;
(2) The information has been lawfully published or has been
officially made available to the public;
[[Page 32]]
(3) Disclosure of the information is required by statute (other than
the FOIA) or by a regulation issued in accordance with Executive Order
12600; or
(4) The designation made by the submitter under paragraph (b) of
this section appears obviously frivolous, except that, in such a case,
the component shall provide the submitter written notice of any final
decision to disclose the information seven working days after the date
the submitter receives the notice.
(h) Notice to submitter of FOIA lawsuit. Whenever a requester files
a lawsuit seeking to compel the disclosure of confidential commercial
information, the component shall promptly notify the submitter. Where
notification of a voluminous number of submitters is required, such
notification may be accomplished by posting or publishing the notice in
a place reasonably calculated to accomplish notification.
(i) Corresponding notice to requester. Whenever a component provides
a submitter with notice and an opportunity to object to disclosure under
paragraph (c) of this section, the component shall notify the requester
that the request is being processed under the provisions of this
regulation and, as a consequence, there may be a delay in receiving a
response. The notice to the requester will not include any of the
specific information contained in the records being requested. Whenever
a submitter files a lawsuit seeking to prevent the disclosure of
confidential commercial information, the component shall notify the
requester of such action and, as a consequence, there may be further
delay in receiving a response.
[83 FR 39592, Aug. 10, 2018]
Sec. 4.10 Appeals from initial determinations or untimely delays.
(a)(1) If a request for records to a component other than the Office
of Inspector General is initially denied in whole or in part, or has not
been timely determined, or if a requester receives an adverse
determination regarding any other matter listed under this subpart (as
described in Sec. 4.7(c)), the requester may file an appeal. Appeals
can be submitted in writing or electronically, as described in paragraph
(b)(1) of this section. For requests filed on or after July 1, 2016, the
appeal must be received by the Office of the General Counsel during
normal business hours (8:30 a.m. to 5:00 p.m., Eastern Time, Monday
through Friday) within 90 calendar days of the date of the written
denial of the adverse determination or, if there has been no
determination, an appeal may be submitted any time after the due date of
the request, including the last extension under Sec. 4.6(d), of a
request due date. Written or electronic appeals arriving after normal
business hours will be deemed received on the next normal business day.
If the 90th calendar day falls on a Saturday, Sunday, or a legal public
holiday, an appeal received by 5:00 p.m., Eastern Time, the next
business day will be deemed timely. Appeals received after the 90-day
limit will not be considered.
(2) If a request for records to the Office of Inspector General is
initially denied in whole or in part, or has not been timely determined,
or if a requester receives an adverse determination regarding any other
matter listed under this subpart (as described in Sec. 4.7(c)), the
requester may file an appeal. Appeals can be submitted in writing or
electronically, as described in paragraph (b)(2) of this section. For
requests submitted on or after July 1, 2016, the appeal must be received
by the Office of Inspector General, Office of Counsel, during normal
business hours (8:30 a.m. to 5:00 p.m., Eastern Time, Monday through
Friday) within 90 calendar days of the date of the written denial of the
adverse determination or, if there has been no determination, an appeal
may be submitted any time after the due date, including the last
extension under Sec. 4.6(d), of the adverse determination. Written or
electronic appeals arriving after normal business hours will be deemed
received on the next normal business day. If the 90th calendar day falls
on a Saturday, Sunday, or a legal public holiday, an appeal received by
5:00 p.m., Eastern Time, the next business day will be deemed timely.
Appeals received after the 90-day limit will not be considered.
(b)(1) Appeals, other than appeals from requests made to the Office
of Inspector General, shall be decided by the
[[Page 33]]
Assistant General Counsel for Employment, Litigation, and Information
(AGC-ELI). Written appeals should be addressed to the Assistant General
Counsel for Employment, Litigation, and Information, at the U.S.
Department of Commerce, Office of the General Counsel, Room 5896, 1401
Constitution Avenue NW, Washington, DC 20230. For a written appeal, both
the letter and the appeal envelope should be clearly marked ``Freedom of
Information Act Appeal.'' Appeals may also be submitted electronically
by email to [email protected] or through the online case management
system. In all cases, the appeal (written or electronic) should include
a copy of the original request and initial denial, if any. All appeals
should include a statement of the reasons why the records requested
should be made available and why the adverse determination was in error.
No opportunity for personal appearance, oral argument or hearing on
appeal is provided. Upon receipt of an appeal, the AGC-ELI ordinarily
shall send an acknowledgement letter to the requester which shall
confirm receipt of the requester's appeal.
(2) Appeals of initial and untimely determinations by the OIG shall
be decided by the Counsel to the Inspector General, except that appeals
of records requests that were initially denied by the Counsel to the
Inspector General shall be decided by the Deputy Inspector General.
Written appeals should be addressed to the Counsel to the Inspector
General, or the Deputy Inspector General if the records were initially
denied by the Counsel to the Inspector General. The address of both is:
U.S. Department of Commerce, Office of the Inspector General, Office of
Counsel, Room 7898C, 1401 Constitution Avenue NW, Washington, DC 20230.
For a written appeal, both the letter and the appeal envelope should be
clearly marked ``Freedom of Information Act Appeal.'' Appeals may also
be submitted electronically by email to [email protected] or through the
online case management system. In all cases, the appeal (written or
electronic) should include a copy of the original request and initial
denial, if any. All appeals should include a statement of the reasons
why the records requested should be made available and why the adverse
determination was in error. No opportunity for personal appearance, oral
argument or hearing on appeal is provided. Upon receipt of an appeal,
the Counsel to the Inspector General, or the Deputy Inspector General if
the records were initially denied by the Counsel to the Inspector
General, ordinarily shall send an acknowledgement letter to the
requester which shall confirm receipt of the requester's appeal.
(c) Upon receipt of an appeal involving records initially denied on
the basis of FOIA exemption (b)(1), the records shall be forwarded to
the Deputy Assistant Secretary for Security (DAS) for a declassification
review. The DAS may overrule previous classification determinations in
whole or in part if continued protection in the interest of national
security is no longer required, or no longer required at the same level.
The DAS shall advise the AGC-ELI, the General Counsel, Counsel to the
Inspector General, or Deputy Inspector General, as appropriate, of his
or her decision.
(d) If an appeal is granted, the notification letter may include
documents to be released or the request may be referred back to the
component for further action consistent with the determination on the
appeal.
(e) If no determination on an appeal has been sent to the requester
within the twenty working day period specified in Sec. 4.6(b) or the
last extension thereof, the requester is deemed to have exhausted all
administrative remedies with respect to the request, giving rise to a
right of judicial review under 5 U.S.C. 552(a)(6)(C). If the requester
initiates a court action against the Department based on the provision
in this paragraph, the administrative appeal process may continue.
(f) The determination on an appeal shall be in writing and, when it
denies records in whole or in part, the letter to the requester shall
include:
(1) A brief explanation of the basis for the denial, including a
list of the applicable FOIA exemptions and a description of how they
apply;
(2) A statement that the decision is final for the Department;
(3) Notification that dispute resolution services are offered by the
Office
[[Page 34]]
of Government Information Services (OGIS) of the National Archives and
Records Administration as a non-exclusive alternative to litigation,
informing the requester that dispute resolution is a voluntary process,
and if the Department and requester agree to participate in the dispute
resolution services provided by OGIS, the Department will actively
engage as a partner to the process in an attempt to resolve the dispute.
(4) Notification that judicial review of the denial is available in
the district court of the United States in the district in which the
requester resides, or has his or her principal place of business, or in
which the agency records are located, or in the District of Columbia;
and
(5) The name and title or position of the official responsible for
denying the appeal.
[66 FR 65632, Dec. 20, 2001, as amended at 69 FR 49784, Aug. 12, 2004;
79 FR 62561, Oct. 20, 2014; 80 FR 70153, Nov. 13, 2015; 83 FR 39593,
Aug. 10, 2018; 88 FR 36471, June 5, 2023]
Sec. 4.11 Fees.
(a) In general. Components shall charge fees for processing requests
under the FOIA in accordance with paragraph (c) of this section, except
where fees are limited under paragraph (d) of this section or when a
waiver or reduction is granted under paragraph (l) of this section. A
component shall collect all applicable fees before processing a request
if a component determines that advance payment is required in accordance
with paragraphs (i)(2) and (i)(3) of this section. If advance payment of
fees is not required, a component shall collect all applicable fees
before sending copies of requested records to a requester. Requesters
must pay fees by check or money order made payable to the Treasury of
the United States.
(b) Definitions. For purposes of this section:
(1) Commercial use request means a request from or on behalf of a
person who seeks information for a use or purpose that furthers his or
her commercial, trade, or profit interests, which can include furthering
those interests through litigation. Components shall determine, whenever
reasonably possible, the use to which a requester will put the requested
records. If it appears that the requester will put the records to a
commercial use, or if a component has reasonable cause to doubt a
requester's asserted non-commercial use, the component shall provide the
requester a reasonable opportunity to submit further clarification.
(2) Direct costs means those expenses a component incurs in
searching for and duplicating (and, in the case of commercial use
requests, reviewing) records to respond to a FOIA request. The hourly
processing fees for calculating direct costs for Department or component
personnel searching for, duplication, and reviewing records are
reflected in Table 1. Note that the 16% overhead has already been
included in the hourly rates identified in Table 1.
Table 1--FOIA Hourly Processing Fees
------------------------------------------------------------------------
Type Grade Hourly rate
------------------------------------------------------------------------
Administrative................. E-9/GS-8 and below..... $28
Professional................... Contractor/O-1 to O-6/W- 56
1 to W-5/GS-9 to GS-15.
Executive...................... O-7 and above and 128
Senior Executive
Service.
------------------------------------------------------------------------
(3) Duplication means the making of a copy of a record, or of the
information contained in it, necessary to respond to a FOIA request.
Copies may take the form of paper, microform, audiovisual materials, or
electronic records, among others. A component shall honor a requester's
specified preference of form or format of disclosure if the record is
readily reproducible with reasonable efforts in the requested form or
format.
(4) Educational institution is any school that operates a program of
scholarly research. A requester in this fee category must show that the
request is made in connection with his or her role at the educational
institution. Educational institutions may include a
[[Page 35]]
preschool, a public or private elementary or secondary school, an
institution of undergraduate higher education, an institution of
graduate higher education, an institution of professional education, or
an institution of vocational education A Department component may seek
verification from the requester that the request is in furtherance of
scholarly research and agencies will advise requesters of their
placement in this category. Verification may be supported by a letter
from a teacher, instructor, or professor written on the institution's
letterhead or from an institutional email address and in which the body
of the email outlines the research to be conducted. Student requests may
be supported by evidence that the records are sought for the student's
academic research purposes, for example, through evidence of a class
assignment or a letter from a teacher, instructor, or professor. A
component's decision to grant a requester educational institution status
will be made on a case-by-case basis based upon the requester's intended
use of the material.
Example 1. A request from a professor or a student of geology at a
university for records relating to soil erosion, written on letterhead
of the Department of Geology, would be presumed to be from an
educational institution.
Example 2. A request from the same professor or student of geology
seeking drug information from the Food and Drug Administration in
furtherance of a murder mystery he is writing would not be presumed to
be an institutional request, regardless of whether it was written on
institutional letterhead.
Example 3. A student who makes a request in furtherance of their
coursework or other school-sponsored activities and provides a copy of a
course syllabus or other reasonable documentation to indicate the
research purpose for the request, would qualify as part of this fee
category.
(5) Noncommercial scientific institution means an institution that
is not operated on a ``commercial'' basis, as that term is defined in
paragraph (b)(1) of this section, and that is operated solely for the
purpose of conducting scientific research, the results of which are not
intended to promote any particular product or industry. To be in this
category, a requester must show that the request is authorized by and is
made under the auspices of a qualifying institution and that the records
are sought to further scientific research rather than for a commercial
use.
(6) Representative of the news media, or news media requester, means
any person or entity that actively gathers information of potential
interest to a segment of the public, uses its editorial skills to turn
the raw materials into a distinct work and distributes that work to an
audience. The term ``news'' means information that is about current
events or that would be of current interest to the public. Examples of
news-media entities are television or radio stations broadcasting to the
public at-large and publishers of periodicals that disseminate ``news''
and make their products available through a variety of means to the
general public including news organizations that disseminate solely on
the internet. To be in this category, a requester must not be seeking
the requested records for a commercial use. A request for records that
supports the news-dissemination function of the requester shall not be
considered to be for a commercial use. A freelance journalist shall be
regarded as working for a news-media entity if the journalist can
demonstrate a solid basis for expecting publication through that entity,
whether or not the journalist is actually employed by the entity. A
publication contract would be the clearest proof, but components shall
also look to the past publication record of a requester in making this
determination. A component's decision to grant a requester media status
will be made on a case-by-case basis based upon the requester's intended
use of the material. The mere fact that a person or entity has been
classified as news media with respect to one request does not mean they
will be so considered as news media with respect to any other requests.
(7) Review means the examination of a record located in response to
a request in order to determine whether any portion of it is exempt from
disclosure. Review time includes processing any record for disclosure,
such as doing all that is necessary to prepare the record for
disclosure, including the process of redacting it and marking any
applicable exemptions. Review
[[Page 36]]
costs are recoverable even if a record ultimately is not disclosed.
Review time includes time spent obtaining and considering any formal
objection to disclosure made by a submitter under Sec. 4.9, but does
not include time spent resolving general legal or policy issues
regarding the application of exemptions.
(8) Search means the process of looking for and retrieving records
or information responsive to a request. It includes identification of
information within records and also includes reasonable efforts to
locate and retrieve information from records maintained in electronic
form or format. Components shall ensure that searches are done in the
most efficient and least expensive manner reasonably possible.
(c) Fees. In responding to FOIA requests, components shall charge
the fees summarized in chart form in paragraphs (c)(1) and (c)(2) of
this section and explained in paragraphs (c)(3) through (c)(5) of this
section, unless a waiver or reduction of fees has been granted under
paragraph (l) of this section.
(1) The four categories and chargeable fees are:
------------------------------------------------------------------------
Category Chargeable fees
------------------------------------------------------------------------
(i) Commercial Use Requesters.......... Search, Review, and
Duplication.
(ii) Educational and Non-commercial Duplication (excluding the cost
Scientific Institution Requesters. of the first 100 pages).
(iii) Representatives of the News Media Duplication (excluding the cost
of the first 100 pages).
(iv) All Other Requesters.............. Search and Duplication
(excluding the cost of the
first 2 hours of search and
100 pages).
------------------------------------------------------------------------
(2) Uniform fee schedule.
------------------------------------------------------------------------
Service Rate
------------------------------------------------------------------------
(i) Manual search...................... Hourly rate from Table 1 of
employee involved.
(ii) Computerized search............... Actual direct cost, including
operator time, using the
hourly rate from Table 1, of
the employee involved.
(iii) Review of records................ Hourly rate from Table 1 of
employee involved.
(iv) Duplication of records:
(A) Paper copy reproduction........ $.08 per page.
(B) Other reproduction (e.g., Actual direct cost, including
converting paper into an electronic operator time, using the
format (e.g., scanning), computer disk hourly rate from Table 1, of
or printout, or other electronically- the employee involved.
formatted reproduction (e.g.,
uploading records made available to
the requester)).
------------------------------------------------------------------------
(3) Search. (i) Search fees shall be charged for all requests--other
than requests made by educational institutions, noncommercial scientific
institutions, or representatives of the news media--subject to the
limitations of paragraph (d) of this section. Components shall charge
for time spent searching even if they do not locate any responsive
records or if they withhold any records located as entirely exempt from
disclosure. Search fees shall be the direct costs of conducting the
search by the involved employees.
(ii) For computer searches of records, requesters will be charged
the direct costs of conducting the search, although certain requesters
(as provided in paragraph (d)(1) of this section) will be charged no
search fee and certain other requesters (as provided in paragraph (d)(3)
of this section) are entitled to the cost equivalent of two hours of
manual search time without charge. These direct costs will include the
costs of the operator/programmer FOIA hourly processing rate
apportionable to the search and any other tangible direct costs
associated with a computer search.
(4) Duplication. Duplication fees shall be charged to all
requesters, subject to the limitations of paragraph (d) of this section.
A component shall honor a requester's preference for receiving a record
in a particular form or format where it is readily producible by the
component in the form or format requested. For either a photocopy or a
computer-generated printout of a
[[Page 37]]
record (no more than one copy of which need be supplied), the fee shall
be $.08 per page. Requesters may reduce costs by specifying double-sided
duplication, except where this is technically not feasible. For
electronic forms of duplication, other than a computer-generated
printout, components will charge the direct costs of that duplication.
Such direct costs will include the costs of the requested electronic
medium on which the copy is to be made and the actual operator time and
computer resource usage required to produce the copy, to the extent they
can be determined.
(5) Review. Review fees shall be charged to requesters who make a
commercial use request. Review fees shall be charged only for the
initial record review, in which a component determines whether an
exemption applies to a particular record at the initial request level.
No charge shall be imposed for review at the administrative appeal level
for an exemption already applied. However, records withheld under an
exemption that is subsequently determined not to apply may be reviewed
again to determine whether any other exemption not previously considered
applies, and the costs of that review are chargeable. Review fees shall
be the direct costs of conducting the review by the involved employees.
(d) Limitations on charging fees. (1) No search fees shall be
charged for requests from educational institutions, non-commercial
scientific institutions, or representatives of the news media.
(2) No search fee or review fee shall be charged for a quarter-hour
period unless more than half of that period is required for search or
review.
(3) Except for requesters seeking records for a commercial use,
components shall provide without charge:
(i) The first 100 pages of duplication (or the cost equivalent); and
(ii) The first two hours of search (or the cost equivalent).
(4) If a total fee calculated under paragraph (c) of this section is
$20.00 or less for any request, no fee shall be charged. If such total
fee is more than $20.00, the full amount of such fee shall be charged.
(5) The provisions of paragraphs (d) (3) and (4) of this section
work together. This means that for requesters other than those seeking
records for a commercial use, no fee shall be charged unless the cost of
search in excess of two hours plus the cost of duplication in excess of
100 pages totals more than $20.00.
(6) No search fees shall be charged to a FOIA requester when a
component does not comply with the statutory time limits at 5 U.S.C.
552(a)(6) in which to respond to a request (this section only applies to
FOIA requests, not appeals), except as described in paragraph (d)(8) of
this section.
(7) No duplication fees shall be charged to requesters in the fee
category of a representative of the news media or an educational or
noncommercial scientific institution when a component does not comply
with the statutory time limits at 5 U.S.C. 552(a)(6) in which to respond
to a request, except as described in paragraph (d)(8) of this section.
(8)(i) When a Department component determines that unusual
circumstances, as those terms are defined in Sec. 4.6(d)(2), apply to
the processing of the request, and provides timely written notice to the
requester in accordance with the FOIA, then the Department component is
granted an additional ten days until the fee restrictions in paragraphs
(d)(6) and (7) of this section apply.
(ii) The fee restrictions in paragraphs (d)(6) and (7) of this
section do not apply:
(A) When a Department component determines that unusual
circumstances, as those terms are defined in Sec. 4.6(d)(2), apply to
the processing of the request;
(B) More than 5,000 pages are necessary to respond to the request;
(C) The Department component provides timely written notice to the
requester in accordance with the FOIA; and
(D) The Department component has discussed with the requester (or
made three good faith attempts to do so) on how the requester can
effectively limit the scope of the request.
(e) Notice of anticipated fees in excess of $20.00. (1) When a
component determines or estimates that the fees for processing a FOIA
request will total
[[Page 38]]
more than $20.00 or total more than the amount the requester indicated a
willingness to pay, the component shall notify the requester of the
actual or estimated amount of the fees, unless the requester has stated
in writing a willingness to pay fees as high as those anticipated. If
only a portion of the fee can be estimated readily, the component shall
advise the requester that the estimated fee may be only a portion of the
total fee. A notice under this paragraph shall offer the requester an
opportunity to discuss the matter with Departmental personnel in order
to modify the request in an effort to meet the requester's needs at a
lower cost. The requester may also contact the Department FOIA Public
Liaison, the relevant component's FOIA Public Liaison or FOIA contact,
or OGIS for further assistance, or file an administrative appeal of the
fee estimate amount in accordance with Sec. 4.10.
(2) When a requester has been notified that the actual or estimated
fees will amount to more than $20.00, or amount to more than the amount
the requester indicated a willingness to pay, the component will do no
further work on the request until the requester agrees in writing to pay
the actual or estimated total fee. The component will toll the
processing of the request when it notifies the requester of the actual
or estimated amount of fees and this time will be excluded from the
twenty (20) working day time limit (as specified in Sec. 4.6(b)). The
requester's agreement to pay fees must be made in writing, must
designate an exact dollar amount the requester is willing to pay, and
must be received within 30 calendar days from the date of the
notification of the fee estimate. If the requester fails to submit an
agreement to pay the anticipated fees within 30 calendar days from the
date of the component's fee notice, the component will presume that the
requester is no longer interested and notify the requester that the
request will be closed.
(f) Charges for other services. Apart from the other provisions of
this section, if a component decides, as a matter of administrative
discretion, to comply with a request for special services, the component
shall charge the direct cost of providing them. Such services could
include certifying that records are true copies or sending records by
other than ordinary mail.
(g) Charging interest. Components shall charge interest on any
unpaid bill starting on the 31st calendar day following the date of
billing the requester. Interest charges shall be assessed at the rate
provided in 31 U.S.C. 3717 and accrue from the date of the billing until
the component receives payment. Components shall take all steps
authorized by the Debt Collection Act of 1982, as amended by the Debt
Collection Improvement Act of 1996, to effect payment, including offset,
disclosure to consumer reporting agencies, and use of collection
agencies.
(h) Aggregating requests. If a component reasonably believes that a
requester or a group of requesters acting together is attempting to
divide a request into a series of requests for the purpose of avoiding
fees, the component may aggregate those requests and charge accordingly.
Among the factors a component shall consider in deciding whether to
aggregate are the closeness in time between the component's receipt of
the requests, and the relatedness of the matters about which the
requests are made. A component may generally presume that multiple
requests that involve related matters made by the same requester or a
closely related group of requesters within a 30 calendar day period have
been made in order to avoid fees. If requests are separated by a longer
period, a component shall aggregate them only if a solid basis exists
for determining that aggregation is warranted under all the
circumstances involved. Multiple requests involving unrelated matters
shall not be aggregated.
(i) Advance payments. (1) For requests other than those described in
paragraphs (i)(2) and (3) of this section, a component shall not require
the requester to make an advance payment (i.e., a payment made before a
component begins to process or continues work on a request). Payment
owed for work already completed (i.e., a pre-payment before copies of
responsive records are sent to a requester) is not an advance payment.
[[Page 39]]
(2) When a component determines or estimates that the total fee for
processing a FOIA request will be $250.00 or more, the component shall
notify the requester of the actual or estimated fee and require the
requester to make an advance payment of the entire anticipated fee
before beginning to process the request. A notice under this paragraph
shall offer the requester an opportunity to discuss the matter with
Departmental personnel in order to modify the request in an effort to
meet the requester's needs at a lower cost.
(3) When a requester has previously failed to pay a properly charged
FOIA fee to any component or other Federal agency within 30 calendar
days of the date of billing, the component shall notify the requester
that he or she is required to pay the full amount due, plus any
applicable interest, and to make an advance payment of the full amount
of any anticipated fee, before the component begins to process a new
request or continues to process a pending request from that requester. A
notice under this paragraph shall offer the requester an opportunity to
discuss the matter with Departmental personnel in order to modify the
request in an effort to meet the requester's needs at a lower cost.
(4) When the component requires advance payment or payment due under
paragraphs (i)(2) and (i)(3) of this section, the component will not
further process the request until the required payment is made. The
component will toll the processing of the request when it notifies the
requester of the advanced payment due and this time will be excluded
from the twenty (20) working day time limit (as specified in Sec.
4.6(b)). If the requester does not pay the advance payment within 30
calendar days from the date of the component's fee notice, the component
will presume that the requester is no longer interested and notify the
requester that the request will be closed.
(j) Tolling. When necessary for the component to clarify issues
regarding fee assessment with the FOIA requester, the time limit for
responding to the FOIA request is tolled until the component resolves
such issues with the requester. The tolling period is from the day a
requester was contacted through the working day (i.e., excluding
Saturdays, Sundays, and legal public holidays) on which a response was
received by the responsible component.
(k) Other statutes specifically providing for fees. The fee schedule
of this section does not apply to fees charged under any statute (except
for the FOIA) that specifically requires an agency to set and collect
fees for particular types of records. If records responsive to requests
are maintained for distribution by agencies operating such statutorily
based fee schedule programs, components shall inform requesters how to
obtain records from those sources. Provision of such records is not
handled under the FOIA.
(l) Requirements for waiver or reduction of fees. (1) Records
responsive to a request will be furnished without charge, or at a charge
reduced below that established under paragraph (c) of this section, if
the requester asks for such a waiver in writing and the responsible
component determines, after consideration of information provided by the
requester, that the requester has demonstrated that:
(i) Disclosure of the requested information is in the public
interest because it is likely to contribute significantly to public
understanding of the operations or activities of the Government; and
(ii) Disclosure of the information is not primarily in the
commercial interest of the requester.
(2) To determine whether the first fee waiver requirement is met,
components shall consider the following factors:
(i) The subject of the request: whether the subject of the requested
records concerns the operations or activities of the Government. The
subject of the requested records must concern identifiable operations or
activities of the Federal Government, with a connection that is direct
and clear, not remote or attenuated.
(ii) The informative value of the information to be disclosed:
whether the disclosure is ``likely to contribute'' to an understanding
of Government operations or activities. The disclosable portions of the
requested records must be meaningfully informative about Government
operations or activities in order to be ``likely to contribute'' to an
[[Page 40]]
increased public understanding of those operations or activities. The
disclosure of information that already is in the public domain, in
either a duplicative or a substantially identical form, would not be
likely to contribute to such understanding.
(iii) The contribution to an understanding of the subject by the
public likely to result from disclosure: Whether disclosure of the
requested information will contribute to the understanding of a
reasonably broad audience of persons interested in the subject, as
opposed to the individual understanding of the requester. A requester's
expertise in the subject area and ability and intention to effectively
convey information to the public shall be considered. It shall be
presumed that a representative of the news media satisfies this
consideration.
(iv) The significance of the contribution to public understanding:
whether the disclosure is likely to contribute ``significantly'' to
public understanding of Government operations or activities. The
public's understanding of the subject in question prior to the
disclosure must be significantly enhanced by the disclosure.
(3) To determine whether the second fee waiver requirement (i.e.,
that disclosure is not primarily in the commercial interest of the
requester) is met, components shall consider the following factors:
(i) The existence and magnitude of a commercial interest: whether
the requester has a commercial interest that would be furthered by the
requested disclosure. Components shall consider any commercial interest
of the requester (with reference to the definition of ``commercial use
request'' in paragraph (b)(1) of this section), or of any person on
whose behalf the requester may be acting, that would be furthered by the
requested disclosure. Requesters shall be given an opportunity to
provide explanatory information regarding this consideration.
(ii) The primary interest in disclosure: Whether any identified
commercial interest of the requester is sufficiently great, in
comparison with the public interest in disclosure, that disclosure is
``primarily in the commercial interest of the requester.'' A fee waiver
or reduction is justified if the public interest standard (paragraph
(l)(1)(i) of this section) is satisfied and the public interest is
greater than any identified commercial interest in disclosure.
Components ordinarily shall presume that if a news media requester has
satisfied the public interest standard, the public interest is the
primary interest served by disclosure to that requester. Disclosure to
data brokers or others who merely compile and market Government
information for direct economic return shall not be presumed to
primarily serve the public interest.
(4) If only some of the records to be released satisfy the
requirements for a fee waiver, a waiver shall be granted for those
records.
(5) Requests for the waiver or reduction of fees should address the
factors listed in paragraphs (l)(2) and (3) of this section, insofar as
they apply to each request.
[66 FR 65632, Dec. 20, 2001, as amended at 79 FR 62562, Oct. 20, 2014;
83 FR 39594, Aug. 10, 2018; 88 FR 36471, June 5, 2023]
Subpart B_Privacy Act
Sec. 4.21 Purpose and scope.
(a) This subpart establishes policies and procedures for
implementing the Privacy Act of 1974, as amended (5 U.S.C. 552a). The
main objectives of the subpart are to facilitate full exercise of rights
conferred on individuals under the Act, and to protect the privacy of
individuals on whom the Department maintains records in systems of
records under the Act.
(b) The Department shall act promptly and in accordance with the Act
upon receipt of any inquiry, request or appeal from a citizen of the
United States or an alien lawfully admitted for permanent residence into
the United States, regardless of the individual's age. Further, the
Department shall maintain only such information on individuals as is
relevant and necessary to the performance of its lawful functions;
maintain that information with such accuracy, relevancy, timeliness, and
completeness as is reasonably necessary to assure fairness in
determinations made by the Department about the individual; obtain
information
[[Page 41]]
from the individual to the extent practicable; and take every reasonable
step to protect that information from unwarranted disclosure. The
Department shall maintain no record describing how an individual
exercises rights guaranteed by the First Amendment unless expressly
authorized to do so by statute or by the individual about whom the
record is maintained, or unless to do so is pertinent to and within the
scope of an authorized law enforcement activity. An individual's name
and address shall not be sold or rented by the Department unless such
action is specifically authorized by law.
(c) This subpart applies to all components of the Department.
Components may promulgate supplementary orders and rules not
inconsistent with this subpart.
(d) The Assistant Secretary for Administration is delegated
responsibility for maintaining this subpart, for issuing such orders and
directives internal to the Department as are necessary for full
compliance with the Act, and for publishing all required notices
concerning systems of records.
(e) Matters outside the scope of this subpart include:
(1) Requests for records that do not pertain to the requester, or to
the individual about whom the request is made if the requester is the
parent or guardian of the individual;
(2) Requests involving information pertaining to an individual that
is in a record or file but not within the scope of a system of records
notice published in the Federal Register;
(3) Requests to correct a record if a grievance procedure is
available to the individual either by regulation or through a provision
in a collective bargaining agreement with the Department or a component
of the Department, and the individual has initiated, or expressed in
writing the intention of initiating, such a grievance procedure; and
(4) Requests for employee-employer services and counseling that were
routinely granted prior to enactment of the Act, including, but not
limited to, test calculations of retirement benefits, explanations of
health and life insurance programs, and explanations of tax withholding
options.
(f) Any request for records that pertains to the requester, or to
the individual about whom the request is made if the requester is the
parent or guardian of the individual, shall be processed under the Act
and this subpart and under the Freedom of Information Act and the
Department's implementing regulations at subpart A of this part,
regardless whether the Act or the Freedom of Information Act is
mentioned in the request.
Sec. 4.22 Definitions.
(a) All terms used in this subpart which are defined in 5 U.S.C.
552a shall have the same meaning herein.
(b) As used in this subpart:
(1) Act means the ``Privacy Act of 1974, as amended (5 U.S.C.
552a)''.
(2) Appeal means a request by an individual to review and reverse an
initial denial of a request from that individual for correction or
amendment.
(3) Component means any office, division, bureau or other unit of
the Department listed in Appendix A to this part (except that a regional
office of a larger office or other unit does not constitute a separate
component).
(4) Department means the Department of Commerce.
(5) Inquiry means either a request for general information regarding
the Act and this subpart or a request from an individual (or that
individual's parent or guardian) that the Department determine whether
it has any record in a system of records that pertains to that
individual.
(6) Person means any human being and also shall include, but is not
limited to, corporations, associations, partnerships, trustees,
receivers, personal representatives, and public or private
organizations.
(7) Privacy Act Officer means those officials, identified in
Appendix B to this part, who are authorized to receive and act upon
inquiries, requests for access, and requests for correction or
amendment.
(8) Request for access means a request from an individual or an
individual's parent or guardian to see a record pertaining to that
individual in a particular system of records.
(9) Request for correction or amendment means a request from an
individual or
[[Page 42]]
an individual's parent or guardian that the Department change (by
correction, amendment, addition or deletion) a particular record
pertaining to that individual in a system of records.
(10) Un-redacted SSN Mailed Documents Listing (USMDL) means the
Department approved list, as posted at www.commerce.gov/privacy,
designating those documents for which the inclusion of SSN is determined
to be necessary to fulfill a compelling Department business need when
the documents are requested by individuals outside the Department or
other Federal agencies, as determined jointly by the Senior Agency
Official for Privacy and the Departmental Privacy Act Officer.
[66 FR 65632, Dec. 20, 2001, as amended at 86 FR 21935, Apr. 26, 2021]
Sec. 4.23 Procedures for making inquiries.
(a) Any individual, regardless of age, who is a citizen of the
United States or an alien lawfully admitted for permanent residence into
the United States may submit an inquiry to the Department. The inquiry
should be made either in person or by mail addressed to the appropriate
component identified in Appendix A to this part or to the official
identified in the notification procedures paragraph of the systems of
records notice published in the Federal Register. \2\ If an individual
believes the Department maintains a record pertaining to him or her but
does not know which system of records might contain such a record and/or
which component of the Department maintains the system of records,
assistance in person or by mail will be provided at the first address
listed in Appendix A to this part.
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\2\ The United States Patent and Trademark Office (USPTO), which is
established as an agency of the United States within the Department of
Commerce, operates under its own PA regulations at 37 CFR part 102,
subpart B. Accordingly, requests concerning records maintained by the
USPTO should be sent directly to the USPTO.
---------------------------------------------------------------------------
(b) Inquiries submitted by mail should include the words ``PRIVACY
ACT INQUIRY'' in capital letters at the top of the letter and on the
face of the envelope. If the inquiry is for general information
regarding the Act and this subpart, no particular information is
required. The Department reserves the right to require compliance with
the identification procedures appearing at Sec. 4.24(d). If the inquiry
is a request that the Department determine whether it has a record
pertaining to the individual, the following information should be
submitted:
(1) Name of individual whose record is sought;
(2) Statement that individual whose record is sought is either a
U.S. citizen or an alien lawfully admitted for permanent residence;
(3) Identifying data that will help locate the record (for example,
maiden name, occupational license number, period or place of employment,
etc.);
(4) Record sought, by description and by record system name, if
known;
(5) Action requested (that is, sending information on how to
exercise rights under the Act; determining whether requested record
exists; gaining access to requested record; or obtaining copy of
requested record);
(6) Copy of court guardianship order or minor's birth certificate,
as provided in Sec. 4.24(d)(3), but only if requester is guardian or
parent of individual whose record is sought;
(7) Requester's name (printed), signature, address, and (optional)
telephone number;
(8) Date; and,
(9) Certification of request by notary or other official, but only
if
(i) Request is for notification that requested record exists, for
access to requested record, or for copy of requested record;
(ii) Record is not available to any person under 5 U.S.C. 552; and
(iii) Requester does not appear before an employee of the Department
for verification of identity.
(c) Any inquiry which is not addressed as specified in paragraph (a)
of this section or which is not marked as specified in paragraph (b) of
this section will be so addressed and marked by Department personnel and
forwarded immediately to the responsible Privacy Act Officer. An inquiry
which is not properly addressed by the individual will not be deemed to
have been ``received'' for purposes of measuring
[[Page 43]]
the time period for response until actual receipt by the Privacy Act
Officer. In each instance when an inquiry so forwarded is received, the
Privacy Act Officer shall notify the individual that his or her inquiry
was improperly addressed and the date the inquiry was received at the
proper address.
(d)(1) Each inquiry received shall be acted upon promptly by the
responsible Privacy Act Officer. Every effort will be made to respond
within ten working days (i.e., excluding Saturdays, Sundays and legal
public holidays) of the date of receipt at the proper address. If a
response cannot be made within ten working days, the Privacy Act Officer
shall send an acknowledgment during that period providing information on
the status of the inquiry and asking for such further information as may
be necessary to process the inquiry. The first correspondence sent by
the Privacy Act Officer to the requester shall contain the Department's
control number assigned to the request, as well as a statement that the
requester should use that number in all future contacts with the
Department. The Department shall use that control number in all
subsequent correspondence.
(2) If the Privacy Act Officer fails to send an acknowledgment
within ten working days, as provided in paragraph (d)(1) of this
section, the requester may ask the Assistant General Counsel for
Litigation, Employment, and Oversight to take corrective action. No
failure of a Privacy Act Officer to send an acknowledgment shall confer
administrative finality for purposes of judicial review.
(e) An individual shall not be required to state a reason for or
otherwise justify his or her inquiry.
(f) Special note should be taken that certain agencies are
responsible for publishing notices of systems of records having
Government-wide application to other agencies, including the Department.
The agencies known to be publishing these general notices and the types
of records covered therein appear in Appendix C to this part. These
general notices do not identify the Privacy Act Officers in the
Department to whom inquiries should be presented or mailed. The
provisions of this section, and particularly paragraph (a) of this
section, should be followed in making inquiries with respect to such
records. Such records in the Department are subject to the provisions of
this part to the extent indicated in Appendix C to this part. The
exemptions, if any, determined by the agency publishing a general notice
shall be invoked and applied by the Department after consultation, as
necessary, with that other agency.
Sec. 4.24 Procedures for making requests for records.
(a) Any individual, regardless of age, who is a citizen of the
United States or an alien lawfully admitted for permanent residence into
the United States may submit a request to the Department for access to
records. The request should be made either in person or by mail
addressed to the appropriate office listed in Appendix A to this part.
(b) Requests submitted by mail should include the words ``PRIVACY
ACT REQUEST'' in capital letters at the top of the letter and on the
face of the envelope. Any request which is not addressed as specified in
paragraph (a) of this section or which is not marked as specified in
this paragraph will be so addressed and marked by Department personnel
and forwarded immediately to the responsible Privacy Act Officer. A
request which is not properly addressed by the individual will not be
deemed to have been ``received'' for purposes of measuring time periods
for response until actual receipt by the Privacy Act Officer. In each
instance when a request so forwarded is received, the Privacy Act
Officer shall notify the individual that his or her request was
improperly addressed and the date the request was received at the proper
address.
(c) If the request follows an inquiry under Sec. 4.23 in connection
with which the individual's identity was established by the Department,
the individual need only indicate the record to which access is sought,
provide the Department control number assigned to the request, and sign
and date the request. If the request is not preceded by an inquiry under
Sec. 4.23, the procedures of this section should be followed.
[[Page 44]]
(d) The requirements for identification of individuals seeking
access to records are:
(1) In person. Each individual making a request in person shall be
required to present satisfactory proof of identity. The means of proof,
in the order of preference and priority, are:
(i) A document bearing the individual's photograph (for example,
driver's license, passport or military or civilian identification card);
(ii) A document, preferably issued for participation in a Federally-
sponsored program, bearing the individual's signature (for example,
unemployment insurance book, employer's identification card, national
credit card, and professional, craft or union membership card); and,
(iii) A document bearing neither the photograph nor the signature of
the individual, preferably issued for participation in a Federally-
sponsored program (for example, Medicaid card). If the individual can
provide no suitable documentation of identity, the Department will
require a signed statement asserting the individual's identity and
stipulating that the individual understands the penalty provision of 5
U.S.C. 552a(i)(3) recited in Sec. 4.32(a). In order to avoid any
unwarranted disclosure of an individual's records, the Department
reserves the right to determine the adequacy of proof of identity
offered by any individual, particularly if the request involves a
sensitive record.
(2) Not in person. If the individual making a request does not
appear in person before a Privacy Act Officer or other employee
authorized to determine identity, then identity must be determined by:
(i) A certification of a notary public or equivalent officer
empowered to administer oaths must accompany the request under the
circumstances prescribed in Sec. 4.23(b)(9). The certification in or
attached to the letter must be substantially in accordance with the
following text:
City of ____ County of ____. (Name of individual), who affixed (his)
(her) signature below in my presence, came before me, a (title), in and
for the aforesaid County and State, this __ day of __, 20_, and
established (his) (her) identity to my satisfaction. My commission
expires ____.
Signature: ______.; or
(ii) Statement of identity made under 28 U.S.C. 1746, a law that
permits statements to be made under penalty of perjury as a substitute
for notarization.
(3) Parents of minors and legal guardians. An individual acting as
the parent of a minor or the legal guardian of the individual to whom a
record pertains shall establish his or her personal identity in the same
manner prescribed in either paragraph (d)(1) or (d)(2) of this section.
In addition, such other individual shall establish his or her identity
in the representative capacity of parent or legal guardian. In the case
of the parent of a minor, the proof of identity shall be a certified or
authenticated copy of the minor's birth certificate. In the case of a
legal guardian of an individual who has been declared incompetent due to
physical or mental incapacity or age by a court of competent
jurisdiction, the proof of identity shall be a certified or
authenticated copy of the court's order. For purposes of the Act, a
parent or legal guardian may represent only a living individual, not a
decedent. A parent or legal guardian may be accompanied during personal
access to a record by another individual, provided the provisions of
Sec. 4.25(f) are satisfied.
(e) If the provisions of this subpart are alleged to impede an
individual in exercising his or her right to access, the Department will
consider, from an individual making a request, alternative suggestions
regarding proof of identity and access to records.
(f) An individual shall not be required to state a reason for or
otherwise justify his or her request for access to a record.
[66 FR 65632, Dec. 20, 2001, as amended at 73 FR 10381, Feb. 27, 2008]
Sec. 4.25 Disclosure of requested records to individuals.
(a)(1) The responsible Privacy Act Officer shall act promptly upon
each request. Every effort will be made to respond within ten working
days (i.e., excluding Saturdays, Sundays and legal public holidays) of
the date of receipt. If a response cannot be made within ten working
days due to unusual circumstances, the Privacy Act Officer shall send an
acknowledgment during
[[Page 45]]
that period providing information on the status of the request and
asking for any further information that may be necessary to process the
request. ``Unusual circumstances'' shall include circumstances in which:
(i) A search for and collection of requested records from inactive
storage, field facilities or other establishments is required;
(ii) A voluminous amount of data is involved;
(iii) Information on other individuals must be separated or expunged
from the particular record; or
(iv) Consultations with other agencies having a substantial interest
in the determination of the request are necessary.
(2) If the Privacy Act Officer fails to send an acknowledgment
within ten working days, as provided in paragraph (a)(1) of this
section, the requester may ask the Assistant General Counsel for
Litigation, Employment, and Oversight to take corrective action. No
failure of a Privacy Act Officer to send an acknowledgment shall confer
administrative finality for purposes of judicial review.
(3) Inclusion of SSNs on responsive documents.
(i) The Department shall redact SSNs from responsive documents
provided to requesters where feasible. Where full redaction is not
feasible, partial redaction to create a truncated SSN shall be preferred
to no redaction. The following conditions must be met for the inclusion
of an unredacted (full) SSN or partially redacted (truncated) SSN on a
responsive document:
(ii) The inclusion of the full SSN or truncated SSN of an individual
must be required or authorized by law,
(iii) The inclusion of the full SSN or truncated SSN of an
individual must be determined by the Senior Agency Official for Privacy
and Departmental Privacy Act Officer to be necessary to fulfill a
compelling Department business need; and
(iv) The full SSN of an individual may be included only on documents
listed on the USMDL.
(4) The following requirements apply when the Department mails or
delivers responsive documents containing SSNs or truncated SSNs:
(i) The full SSN of an individual may be included only on documents
listed on the USMDL.
(ii) For documents that are listed on the USMDL and that include the
full SSN of an individual, the signature of the recipient is required
upon delivery.
(iii) For documents that include the truncated form of the SSN of an
individual, the signature of the recipient is required upon delivery.
(iv) The full SSN, the truncated SSN, any part of the SSN of an
individual must not be visible from the outside of the envelope or
package.
(b) Grant of access: (1) Notification. An individual shall be
granted access to a record pertaining to him or her, unless the
provisions of paragraph (g)(1) of this section apply. The Privacy Act
Officer shall notify the individual of a determination to grant access,
and provide the following information:
(i) The methods of access, as set forth in paragraph (b)(2) of this
section;
(ii) The place at which the record may be inspected;
(iii) The earliest date on which the record may be inspected and the
period of time that the records will remain available for inspection. In
no event shall the earliest date be later than thirty calendar days from
the date of notification;
(iv) The estimated date by which a copy of the record will be mailed
and the fee estimate pursuant to Sec. 4.31. In no event shall the
estimated date be later than thirty calendar days from the date of
notification;
(v) The fact that the individual, if he or she wishes, may be
accompanied by another individual during personal access, subject to the
procedures set forth in paragraph (f) of this section; and,
(vi) Any additional prerequisites for granting access to a specific
record.
(2) Methods of access. The following methods of access to records by
an individual may be available depending on the circumstances of a given
situation:
(i) Inspection in person may be had in the office specified by the
Privacy Act Officer granting access, during the hours indicated in
Appendix A to this part;
[[Page 46]]
(ii) Transfer of records to a Federal facility more convenient to
the individual may be arranged, but only if the Privacy Act Officer
determines that a suitable facility is available, that the individual's
access can be properly supervised at that facility, and that transmittal
of the records to that facility will not unduly interfere with
operations of the Department or involve unreasonable costs, in terms of
both money and manpower; and,
(iii) Copies of documents may be mailed at the request of the
individual and may be subject to payment of the fees prescribed in
Sec. Sec. 4.25(a)(3) and 4.31. In the event that the Department, at its
own initiative, elects to provide a copy by mail, no fee will be charged
to the individual.
(iv) Copies of documents listed on the USMDL that include full SSNs
and that are requested by an individual are subject to payment of the
fees prescribed in Sec. 4.31.
(v) Documents containing SSNs or truncated SSNs that are required to
be returned by the individual to the Department will be mailed or
delivered along with a prepaid mail or delivery service envelope at the
expense of the Department.
(c) Access to medical records is governed by the provisions of Sec.
4.26.
(d) The Department shall supply such other information and
assistance at the time of access as to make the record intelligible to
the individual.
(e) The Department reserves the right to limit access to copies and
abstracts of original records, rather than the original records. This
election would be appropriate, for example, when the record is in an
automated data medium such as tape or disc, when the record contains
information on other individuals, and when deletion of information is
permissible under exemptions (for example, 5 U.S.C. 552a(k)(2)). In no
event shall original records of the Department be made available to the
individual except under the immediate supervision of the Privacy Act
Officer or his or her designee.
(f) Any individual who requests access to a record pertaining to
that individual may be accompanied by another individual of his or her
choice. ``Accompanied'' includes discussing the record in the presence
of the other individual. The individual to whom the record pertains
shall authorize the presence of the other individual in writing. The
authorization shall include the name of the other individual, a specific
description of the record to which access is sought, the Department
control number assigned to the request, the date, and the signature of
the individual to whom the record pertains. The other individual shall
sign the authorization in the presence of the Privacy Act Officer. An
individual shall not be required to state a reason or otherwise justify
his or her decision to be accompanied by another individual during
personal access to a record.
(g) Initial denial of access: (1) Grounds. Access by an individual
to a record that pertains to that individual will be denied only upon a
determination by the Privacy Act Officer that:
(i) The record is exempt under Sec. 4.33 or 4.34, or exempt by
determination of another agency publishing notice of the system of
records, as described in Sec. 4.23(f);
(ii) The record is information compiled in reasonable anticipation
of a civil action or proceeding;
(iii) The provisions of Sec. 4.26 pertaining to medical records
have been invoked; or
(iv) The individual unreasonably has failed to comply with the
procedural requirements of this part.
(2) Notification. The Privacy Act Officer shall give notice of
denial of access to records to the individual in writing, and the notice
shall include the following information:
(i) The Privacy Act Officer's name and title or position;
(ii) The date of the denial;
(iii) The reasons for the denial, including citation to the
appropriate section of the Act and this part;
(iv) The individual's opportunities, if any, for further
administrative consideration, including the identity and address of the
responsible official. If no further administrative consideration within
the Department is available, the notice shall state that the denial is
administratively final; and,
[[Page 47]]
(v) If stated to be administratively final within the Department,
the individual's right to judicial review provided under 5
U.S.C.552a(g)(1), as limited by 5 U.S.C. 552a(g)(5).
(3) Administrative review. If a Privacy Act Officer issues an
initial denial of a request, the individual's opportunities for further
consideration shall be as follows:
(i) As to denial under paragraph (g)(1)(i) of this section, two
opportunities for further consideration are available in the
alternative:
(A) If the individual contests the application of an exemption to
the records, the review procedures in Sec. 4.25(g)(3)(ii) shall apply;
or,
(B) If the individual challenges the validity of the exemption
itself, the individual must file a petition for the issuance, amendment,
or repeal of a rule under 5 U.S.C. 553(e). If the exemption was
determined by the Department, such petition shall be filed with the
Assistant Secretary for Administration. If the exemption was determined
by another agency (as described in Sec. 4.23(f)), the Department will
provide the individual with the name and address of the other agency and
any relief sought by the individual shall be that provided by the
regulations of the other agency. Within the Department, no such denial
is administratively final until such a petition has been filed by the
individual and disposed of on the merits by the Assistant Secretary for
Administration.
(ii) As to denial under paragraphs (g)(1)(ii) of this section,
(g)(1)(iv) of this section or (to the limited extent provided in
paragraph (g)(3)(i)(A) of this section) paragraph (g)(1)(i) of this
section, the individual may file for review with the Assistant General
Counsel for Litigation, Employment, and Oversight, as indicated in the
Privacy Act Officer's initial denial notification. The individual and
the Department shall follow the procedures in Sec. 4.28 to the maximum
extent practicable.
(iii) As to denial under paragraph (g)(1)(iii) of this section, no
further administrative consideration within the Department is available
because the denial is not administratively final until expiration of the
time period indicated in Sec. 4.26(a).
(h) If a request is partially granted and partially denied, the
Privacy Act Officer shall follow the appropriate procedures of this
section as to the records within the grant and the records within the
denial.
[66 FR 65632, Dec. 20, 2001, as amended at 79 FR 62564, Oct. 20, 2014;
86 FR 21935, Apr. 26, 2021]
Sec. 4.26 Special procedures: Medical records.
When a request for access involves medical or psychological records,
the records will be reviewed by the Department's medical officer for a
determination on whether disclosure would be harmful to the individual
to whom they relate. If it is determined that disclosure would be
harmful, the Department may refuse to disclose the records directly to
the requester but shall transmit them to a doctor authorized in writing
by the individual to whom the records relate to receive the documents.
If an individual refuses to provide written authorization to release his
or her medical records to a doctor, barring any applicable exemption,
the Department shall give the individual access to his or her records by
means of a copy, provided without cost to the requester, sent registered
mail, return receipt requested.
[79 FR 62564, Oct. 20, 2014]
Sec. 4.27 Procedures for making requests for correction or amendment.
(a) Any individual, regardless of age, who is a citizen of the
United States or an alien lawfully admitted for permanent residence into
the United States may submit a request for correction or amendment to
the Department. The request should be made either in person or by mail
addressed to the Privacy Act Officer who processed the individual's
request for access to the record, and to whom is delegated authority to
make initial determinations on requests for correction or amendment. The
offices of Privacy Act Officers are open to the public between the hours
of 9 a.m. and 4 p.m. Monday through Friday (excluding Saturdays,
Sundays, and legal public holidays).
(b) Requests submitted by mail should include the words ``PRIVACY
ACT REQUEST'' in capital letters at
[[Page 48]]
the top of the letter and on the face of the envelope. Any request that
is not addressed as specified in paragraph (a) of this section or that
is not marked as specified in this paragraph will be so addressed and
marked by Department personnel and forwarded immediately to the
responsible Privacy Act Officer. A request that is not properly
addressed by the individual will not be deemed to have been ``received''
for purposes of measuring the time period for response until actual
receipt by the Privacy Act Officer. In each instance when a request so
forwarded is received, the Privacy Act Officer shall notify the
individual that his or her request was improperly addressed and the date
the request was received at the proper address.
(c) Since the request, in all cases, will follow a request for
access under Sec. 4.25, the individual's identity will be established
by his or her signature on the request and use of the Department control
number assigned to the request.
(d) A request for correction or amendment should include the
following:
(1) Specific identification of the record sought to be corrected or
amended (for example, description, title, date, paragraph, sentence,
line and words);
(2) The specific wording to be deleted, if any;
(3) The specific wording to be inserted or added, if any, and the
exact place at which it is to be inserted or added; and,
(4) A statement of the basis for the requested correction or
amendment, with all available supporting documents and materials that
substantiate the statement. The statement should identify the criterion
of the Act being invoked, that is, whether the information in the record
is unnecessary, inaccurate, irrelevant, untimely or incomplete.
Sec. 4.28 Agency review of requests for correction or amendment.
(a)(1)(i) Not later than ten working days (i.e., excluding
Saturdays, Sundays and legal public holidays) after receipt of a request
to correct or amend a record, the Privacy Act Officer shall send an
acknowledgment providing an estimate of time within which action will be
taken on the request and asking for such further information as may be
necessary to process the request. The estimate of time may take into
account unusual circumstances as described in Sec. 4.25(a). No
acknowledgment will be sent if the request can be reviewed, processed
and the individual notified of the results of review (either compliance
or denial) within the ten working days. Requests filed in person will be
acknowledged in writing at the time submitted.
(ii) If the Privacy Act Officer fails to send the acknowledgment
within ten working days, as provided in paragraph (a)(1)(i) of this
section, the requester may ask the Assistant General Counsel for
Litigation, Employment, and Oversight, or in the case of a request to
the Office of the Inspector General, the Counsel to the Inspector
General, to take corrective action. No failure of a Privacy Act Officer
to send an acknowledgment shall confer administrative finality for
purposes of judicial review.
(2) Promptly after acknowledging receipt of a request, or after
receiving such further information as might have been requested, or
after arriving at a decision within the ten working days, the Privacy
Act Officer shall either:
(i) Make the requested correction or amendment and advise the
individual in writing of such action, providing either a copy of the
corrected or amended record or, in cases in which a copy cannot be
provided, a statement as to the means by which the correction or
amendment was effected; or
(ii) Inform the individual in writing that his or her request is
denied and provide the following information:
(A) The Privacy Act Officer's name and title or position;
(B) The date of the denial;
(C) The reasons for the denial, including citation to the
appropriate sections of the Act and this subpart; and
(D) The procedures for appeal of the denial as set forth in Sec.
4.29, including the address of the Assistant General Counsel for
Litigation, Employment, and Oversight, or in the case of a request to
the Office of the Inspector
[[Page 49]]
General, the address of the Counsel to the Inspector General.
(3) The term promptly in this section means within thirty working
days (i.e., excluding Saturdays, Sundays and legal public holidays). If
the Privacy Act Officer cannot make the determination within thirty
working days, the individual will be advised in writing of the reason
for the delay and of the estimated date by which the determination will
be made.
(b) Whenever an individual's record is corrected or amended pursuant
to a request from that individual, the Privacy Act Officer shall notify
all persons and agencies to which the corrected or amended portion of
the record had been disclosed prior to its correction or amendment, if
an accounting of such disclosure required by the Act was made. The
notification shall require a recipient agency maintaining the record to
acknowledge receipt of the notification, to correct or amend the record,
and to apprise any agency or person to which it had disclosed the record
of the substance of the correction or amendment.
(c) The following criteria will be considered by the Privacy Act
Officer in reviewing a request for correction or amendment:
(1) The sufficiency of the evidence submitted by the individual;
(2) The factual accuracy of the information to be corrected or
amended;
(3) The relevance and necessity of the information in terms of the
purpose for which it was collected;
(4) The timeliness and currency of the information in light of the
purpose for which it was collected;
(5) The completeness of the information in terms of the purpose for
which it was collected;
(6) The degree of risk that denial of the request could unfairly
result in determinations adverse to the individual;
(7) The character of the record sought to be corrected or amended;
and,
(8) The propriety and feasibility of complying with the specific
means of correction or amendment requested by the individual.
(d) The Department will not undertake to gather evidence for the
individual, but does reserve the right to verify the evidence the
individual submits.
(e) Correction or amendment of a record requested by an individual
will be denied only upon a determination by the Privacy Act Officer
that:
(1) The individual has failed to establish, by a preponderance of
the evidence, the propriety of the correction or amendment in light of
the criteria set forth in paragraph (c) of this section;
(2) The record sought to be corrected or amended is part of the
official record in a terminated judicial, quasi-judicial or quasi-
legislative proceeding to which the individual was a party or
participant;
(3) The information in the record sought to be corrected or amended,
or the record sought to be corrected or amended, is the subject of a
pending judicial, quasi-judicial or quasi-legislative proceeding to
which the individual is a party or participant;
(4) The correction or amendment would violate a duly enacted statute
or promulgated regulation; or,
(5) The individual unreasonably has failed to comply with the
procedural requirements of this part.
(f) If a request is partially granted and partially denied, the
Privacy Act Officer shall follow the appropriate procedures of this
section as to the records within the grant and the records within the
denial.
[66 FR 65632, Dec. 20, 2001, as amended at 79 FR 62564, Oct. 20, 2014]
Sec. 4.29 Appeal of initial adverse agency determination on correction
or amendment.
(a) If a request for correction or amendment is denied initially
under Sec. 4.28, the individual may submit a written appeal within
thirty calendar days of the date of the initial denial. The appeal must
be received by the General Counsel, or by the Counsel to the Inspector
General in the case of an appeal of an initial adverse determination by
the Office of Inspector General, during normal business hours (8:30 a.m.
to 5:00 p.m., Eastern Time, Monday through Friday) within 30 calendar
days of the date of the initial denial. Appeals arriving after normal
business hours will be deemed received on the
[[Page 50]]
next normal business day. If the 30th calendar day falls on a Saturday,
Sunday, or a legal public holiday, an appeal received by 5:00 p.m.,
Eastern Time, the next business day will be deemed timely.
(b)(1) An appeal from a request to a component other than the Office
of the Inspector General should be addressed to the Assistant General
Counsel for Litigation, Employment, and Oversight, U.S. Department of
Commerce, Room 5875, 14th and Constitution Avenue NW., Washington, DC
20230. An appeal should include the words ``Privacy Act Appeal'' at the
top of the letter and on the face of the envelope. An appeal not
addressed and marked as provided herein will be so marked by Department
personnel when it is so identified, and will be forwarded immediately to
the Assistant General Counsel for Litigation, Employment, and Oversight.
An appeal which is not properly addressed by the individual will not be
deemed to have been ``received'' for purposes of measuring the time
periods in this section until actual receipt by the Assistant General
Counsel for Litigation, Employment, and Oversight. In each instance when
an appeal so forwarded is received, the Assistant General Counsel for
Litigation, Employment, and Oversight shall notify the individual that
his or her appeal was improperly addressed and the date on which the
appeal was received at the proper address.
(2) An appeal of an initial adverse determination on correction or
amendment by the Office of Inspector General should be addressed to the
Counsel to the Inspector General, U.S. Department of Commerce, Room
7898C, 14th and Constitution Avenue NW., Washington, DC 20230. An appeal
should include the words ``Privacy Act Appeal'' at the top of the letter
and on the face of the envelope. An appeal not addressed and marked as
provided herein will be so marked by Department personnel when it is so
identified, and will be forwarded immediately to the Counsel to the
Inspector General. An appeal which is not properly addressed by the
individual will not be deemed to have been ``received'' for purposes of
measuring the time periods in this section until actual receipt by the
Counsel to the Inspector General. In each instance when an appeal so
forwarded is received, the Counsel to the Inspector General shall notify
the individual that his or her appeal was improperly addressed and the
date on which the appeal was received at the proper address.
(c) The individual's appeal shall be signed by the individual, and
shall include a statement of the reasons for why the initial denial is
believed to be in error, and the Department's control number assigned to
the request. The Privacy Act Officer who issued the initial denial shall
furnish to the Assistant General Counsel for Litigation, Employment, and
Oversight, or in the case of an initial denial by the Office of the
Inspector General, to the Counsel to the Inspector General, the
record(s) the individual requests to be corrected or amended, and all
correspondence between the Privacy Act Officer and the requester.
Although the foregoing normally will comprise the entire record on
appeal, the Assistant General Counsel for Litigation, Employment, and
Oversight, or in the case of an initial denial by the Office of the
Inspector General, the Counsel to the Inspector General, may seek any
additional information necessary to ensure that the final determination
is fair and equitable and, in such instances, disclose the additional
information to the individual to the greatest extent possible, and
provide an opportunity for comment thereon.
(d) No personal appearance or hearing on appeal will be allowed.
(e) The Assistant General Counsel for Litigation, Employment, and
Oversight, or in the case of an initial denial by the Office of the
Inspector General, the Counsel to the Inspector General, shall act upon
the appeal and issue a final determination in writing not later than
thirty working days (i.e., excluding Saturdays, Sundays and legal public
holidays) from the date on which the appeal is received, except that the
Assistant General Counsel for Litigation, Employment, and Oversight, or
in the case of an initial denial by the Office of the Inspector General,
the Counsel to the Inspector General, may extend the thirty days upon
deciding that a fair and equitable review cannot be made within that
period, but
[[Page 51]]
only if the individual is advised in writing of the reason for the
extension and the estimated date by which a final determination will be
issued. The estimated date should not be later than the sixtieth day
after receipt of the appeal unless unusual circumstances, as described
in Sec. 4.25(a), are met.
(f) If the appeal is determined in favor of the individual, the
final determination shall include the specific corrections or amendments
to be made and a copy thereof shall be transmitted promptly to the
individual and to the Privacy Act Officer who issued the initial denial.
Upon receipt of such final determination, the Privacy Act Officer shall
promptly take the actions set forth in Sec. 4.28(a)(2)(i) and (b).
(g) If the appeal is denied, the final determination shall be
transmitted promptly to the individual and state the reasons for the
denial. The notice of final determination shall inform the individual
that:
(1) The individual has a right under the Act to file with the
Assistant General Counsel for Litigation, Employment, and Oversight, or
in the case of an initial denial by the Office of the Inspector General,
the Counsel to the Inspector General, a concise statement of reasons for
disagreeing with the final determination. The statement ordinarily
should not exceed one page and the Department reserves the right to
reject an excessively lengthy statement. It should provide the
Department control number assigned to the request, indicate the date of
the final determination and be signed by the individual. The Assistant
General Counsel for Litigation, Employment, and Oversight, or in the
case of an initial denial by the Office of the Inspector General, the
Counsel to the Inspector General, shall acknowledge receipt of such
statement and inform the individual of the date on which it was
received;
(2) Any such disagreement statement submitted by the individual
would be noted in the disputed record, and filed with it;
(3) The purposes and uses to which the statement would be put are
those applicable to the record in which it is noted, and that a copy of
the statement would be provided to persons and agencies to which the
record is disclosed subsequent to the date of receipt of such statement;
(4) The Department would append to any such disagreement statement a
copy of the final determination or summary thereof, which also would be
provided to persons and agencies to which the disagreement statement is
disclosed; and
(5) The individual has a right to judicial review of the final
determination under 5 U.S.C. 552a(g)(1)(A), as limited by 5 U.S.C.
552a(g)(5).
(h) In making the final determination, the Assistant General Counsel
for Litigation, Employment, and Oversight, or in the case of an initial
denial by the Office of the Inspector General, the Counsel to the
Inspector General, shall employ the criteria set forth in Sec. 4.28(c)
and shall deny an appeal only on grounds set forth in Sec. 4.28(e).
(i) If an appeal is partially granted and partially denied, the
Assistant General Counsel for Litigation, Employment, and Oversight, or
in the case of an initial denial by the Office of the Inspector General,
the Counsel to the Inspector General, shall follow the appropriate
procedures of this section as to the records within the grant and the
records within the denial.
(j) Although a copy of the final determination or a summary thereof
will be treated as part of the individual's record for purposes of
disclosure in instances where the individual has filed a disagreement
statement, it will not be subject to correction or amendment by the
individual.
(k) The provisions of paragraphs (g)(1) through (g)(3) of this
section satisfy the requirements of 5 U.S.C. 552a(e)(3).
[66 FR 65632, Dec. 20, 2001, as amended at 79 FR 62564, Oct. 20, 2014]
Sec. 4.30 Disclosure of record to person other than the individual to
whom it pertains.
(a) The Department may disclose a record pertaining to an individual
to a person other than the individual to whom it pertains only in the
following instances:
(1) Upon written request by the individual, including authorization
under Sec. 4.25(f);
[[Page 52]]
(2) With the prior written consent of the individual;
(3) To a parent or legal guardian under 5 U.S.C. 552a(h);
(4) When required by the Act and not covered explicitly by the
provisions of 5 U.S.C. 552a(b); and
(5) When permitted under 5 U.S.C. 552a(b)(1) through (12), as
follows: \3\
---------------------------------------------------------------------------
\3\ 5 U.S.C. 552a(b)(4) has no application within the Department.
---------------------------------------------------------------------------
(i) To those officers and employees of the agency that maintains the
record who have a need for the record in the performance of their
duties;
(ii) Required under 5 U.S.C. 552;
(iii) For a routine use as defined in 5 U.S.C. 552a(a)(7);
(iv) To the Bureau of the Census for purposes of planning or
carrying out a census or survey or related activity pursuant to the
provisions of Title 13 of the U.S. Code;
(v) To a requester who has provided the agency with advance adequate
written assurance that the record will be used solely as a statistical
research or reporting record, and the record is to be transferred in a
form that is not individually identifiable;
(vi) To the National Archives and Records Administration as a record
that has sufficient historical or other value to warrant its continued
preservation by the United States Government, or for evaluation by the
Archivist of the United States, or the designee of the Archivist, to
determine whether the record has such value;
(vii) To another agency or to an instrumentality of any governmental
jurisdiction within or under the control of the United States for a
civil or criminal law enforcement activity if the activity is authorized
by law, and if the head of the agency or instrumentality has made a
written request to the agency which maintains the record, specifying the
particular portion desired and the law enforcement activity for which
the record is sought;
(viii) To a person pursuant to a showing of compelling circumstances
affecting the health or safety of an individual if upon such disclosure
notification is transmitted to the last known address of such
individual;
(ix) To either House of Congress, or, to the extent of matter within
its jurisdiction, any committee or subcommittee thereof, any joint
committee of Congress or subcommittee of any such joint committee;
(x) To the Comptroller General, or any of his or her authorized
representatives, in the course of the performance of the duties of the
General Accounting Office;
(xi) Pursuant to the order of a court of competent jurisdiction; or
(xii) To a consumer reporting agency in accordance with 31 U.S.C.
3711(e).
(b) The situations referred to in paragraph (a)(4) of this section
include the following:
(1) 5 U.S.C. 552a(c)(4) requires dissemination of a corrected or
amended record or notation of a disagreement statement by the Department
in certain circumstances;
(2) 5 U.S.C. 552a(d) requires disclosure of records to the
individual to whom they pertain, upon request; and
(3) 5 U.S.C. 552a(g) authorizes civil action by an individual and
requires disclosure by the Department to the court.
(c) The Privacy Act Officer shall make an accounting of each
disclosure by him of any record contained in a system of records in
accordance with 5 U.S.C. 552a(c)(1) and (2). Except for a disclosure
made under 5 U.S.C. 552a(b)(7), the Privacy Act Officer shall make such
accounting available to any individual, insofar as it pertains to that
individual, upon any request submitted in accordance with Sec. 4.24.
The Privacy Act Officer shall make reasonable efforts to notify any
individual when any record in a system of records is disclosed to any
person under compulsory legal process, promptly upon being informed that
such process has become a matter of public record.
[66 FR 65632, Dec. 20, 2001, as amended at 67 FR 60282, Sept. 25, 2002]
Sec. 4.31 Fees.
(a) The only fee to be charged to an individual under this part is
for duplication of records at the request of the individual. Components
shall charge a fee for duplication of records under the Act in the same
way in which they charge a duplication fee under Sec. 4.11,
[[Page 53]]
except as provided in this section. Accordingly, no fee shall be charged
or collected for: search, retrieval, or review of records; copying at
the initiative of the Department without a request from the individual;
transportation of records; or first-class postage.
(b) The Department shall provide an individual one copy of each
record corrected or amended pursuant to the individual's request without
charge as evidence of the correction or amendment.
(c) As required by the United States Office of Personnel Management
in its published regulations implementing the Act, the Department shall
charge no fee for a single copy of a personnel record covered by that
agency's Government-wide published notice of systems of records.
Sec. 4.32 Penalties.
(a) The Act provides, in pertinent part:
Any person who knowingly and willfully requests or obtains any
record concerning an individual from an agency under false pretenses
shall be guilty of a misdemeanor and fined not more than $5,000. (5
U.S.C. 552a(i)(3)).
(b) A person who falsely or fraudulently attempts to obtain records
under the Act also may be subject to prosecution under such other
criminal statutes as 18 U.S.C. 494, 495 and 1001.
Sec. 4.33 General exemptions.
(a) Individuals may not have access to records maintained by the
Department but which were provided by another agency which has
determined by regulation that such information is subject to general
exemption under 5 U.S.C. 552a(j). If such exempt records are within a
request for access, the Department will advise the individual of their
existence and of the name and address of the source agency. For any
further information concerning the record and the exemption, the
individual must contact that source agency.
(b) The general exemptions determined to be necessary and proper
with respect to systems of records maintained by the Department,
including the parts of each system to be exempted, the provisions of the
Act from which they are exempted, and the justification for the
exemption, are as follows:
(1) Individuals identified in Export Transactions--COMMERCE/BIS-1.
Pursuant to 5 U.S.C. 552a(j)(2), these records are hereby determined to
be exempt from all provisions of the Act, except 5 U.S.C. 552a(b),
(c)(1) and (2), (e)(4)(A) through (F), (e)(6), (7), (9), (10), and (11),
and (i). These exemptions are necessary to ensure the proper functioning
of the law enforcement activity, to protect confidential sources of
information, to fulfill promises of confidentiality, to maintain the
integrity of the law enforcement process, to avoid premature disclosure
of the knowledge of criminal activity and the evidentiary bases of
possible enforcement actions, to prevent interference with law
enforcement proceedings, to avoid disclosure of investigative
techniques, and to avoid endangering law enforcement personnel. Section
12(c) of the Export Administration Act of 1979, as amended, also
protects this information from disclosure.
(2) Fisheries Law Enforcement Case Files--COMMERCE/NOAA-5. Pursuant
to 5 U.S.C. 552a(j)(2), these records are hereby determined to be exempt
from all provisions of the Act, except 5 U.S.C. 552a (b), (c) (1) and
(2), (e) (4) (A) through (F), (e) (6), (7), (9), (10), and (11), and
(i). These exemptions are necessary to ensure the proper functioning of
the law enforcement activity, to protect confidential sources of
information, to fulfill promises of confidentiality, to prevent
interference with law enforcement proceedings, to avoid the disclosure
of investigative techniques, to avoid the endangering of law enforcement
personnel, to avoid premature disclosure of the knowledge of criminal
activity and the evidentiary bases of possible enforcement actions, and
to maintain the integrity of the law enforcement process.
(3) Investigative and Inspection Records--COMMERCE/DEPT-12. Pursuant
to 5 U.S.C. 552a(j)(2), these records are hereby determined to be exempt
from all provisions of the Act, except 5 U.S.C. 552a (b), (c) (1) and
(2), (e)(4) (A) through (F), (e) (6), (7), (9), (10), and (11), and (i).
These exemptions are necessary to ensure the proper operation
[[Page 54]]
of the law enforcement activity, to protect confidential sources of
information, to fulfill promises of confidentiality, to prevent
interference with law enforcement proceedings, to avoid the disclosure
of investigative techniques, to avoid the endangering of law enforcement
personnel, to avoid premature disclosure of the knowledge of criminal
activity and the evidentiary bases of possible enforcement actions, and
to maintain the integrity of the law enforcement process.
(4) Access Control and Identity Management System--COMMERCE/DEPT-25.
Pursuant to 5 U.S.C. 552a(j)(2), these records are hereby determined to
be exempt from all provisions of the Act, except 5 U.S.C. 552a(b),
(c)(1) and (2), (e)(4)(A) through (F), (e)(6), (7), (9), (10), and (11),
and (i). These exemptions are necessary to ensure the proper functioning
of the law enforcement activity, to protect confidential sources of
information, to fulfill promises of confidentiality, to maintain the
integrity of the law enforcement process, to avoid premature disclosure
of the knowledge of criminal activity and the evidentiary bases of
possible enforcement actions, to prevent interference with law
enforcement proceedings, to avoid disclosure of investigative
techniques, and to avoid endangering law enforcement personnel.
(5) Investigation and Threat Management Records--COMMERCE/DEPT-27.
Pursuant to 5 U.S.C. 552a(j)(2), these records are hereby determined to
be exempt from all provisions of the Act, except 5 U.S.C. 552a(b),
(c)(l) and (2), (e)(4)(A) through (F), (e)(6), (7), (9), (10), and (11),
and (i). These exemptions are necessary to ensure the proper functioning
of the law enforcement activity of the agency, to prevent disclosure of
classified information as required by Executive Order 13526, to assure
the protection of the President, to prevent subjects of investigation
from frustrating the investigatory process, to prevent the disclosure of
investigative techniques, to fulfill commitments made to protect the
confidentiality of information, and to avoid endangering these sources
and law enforcement personnel.
[66 FR 65632, Dec. 20, 2001, as amended at 79 FR 62565, Oct. 20, 2014;
80 FR 68443, Nov. 5, 2015; 86 FR 49921, Sept. 7, 2021]
Sec. 4.34 Specific exemptions.
(a)(1) Certain systems of records under the Act that are maintained
by the Department may occasionally contain material subject to 5 U.S.C.
552a(k)(1), relating to national defense and foreign policy materials.
The systems of records published in the Federal Register by the
Department that are within this exemption are: COMMERCE/BIS-1, COMMERCE/
ITA-2, COMMERCE/ITA-3, COMMERCE/NOAA-11, COMMERCE/PAT-TM-4, COMMERCE/
DEPT-12, COMMERCE/DEPT-13, COMMERCE/DEPT-14, COMMERCE/DEPT-25, and
COMMERCE/DEPT-27.
(2) The Department hereby asserts a claim to exemption of such
materials wherever they might appear in such systems of records, or any
systems of records, at present or in the future. The materials would be
exempt from 5 U.S.C. 552a (c)(3), (d), (e)(1), (e)(4) (G), (H), and (I),
and (f), because the materials are required by Executive order to be
kept secret in the interest of the national defense and foreign policy.
(b) The specific exemptions determined to be necessary and proper
with respect to systems of records maintained by the Department,
including the parts of each system to be exempted, the provisions of the
Act from which they are exempted, and the justification for the
exemption, are as follows:
(1) Exempt under 5 U.S.C. 552a(k)(1). The systems of records exempt
hereunder appear in paragraph (a) of this section. The claims for
exemption of COMMERCE/DEPT-12, COMMERCE/BIS-1, COMMERCE/NOAA-5,
COMMERCE/DEPT-25, and COMMERCE/DEPT-27 under this paragraph are subject
to the condition that the general exemption claimed in Sec. 4.33(b) is
held to be invalid.
(2)(i) Exempt under 5 U.S.C. 552a(k)(2). The systems of records
exempt (some only conditionally), the
[[Page 55]]
sections of the Act from which exempted, and the reasons therefor are as
follows:
(A) Individuals identified in Export Administration compliance
proceedings or investigations--COMMERCE/BIS-1, but only on condition
that the general exemption claimed in Sec. 4.33(b)(1) is held to be
invalid;
(B) Individuals involved in export transactions--COMMERCE/ITA-2;
(C) Fisheries Law Enforcement Case Files--COMMERCE/NOAA-5, but only
on condition that the general exemption claimed in Sec. 4.33(b)(2) is
held to be invalid;
(D) Investigative and Inspection Records--COMMERCE/DEPT-12, but only
on condition that the general exemption claimed in Sec. 4.33(b)(3) is
held to be invalid;
(E) Investigative Records--Persons Within the Investigative
Jurisdiction of the Department--COMMERCE/DEPT-13;
(F) Access Control and Identity Management System--COMMERCE/DEPT-25,
but only on condition that the general exemption claimed in Sec.
4.33(b)(4) is held to be invalid;
(G) Investigation and Threat Management Records--COMMERCE/DEPT-27,
but only on condition that the general exemption claimed in Sec.
4.33(b)(4) is held to be invalid;
(ii) The foregoing are exempted from 5 U.S.C. 552a (c)(3), (d),
(e)(1), (e)(4)(G), (H), and (I), and (f). The reasons for asserting the
exemption are to prevent subjects of investigation from frustrating the
investigatory process; to ensure the proper functioning and integrity of
law enforcement activities; to prevent disclosure of investigative
techniques; to maintain the ability to obtain necessary information; to
fulfill commitments made to sources to protect their identities and the
confidentiality of information; and to avoid endangering these sources
and law enforcement personnel. Special note is taken that the proviso
clause in this exemption imports due process and procedural protections
for the individual. The existence and general character of the
information exempted shall be made known to the individual to whom it
pertains.
(3)(i) Exempt under 5 U.S.C. 552a(k)(4). The systems of records
exempt, the sections of the Act from which exempted, and the reasons
therefor are as follows:
(A) Special Censuses, Surveys, and Other Studies--COMMECE/CENSUS-3;
(B) Economic Survey Collection--COMMERCE/CENSUS-4;
(C) Decennial Census Program--COMMERCE/CENSUS-5;
(D) Population Census Records for 1910 & All Subsequent Decennial
Census--COMMERCE/CENSUS-6;
(E) Other Agency Surveys & Reimbursable--COMMERCE/CENSUS-7;
(F) Statistical Administrative Records System--COMMERCE/CENSUS-8;
(G) Longitudinal Employer-Household Dynamics System--COMMERCE/
CENSUS-9; and
(H) Foreign Trade Statistics--COMMERCE/CENSUS-12.
(ii) The foregoing are exempted from 5 U.S.C. 552a(c)(3), (d),
(e)(1), (e)(4)(G) (H), and (I), and (f). The reasons for asserting the
exemption are to comply with the prescription of Title 13 of the United
States Code, especially sections 8 and 9 relating to prohibitions
against disclosure, and to avoid needless consideration of these records
whose sole statistical use comports fully with a basic purpose of the
Act, namely, that no adverse determinations are made from these records
as to any identifiable individual.
(4)(i) Exempt under 5 U.S.C. 552a(k)(5 ). The systems of records
exempt (some only conditionally), the sections of the Act from which
exempted, and the reasons therefor are as follows:
(A) Applications to U.S. Merchant Marine Academy (USMMA)--COMMERCE/
MA-1;
(B) USMMA Midshipman Medical Files--COMMERCE/MA-17;
(C) USMMA Midshipman Personnel Files--COMMERCE/MA-18;
(D) USMMA Non-Appropriated Fund Employees--COMMERCE/MA-19;
(E) Applicants for the NOAA Corps--COMMERCE/NOAA-I;
(F) Commissioned Officer Official Personnel Folders--COMMERCE/NOAA-
3;
[[Page 56]]
(G) Conflict of lnterest Records, Appointed Officials--COMMERCE/
DEPT-3;
(H) Investigative and Inspection Records--COMMERCE/DEPT-12, but only
on condition that the general exemption claimed in Sec. 4.33(b)(3) is
held to be invalid;
(I) Investigative Records--Persons within the Investigative
Jurisdiction of the Department COMMERCE/DEPT-13;
(J) Litigation, Claims, and Administrative Proceeding Records--
COMMERCE/DEPT-14;
(K) Access Control and Identity Management System--COMMERCE/DEPT-25,
but only on condition that the general exemption claimed in Sec.
4.33(b)(4) is held to be invalid; and
(L) Investigation and Threat Management Records--COMMERCE/DEPT-27,
but only on condition that the general exemption claimed in Sec.
4.33(b)(4) is held to be invalid.
(ii) The foregoing are exempted from 5 U.S.C. 552a (c)(3), (d),
(e)(1), (e)(4) (G), (H), and (I), and (f). The reasons for asserting the
exemption are to maintain the ability to obtain candid and necessary
information, to fulfill commitments made to sources to protect the
confidentiality of information, to avoid endangering these sources and,
ultimately, to facilitate proper selection or continuance of the best
applicants or persons for a given position or contract. Special note is
made of the limitation on the extent to which this exemption may be
asserted. The existence and general character of the information
exempted will be made known to the individual to whom it pertains.
(c) At the present time, the Department claims no exemption under 5
U.S.C. 552a(k) (3), (6) and (7).
[66 FR 65632, Dec. 20, 2001, as amended at 79 FR 62565, Oct. 20, 2014;
80 FR 68443, Nov. 5, 2015; 86 FR 49921, Sept. 7, 2021]
Sec. Appendix A to Part 4--Freedom of Information Public Inspection
Facilities, and Addresses for Requests for Records Under the Freedom of
Information Act and Privacy Act, and Requests for Correction or
Amendment Under the Privacy Act
Each address listed below is the respective component's mailing
address for receipt and processing of requests for records under the
Freedom of Information Act and Privacy Act, for requests for correction
or amendment under the Privacy Act and, unless otherwise noted, its
public inspection facility for records available to the public under the
Freedom of Information Act. Requests should be addressed to the
component the requester knows or has reason to believe has possession
of, control over, or primary concern with the records sought. Otherwise,
requests should be addressed to the Departmental FOIA Office identified
in paragraph (1) of this appendix. The telephone and facsimile numbers
for each component are included after its address, as well as email
addresses for components that maintain an email address for the purposes
of receiving of FOIA and Privacy Act requests. Records of components
that are required to be made publicly available are available
electronically either through the Department's ``Electronic FOIA
Library'' on the Department's Web site, http://www.doc.gov, as described
in Sec. 4.2(a), or the component's separate online Electronic FOIA
Library as indicated below. Components that maintain a public inspection
facility are designated as such below. These public inspection
facilities records are open to the public Monday through Friday (i.e.,
excluding Saturdays, Sundays, and legal public holidays) between 9:00
a.m. and 4:00 p.m. local time of the facility at issue. The Departmental
Freedom of Information Act Officer is authorized to revise this appendix
to reflect changes in the information contained in it. Any such
revisions shall be posted on the Department's ``FOIA Home Page'' link
found at the Department's Web site, http://www.doc.gov.
(1) U.S. Department of Commerce, Office of Privacy and Open
Government, Departmental FOIA Office, 14th and Constitution Avenue NW,
Room H61025, Washington, DC 20230; Phone: (202) 482-3258; Fax: (202)
482-0827; Email: [email protected]. The Department maintains a list of
contact methods on its website at https://osec.doc.gov/opog/FOIA/
FOIA_Requests.htmlFile. This component maintains an online Electronic
FOIA Library through the Department's website, http://www.doc.gov. This
online Electronic
[[Page 57]]
FOIA Library serves the Office of the Secretary, all other components of
the Department not identified below, and those components identified
below that do not have separate online Electronic FOIA Libraries.
(2) Bureau of the Census, Policy Coordination Office, U.S.
Department of Commerce, Room 8H027, 4600 Silver Hill Road, Suitland,
Maryland 20233; Phone: (301) 763-6440; Fax: (301) 763-6239 (ATTN.: FOIA
Office); Email: [email protected]. This component maintains a
separate online Electronic FOIA Library through its website, http://
www.census.gov.
(3) Bureau of Economic Analysis, Office of the Under Secretary for
Economic Affairs, U.S. Department of Commerce, Bureau of Economic
Analysis, Communications Division, Mail Stop BE-64, Room 8K114F,
Washington, DC 20230; Phone: 301-278-9798; Email: [email protected].
(4) Bureau of Industry and Security, Office of Administration, U.S.
Department of Commerce, 14th and Constitution Avenue NW, Room H6622,
Washington, DC 20230; Phone: (202) 482-0953; Fax: (202) 482-0326; Email:
[email protected]. This component maintains a separate online
Electronic FOIA Library through its website, http://www.bis.doc.gov.
(5) Economic Development Administration, Office of the Chief
Counsel, U.S. Department of Commerce, 14th and Constitution Avenue NW,
Room 72023, Washington, DC 20230; Phone: (202) 482-3085; Fax: (202) 482-
5671. This component maintains a separate online Electronic FOIA Library
through its website, http://www.eda.gov. The following Regional Economic
Development Administration (EDA) offices do not maintain separate online
Electronic FOIA Libraries.
(i) Atlanta Regional Office, EDA, U.S. Department of Commerce, 401
West Peachtree Street NW, Suite 1820, Atlanta, Georgia 30308; Phone:
(404) 730-3006.
(ii) Austin Regional Office, EDA, U.S. Department of Commerce, 504
Lavaca Street, Suite 1100, Austin, Texas 78701; Phone: (512) 381-8165.
(iii) Chicago Regional Office, EDA, U.S. Department of Commerce, 111
North Canal Street, Suite 855, Chicago, Illinois 60606; Phone: (312)
353-8143.
(iv) Denver Regional Office, EDA, U.S. Department of Commerce, 410
17th Street, Suite 250, Denver, Colorado 80202; Phone: (303) 844-4404.
(v) Philadelphia Regional Office, EDA, U.S. Department of Commerce,
Robert N.C. Nix Federal Building, 900 Market Street, Room 602,
Philadelphia, Pennsylvania 19107, Phone: (215) 597-4603.
(vi) Seattle Regional Office, EDA, U.S. Department of Commerce,
Jackson Federal Building, Room 1890, 915 Second Avenue, Seattle,
Washington 98174; Phone: (206) 220-7663.
(6) International Trade Administration, Office of Strategic
Resources, U.S. Department of Commerce, 14th and Constitution Avenue NW,
Room 40003, Washington, DC 20230; Phone: (202) 482-7937; Fax: (202) 482-
1584; Email: [email protected]. This component does not maintain a separate
online Electronic FOIA Library.
(7) Minority Business Development Agency, Office of Administration
and Employee Support Services, U.S. Department of Commerce, 14th and
Constitution Avenue NW, Room 5092, Washington, DC 20230; Phone: (202)
482-2419; Fax: (202) 482-2500; Email: [email protected]. This component
maintains a separate online Electronic FOIA Library through its website,
http://www.mbda.gov.
(8) National Institute of Standards and Technology, Management and
Organization Office, U.S. Department of Commerce, 100 Bureau Drive, Room
1710, Gaithersburg, Maryland 20899-1710; Phone: (301) 975-4054; Fax:
(301) 975-5301; Email: [email protected]. This component maintains a
separate public inspection facility at the Administration Building,
Gaithersburg, Maryland. Please call (301) 975-4054 for inspection
facility directions and hours. This component does not maintain a
separate online Electronic FOIA Library.
(9) National Oceanic and Atmospheric Administration, U.S. Department
of Commerce, 1315 East-West Highway (SSMC3), Room 9719, Silver Spring,
Maryland 20910; Phone: (301) 628-5658; Fax: (301) 713-1169; Email:
[email protected]. This component maintains a separate online Electronic
FOIA Library through its website, http://www.noaa.gov.
(10) National Technical Information Service, Office of the Chief
Information Officer, U.S. Department of Commerce, 5301 Shawnee Road,
Room 227, Alexandria, Virginia 22312; Phone: (703) 605-6710; Fax: (703)
605-6764. This component maintains a separate online Electronic FOIA
Library through its website, http://www.ntis.gov.
(11) National Telecommunications and Information Administration,
Office of the Chief Counsel, U.S. Department of Commerce, 14th and
Constitution Avenue NW, Room 4713, Washington, DC 20230; Phone: (202)
482-1816; Fax: (202) 501-8013; Email: [email protected]. This component
does not maintain a separate online Electronic FOIA Library.
(12) Office of Inspector General, FOIA and Records Management
Specialist, U.S. Department of Commerce, 14th and Constitution Avenue
NW, Room 7898C, Washington, DC 20230; Phone: (202) 794-8066; Email:
[[Page 58]]
[email protected]. This component maintains a separate online Electronic
FOIA Library through its website, http://www.oig.doc.gov.
[79 FR 62566, Oct. 20, 2014, as amended at 83 FR 39596, Aug. 10, 2018;
88 FR 36471, June 5, 2023]
Sec. Appendix B to Part 4--Officials Authorized To Deny Requests for
Records Under the Freedom of Information Act, and Requests for Records
and Requests for Correction or Amendment Under the Privacy Act
The officials of the Department listed below and their superiors
have authority, with respect to the records for which each is
responsible, to deny requests for records under the FOIA,\1\ and
requests for records and requests for correction or amendment under the
PA. In addition, the Departmental Freedom of Information Act Officer and
the Freedom of Information Act Officer for the Office of the Secretary
have the foregoing FOIA and PA denial authority for all records of the
Department. The Departmental Freedom of Information Act Officer is
authorized to assign that authority, on a case-by-case basis only, to
any of the officials listed below, if the records responsive to a
request include records for which more than one official listed below is
responsible. The Departmental Freedom of Information Act Officer is
authorized to revise this appendix to reflect changes in designation of
denial officials. Any such revisions shall be posted on the Department's
``FOIA Home Page'' link found at the Department's Web site, http://
www.doc.gov.
---------------------------------------------------------------------------
\1\ The foregoing officials have sole authority under Sec. 4.7(c)
to deny requests for records in any respect, including, for example,
denying requests for reduction or waiver of fees.
---------------------------------------------------------------------------
OFFICE OF THE SECRETARY
Office of the Secretary: Executive Secretary; Freedom of Information Act
Officer
Office of Business Liaison: Director
Office of Public Affairs: Director; Deputy Director; Press Secretary;
Deputy Press Secretary
Assistant Secretary for Legislative and Intergovernmental Affairs;
Deputy Assistant Secretary for Legislative and Intergovernmental Affairs
Office of Inspector General: Freedom of Information Act Officer
Office of the General Counsel: Deputy General Counsel; Assistant General
Counsel for Litigation, Employment, and Oversight
Office of Executive Support: Director
Office of Chief Information Officer: Director
ASSISTANT SECRETARY FOR ADMINISTRATION
Office of Civil Rights: Director
Office of Budget: Director
Office of Privacy and Open Government: Director; Departmental Freedom of
Information Act Officer
Office of Program Evaluation and Risk Management: Director
Office of Financial Management: Director
Office of Human Resources Management: Director; Deputy Director
Office of Administrative Services: Director
Office of Security: Director
Office of Acquisition Management: Director
Office of Acquisition Services: Director
Office of Small and Disadvantaged Business Utilization: Director
BUREAU OF INDUSTRY AND SECURITY
Under Secretary
Deputy Under Secretary
Director, Office of Administration
Director, Office of Planning, Evaluation and Management
Assistant Secretary for Export Administration
Deputy Assistant Secretary for Export Administration
Director, Office of Strategic Industries and Economic Security
Director, Office of Nonproliferation Controls and Treaty Compliance
Director, Office of Exporter Services
Assistant Secretary for Export Enforcement
Deputy Assistant Secretary for Export Enforcement
Director, Office of Export Enforcement
Director, Office of Enforcement Analysis
Director, Office of Antiboycott Compliance
ECONOMICS AND STATISTICS ADMINISTRATION
Office of Administration: Director
Bureau of Economic Analysis: Director
Bureau of the Census: Freedom of Information Act Officer
ECONOMIC DEVELOPMENT ADMINISTRATION
Freedom of Information Officer
INTERNATIONAL TRADE ADMINISTRATION
Executive Administration
Under Secretary for International Trade
Deputy Under Secretary for International Trade
Chief Counsel for International Trade
Chief Counsel for Enforcement and Compliance
Trade Promotion Coordinating Committee Secretariat
Director, Office of Public Affairs
[[Page 59]]
Director, Office of Legislative and Intergovernmental Affairs
Chief Information Officer
Deputy Chief Information Officer
Chief Administrative Officer, Office of the Chief Information Officer
Chief Financial and Administration Officer
Deputy Chief Financial Administrative Officer
Director, Budget Division
Director, Financial Management and Administrative Oversight Division
Director, Business Operations and Policy Compliance Division
Director, Performance Management and Employee Programs Division
Freedom of Information Act Officer
Enforcement and Compliance
Assistant Secretary for Enforcement and Compliance
Deputy Assistant Secretary for Enforcement and Compliance
Director, Office of Foreign Trade Zones Staff
Director, Office of Operations Support
Deputy Assistant Secretary for Antidumping and Countervailing Duty
Operations
Executive Director, Antidumping and Countervailing Duty Operations
Director, Office of Antidumping and Countervailing Duty Enforcement I
Director, Office of Antidumping and Countervailing Duty Enforcement II
Director, Office of Antidumping and Countervailing Duty Enforcement III
Director, Office of Antidumping and Countervailing Duty Enforcement IV
Director, Office of Antidumping and Countervailing Duty Enforcement V
Director, Office of Antidumping and Countervailing Duty Enforcement VI
Director, Office of Antidumping and Countervailing Duty Enforcement VII
Deputy Assistant Secretary for Policy & Negotiations
Director, Office of Trade Agreements Negotiations and Compliance
Director, Office of Accounting
Director, Office of Policy
Global Markets
Assistant Secretary of Global Markets and Director General for the
US&FCS
Deputy Director General
Principal Deputy Assistant Secretary
Executive Director, Advocacy Center
Director, Business Information and Technology Office
Director, Global Knowledge Center
Director, Office of Budget
Director, Office of Foreign Service Human Capital
Director, Office of Strategic Planning
Director, Office of Administrative Services
Executive Director, SelectUSA
Deputy Assistant Secretary for U.S. Field
National U.S. Field Director
Deputy Assistant Secretary for Asia
Executive Director for Asia
Director, Office of the ASEAN and Pacific Basin
Director, Office of East Asia and APEC
Director, Office of South Asia
Deputy Assistant Secretary for China, Hong Kong, and Mongolia
Executive Director for China, Hong Kong, and Mongolia
Director, Office of China, Hong Kong, and Mongolia
Deputy Assistant Secretary for Western Hemispheres
Executive Director for Western Hemispheres
Director, Office of North and Central America
Director, Office of South America
Deputy Assistant Secretary for Europe, Middle East, and Africa
Executive Deputy Assistant Secretary for Europe, Middle East, and Africa
Executive Director for Europe and Eurasia
Director, Office of Europe Country Affairs
Director, Office of the European Union
Director, Office of Russia, Ukraine, and Eurasia
Executive Director for Africa and Middle East
Director, Office of the Middle East and North Africa
Director, Office of Sub-Saharan Africa
Industry and Analysis
Assistant Secretary for Industry and Analysis
Deputy Assistant Secretary for Industry and Analysis
Trade Agreements Secretariat
Executive Director, Office of Trade Programs and Strategic Partnerships
Director, Trade Promotion Programs
Director, Strategic Partnerships
Director, Office of Advisory Committees and Industry Outreach
Director, Office of Planning, Coordination and Management
Deputy Assistant Secretary for Services
Director, Office of Financial and Insurance Industries
Director, Office of Digital Service Industries
Director, Office of Supply Chain, Professional and Business Services
Executive Director for National Travel and Tourism Office
Director, Office of Travel and Tourism Industries
Deputy Assistant Secretary for Trade Policy and Analysis
Director, Office of Standards and Investment Policy
Director, Office of Trade and Economic Analysis
Director, Office of Trade Negotiations and Analysis
[[Page 60]]
Director, Office of Intellectual Property Rights
Deputy Assistant Secretary for Manufacturing
Director, Office of Energy and Environmental Industries
Director, Office of Transportation and Machinery
Director, Office of Health and Information Technologies
Deputy Assistant Secretary for Textiles, Consumer Goods, and Materials
Director, Office of Textiles and Appeal
Director, Office of Materials
Director, Office of Consumer Goods
MINORITY BUSINESS DEVELOPMENT AGENCY
Chief Counsel
Freedom of Information Officer
NATIONAL INSTITUTE OF STANDARDS AND TECNOLOGY
Chief, Management and Organization Office
NIST Counsel
NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION
Under Secretary
Deputy Under Secretary for Operations
Chief, Resource and Operations Management
Director, Office of Communications and External Affairs
Director, Office of Marine and Aviation Operations
General Counsel
Deputy General Counsel
Assistant Administrator for National Ocean Services
Deputy Assistant Administrator for National Ocean Services
Assistant Administrator for National Marine Fisheries Service
Deputy Assistant Administrator for Operations for National Marine
Fisheries Service
Deputy Assistant Administrator for Regulatory Programs for National
Marine Fisheries Service
Assistant Administrator for National Weather Services
Deputy Assistant Administrator for National Weather Services
Assistant Administrator for National Environmental Satellite, Data, and
Information Service
Deputy Assistant Administrator for National Environmental Satellite,
Data, and Information Service
Assistant Administrator for Oceanic and Atmospheric Research
Deputy Assistant Administrator for Programs & Administration (Oceanic
and Atmospheric Research)
Assistant Administrator for Program, Planning and Integration
Chief Administrative Officer
Chief Financial Officer
Chief Information Officer
Director, Acquisition and Grants Office
Deputy Director, Acquisition and Grants Office
Head of Contracting Offices, Acquisition and Grants Office
Director, Workforce Management Office
Senior Advisor for International Affairs
Director, Office of Legislation & Intergovernmental Affairs
Freedom of Information Officer
NATIONAL TECHNICAL INFORMATION SERVICE
Director
Deputy Director
Chief Financial Officer/Associate Director for Finance and
Administration
NATIONAL TELECOMMUNICATIONS AND INFORMATION ADMINISTRATION
Deputy Assistant Secretary
Chief Counsel
Deputy Chief Counsel
[79 FR 62567, Oct. 20, 2014, as amended at 86 FR 21935, Apr. 26, 2021]
Sec. Appendix C to Part 4--Systems of Records Noticed by Other Federal
Agencies and Applicable to Records of the Department and Applicability
of This Part Thereto
------------------------------------------------------------------------
Category of records Other Federal Agency
------------------------------------------------------------------------
Federal Personnel Records........ Office of Personnel Management. \1\
Federal Employee Compensation Act Department of Labor. \2\
Program Program.
Equal Employment Opportunity Equal Employment Opportunity
Appeal Complaints. Commission. \3\
Formal Complaints/Appeals of Merit Systems Protection Board. \4\
Adverse Personnel Actions.
------------------------------------------------------------------------
\1\ The provisions of this part do not apply to these records covered by
notices of systems of records published by the Office of Personnel
Management for all agencies. The regulations of OPM alone apply.
\2\ The provisions of this part apply only initially to these records
covered by notices of systems of records published by the U.S.
Department of Labor for all agencies. The regulations of that
Department attach at the point of any denial for access or for
correction or amendment.
[[Page 61]]
\3\ The provisions of this part do not apply to these records covered by
notices of systems of records published by the Equal Employment
Opportunity Commission for all agencies. The regulations of the
Commission alone apply.
\4\ The provisions of this part do not apply to these records covered by
notices of systems of records published by the Merit Systems
Protection Board for all agencies. The regulations of the Board alone
apply.
PART 4a_CLASSIFICATION, DECLASSIFICATION, AND PUBLIC AVAILABILITY OF
NATIONAL SECURITY INFORMATION
Sec.
4a.1 General.
4a.2 Director for Security.
4a.3 Classification levels.
4a.4 Classification authority.
4a.5 Duration of classification.
4a.6 General.
4a.7 Mandatory review for declassification.
4a.8 Access to classified information by individuals outside the
Government.
Authority: E.O. 13526; 75 FR 707, January 5, 2010 (as corrected at
75 FR 1013, January 8, 2010).
Source: 66 FR 65650, Dec. 20, 2001, unless otherwise noted.
Sec. 4a.1 General.
Executive Order 13526 provides the only basis for classifying
information within the Department of Commerce (Department), except as
provided in the Atomic Energy Act of 1954, as amended. The Department's
policy is to make information concerning its activities available to the
public, consistent with the need to protect the national defense and
foreign relations of the United States. Accordingly, security
classification shall be applied only to protect the national security.
[85 FR 35375, June 10, 2020]
Sec. 4a.2 Director for Security.
The Director for Security is responsible for implementing and
ensuring compliance with E.O. 13526 and this part.
[85 FR 35375, June 10, 2020]
Sec. 4a.3 Classification levels.
Information may be classified as national security information by a
designated original classifier of the Department if it is determined the
information concerns one or more of the categories described in section
1.4 of E.O. 13526. The levels established in section 1.2 of E.O. 13526
(Top Secret, Secret, and Confidential) are the only terms that may be
applied to national security information. Except as provided by statute,
no other terms shall be used within the Department for the three
classification levels.
[85 FR 35375, June 10, 2020]
Sec. 4a.4 Classification authority.
(a) Authority to originally classify information as Secret or
Confidential may be exercised only by the Secretary of Commerce and by
officials to whom such authority is specifically delegated. No official
of the Department is authorized to originally classify information as
Top Secret.
(b) In accordance with section 1.3(c)(1) of E.O. 13526, delegations
of original classification authority shall be limited to the minimum
required to administer E.O. 13526. The Secretary of Commerce shall
ensure that designated subordinate officials have a demonstrable and
continuing need to exercise delegated original classification authority.
(c) In accordance with section 1.3(c)(4) of E.O. 13526, each
delegation of original classification authority shall be in writing and
the authority shall not be redelegated except as provided in E.O. 13526.
(d) In accordance with section 1.3(c)(4) of E.O. 13526, each
delegation shall identify the official by name or position.
(e) In accordance with section 1.3(c)(5) of E.O. 13526, delegations
of original classification authority shall be reported or made available
by name or position to the Director of the Information Security
Oversight Office in the National Archives and Records Administration.
(f) In accordance with section 1.3(d) of E.O. 13526, all original
classification authorities and their designates shall receive training
in proper classification (including the avoidance of over-
classification) and declassification as
[[Page 62]]
provided in E.O. 13526 and its implementing directives at least once a
calendar year.
[85 FR 35375, June 10, 2020]
Sec. 4a.5 Duration of classification.
(a) Information shall remain classified no longer than ten years
from the date of its original classification, unless, in accordance with
section 1.5(b) of E.O. 13526, the original classification authority
otherwise determines that the sensitivity of the information requires
that it be marked for declassification for up to 25 years from the date
of the original decision.
(b) For Department of Commerce originally classified information
marked for an indefinite duration which contains incomplete
declassification instructions, or lacks them entirely:
(1) The information shall be declassified in accordance with E.O.
13526 as soon as it no longer meets the standards for classification
under E.O. 13526, or
(2) if the standards for classification under E.O. 13526 are met,
the information shall be declassified after 10 years from the date of
the original classification, unless the original classification
authority determines that the sensitivity of the information requires
that it remain classified for up to 25 years from the date of the
original classification, as provided in section 1.5.(b) of E.O. 13526.
[85 FR 35375, June 10, 2020]
Sec. 4a.6 General.
National security information over which the Department exercises
final classification jurisdiction shall be declassified or downgraded as
soon as national security considerations permit. If information is
declassified, it may continue to be exempt from public disclosure by the
Freedom of Information Act (5 U.S.C. 552) or other applicable law.
Sec. 4a.7 Mandatory review for declassification.
(a) Requests. Classified information under the jurisdiction of the
Department is subject to review for declassification in accordance with
32 CFR 2001.33, upon receipt of a written request that describes the
information with sufficient specificity to locate it with a reasonable
amount of effort. Requests must be submitted to the Director for
Security, U.S. Department of Commerce, 1401 Constitution Avenue NW,
Washington, DC 20230.
(b) Exemptions. The following are exempt from mandatory review for
declassification:
(1) Information that has been reviewed for declassification within
the past two years;
(2) Information that is the subject of pending litigation;
(3) Information originated by the incumbent President, the incumbent
President's White House Staff, committees, commissions, or boards
appointed by the incumbent President, or other entities within the
Executive Office of the President that solely advise and assist the
incumbent President; and
(4) Information specifically exempt from such review by law.
(c) Processing requirements. (1) For requests for review of
classified information not received from the National Archives and
Records Administration, the Director for Security, or their designate,
shall acknowledge receipt of the request directly to the requester. If a
request does not adequately describe the information sought in
accordance with paragraph (a) of this section, the requester shall be
notified that unless additional information is provided, no further
action will be taken. The request shall be forwarded to the component
that originated the information or that has primary interest in the
subject matter. The component assigned action shall review the
information in accordance with Sec. 4a.7(c)(2) through (4) within
twenty working days.
(2) The component assigned action shall determine whether, under the
declassification provisions of the U.S. Department of Commerce's Manual
of Security, the entire document or portions thereof may be
declassified. Declassification of the information shall be
[[Page 63]]
accomplished by a designated declassification authority. Upon
declassification, the information shall be remarked. If the information
is not partially or entirely declassified, the reviewing official shall
provide the reasons for denial by citing the applicable provisions of
E.O. 13526. If the classification is a derivative decision based on
classified source material of another Federal agency, the component
shall provide the information to the originator for review.
(3) If information is declassified, the component shall also
determine whether it is releasable under the Freedom of Information Act
(FOIA) as amended (5 U.S.C. 552). If the information is not releasable,
the component shall advise the Director for Security that the
information has been declassified but that it is exempt from disclosure,
citing the appropriate exemption of the FOIA as amended.
(4) If the request for declassification is denied in whole or in
part, the requester shall be notified of the right to appeal the
determination within sixty calendar days and of the procedures for such
an appeal. If declassified information remains exempt from disclosure
under the FOIA as amended, the requester shall be advised of the
appellate procedures under that law.
(d) Fees. If the request requires services for which fees are
chargeable, the component assigned action shall calculate the
anticipated fees to be charged, and may be required to ascertain the
requester's willingness to pay the allowable charges as a precondition
to taking further action on the request, in accordance with Department
of Commerce rules promulgated under 5 U.S.C. 552(a)(4)(A) of the Freedom
of Information Act as amended and Department of Commerce rules
promulgated under 5 U.S.C. 552a(f)(5) of the Privacy Act of 1974 (5
U.S.C. 552a).
(e) Right of appeal. (1) A requester may appeal to the Director for
Security when information requested under this section is not completely
declassified and released after expiration of the applicable time
limits. Within thirty working days (i.e., excluding Saturdays, Sundays,
and legal public holidays) of receipt of a written appeal:
(i) The Director for Security shall determine whether continued
classification of the requested information is required in whole or in
part;
(ii) If information is declassified, determine whether it is
releasable under the Freedom of Information Act as amended; and
(iii) Notify the requester of his or her determination, making
available any information determined to be releasable. If continued
classification is required under the provisions of the Department of
Commerce Manual for Security, the Director for Security shall notify the
requester of his or her determination, including the reasons for denial
based on applicable provisions of E.O. 13526, and of the right of final
appeal to the Interagency Security Classification Appeals Panel.
(2) During the declassification review of information under appeal
the Director for Security may overrule previous determinations in whole
or in part if continued protection in the interest of national security
is no longer required. If the Director for Security determines that the
information no longer requires classification, it shall be declassified
and, unless it is otherwise exempt from disclosure under the Freedom of
Information Act as amended, released to the requester. The Director for
Security shall advise the original reviewing component of his or her
decision.
[66 FR 65650, Dec. 20, 2001, as amended at 85 FR 35376, June 10, 2020]
Sec. 4a.8 Access to classified information by individuals outside the
Government.
(a) Industrial, Educational, and Commercial Entities. Certain
bidders, contractors, grantees, educational, scientific, or industrial
organizations may receive classified information under the procedures
prescribed by the National Industrial Security Program Operating Manual.
(b) Access by historical researchers and former Presidential
appointees. An individual engaged in historical research projects or who
has previously occupied a policy-making position to which he or she was
appointed by the President may be authorized access to classified
information for a limited period,
[[Page 64]]
provided that the head of the component with jurisdiction over the
information:
(1) Determines in writing that:
(i) Access is consistent with national security;
(ii) The individual has a compelling need for access; and
(iii) The Department's best interest is served by providing access;
(2) Obtains in writing from the individual:
(i) Consent to a review by the Department of any resultant notes and
manuscripts for the purpose of determining that no classified
information is contained in them; and
(ii) Agreement to safeguard classified information in accordance
with applicable requirements; and
(iii) A detailed description of the individual's research;
(3) Ensures that custody of classified information is maintained at
a Department facility;
(4) Limits access granted to former Presidential appointees to items
that the individual originated, reviewed, signed, or received while
serving as a Presidential appointee; and
(5) Receives from the Director for Security:
(i) A determination that the individual is trustworthy; and
(ii) Approval to grant access to the individual.
(c) An individual seeking access should describe the information
with sufficient specificity to locate and compile it with a reasonable
amount of effort. If the access requested by a historical researcher or
former Presidential appointee requires services for which fees are
chargeable, the responsible component shall notify the individual in
advance.
(d) This section applies only to classified information originated
by the Department, or to information in the sole custody of the
Department. Otherwise, the individual shall be referred to the
classifying agency.
[66 FR 65650, Dec. 20, 2001, as amended at 85 FR 35376, June 10, 2020]
PART 5_OPERATION OF VENDING STANDS--Table of Contents
Sec.
5.1 Purpose.
5.2 Policy.
5.3 Assignment of functions and authorities.
5.4 Permits.
5.5 Vending machines.
5.6 Appeals.
5.7 Reports.
5.8 Approval of regulations.
Authority: Sec. 4, 68 Stat. 663; 20 U.S.C. 107.
Source: 28 FR 7772, July 31, 1963, unless otherwise noted.
Sec. 5.1 Purpose.
This part prescribes regulations to assure the granting of
preference to blind persons licensed under the provisions of the
Randolph-Sheppard Vending Stand Act (49 Stat. 1559, as amended by the
act of August 3, 1954, 68 Stat. 663; 20 U.S.C. 107) for the operation of
vending stands (which term as used in this order includes vending
machines).
Sec. 5.2 Policy.
(a) The Department adopts the Federal policy announced in the
Randolph-Sheppard Vending Stand Act, as amended, to provide blind
persons with remunerative employment to enlarge the economic
opportunities of the blind and to stimulate the blind to greater efforts
in striving to make themselves self-supporting.
(b) It shall be the policy of the Department to authorize blind
persons licensed under the provisions of the Randolph-Sheppard Vending
Stand Act, as amended to operate vending stands without any charge for
space or necessary utilities on properties owned and occupied by the
Department or on which the Department controls maintenance, operation,
and protection.
(c) The Department will cooperate with the Department of Education
and State licensing agencies in making surveys to determine whether and
where vending stands may be properly and profitably operated by licensed
blind persons.
(d) The application of a State licensing agency for a permit may be
denied or revoked if it is determined that the
[[Page 65]]
interests of the United States would be adversely affected or the
Department would be unduly inconvenienced by the issuance of a permit or
its continuance.
(e) Disagreements concerning the denial, revocation, or modification
of a permit may be appealed by the State licensing agency as set forth
in Sec. 5.6.
[28 FR 7772, July 31, 1963, as amended at 55 FR 53489, Dec. 31, 1990]
Sec. 5.3 Assignment of functions and authorities.
(a) The Director, Office of Administrative Services, shall carry out
the Department's responsibility to provide, in accordance with
applicable law and regulation, the maximum opportunity for qualified
blind persons to operate vending stands.
(b) Subject to instructions issued by the Director, Office of
Administrative Services, the head of each primary organization unit
shall be responsible for implementing this program within his area.
(c) The Director, Office of Administrative Services for the primary
organization units located in the main Commerce building and the head of
each other primary organization unit will make determinations with
respect to the terms of permits including the location and operation of
vending stands and machines in their respective areas.
(d) Unresolved differences and significant violations of the terms
of permits shall be reported to the State licensing agency. Where no
corrective action is forthcoming, the matter shall be referred to the
Office of Vocational Rehabilitation, Department of Education for
consideration prior to further action.
[28 FR 7772, July 31, 1963, as amended at 55 FR 53489, Dec. 31, 1990]
Sec. 5.4 Permits.
(a) No permit, lease, or other arrangement for the operation of a
vending stand on property under control of the Department shall be
entered into or renewed without first consulting the State licensing
agency or equivalent authority.
(b) The permit shall be conditioned upon the vending stand meeting
specified standards, including standards relating to appearance, safety,
sanitation, maintenance, and efficiency of operation. Due regard shall
be given to laws and regulations for the public welfare which are
applicable, or would be applicable, if the property involved was not
owned or controlled by the Federal Government.
(c) The permit shall specify the types of articles specified in
section 2(a)(4) of the Act as amended (newspapers, periodicals,
confections, tobacco products, articles dispensed automatically or in
containers or wrappings in which they are placed before delivery to the
vending stand). Such other related articles as the State licensing
agency asks to be included shall be permitted to be sold, unless such
factors as inadequacy of available facilities, safety, health, public
welfare, or legal requirements demand otherwise.
(d) The permit shall contain a provision that alterations made by
other than the United States shall be approved by and conducted under
the supervision of an appropriate official of the Department or the
primary organization unit concerned.
(e) The permit may contain other reasonable conditions necessary for
the protection of the Government and prospective patrons of the stand.
(f) The permit shall describe the location of the stand proper and
the location of any vending machines which are operated in conjunction
with it.
Sec. 5.5 Vending machines.
(a) The income from any vending machines which are located within
reasonable proximity to and are in direct competition with a vending
stand for which a permit has been issued under these regulations shall
be assigned to the operator of such stand.
(b) If a vending machine vends articles of a type authorized by the
permit and is so located that it attracts customers who would otherwise
patronize the vending stand, such machine shall be deemed to be in
reasonable proximity to and direct competition with the stand.
Sec. 5.6 Appeals.
(a) In any instance where the Department of Commerce official as
provided
[[Page 66]]
in Sec. 5.3(c) and the State licensing agency fail to reach agreement
concerning the granting, revocation, or modification of a permit, the
location, method of operation, assignment of proceeds, or other terms of
a permit (including articles which may be sold), the State licensing
agency shall be notified in writing by the Commerce official concerned
that it has the right to appeal such disagreements, within 30 days of
the notice, to the Assistant Secretary for Administration for
investigation and final decision.
(b) Upon receipt of a timely appeal the Assistant Secretary for
Administration will cause a full investigation to be made. The State
licensing agency shall be given an opportunity to present information
pertinent to the facts and circumstances of the case. The complete
investigation report including the recommendations of the investigating
officer shall be submitted to the Assistant Secretary for Administration
within 60 days from the date of the appeal.
(c) The Assistant Secretary for Administration will render a final
decision on the appeal within 90 days of the date of appeal.
(d) The State licensing agency will be informed of the final
decision on its appeal. Copies of the decision will be forwarded to the
Department of Commerce official concerned and the Department of
Education.
[28 FR 7772, July 31, 1963, as amended at 55 FR 53489, Dec. 31, 1990]
Sec. 5.7 Reports.
No later than fifteen days following the end of each fiscal year the
responsible officials set forth in Sec. 5.3(c) shall forward to the
Director, Office of Administrative Services a report on activities under
this order. The report shall include:
(a) The number of applications, including requests for installations
initiated by the Department, for vending stands received from State
licensing agencies;
(b) The number of such requests accepted or approved;
(c) The number denied, on which no appeal was made and the number
denied on which an appeal was made; and
(d) The number and status of any requests still pending.
Sec. 5.8 Approval of regulations.
The provisions of this part have been approved by the Director,
Bureau of the Budget, pursuant to Executive Order 10604, of April 22,
1955.
PART 6_CIVIL MONETARY PENALTY ADJUSTMENTS FOR INFLATION (EFF. until 01-15-24)-
-Table of Contents
Sec.
6.1 Definitions.
6.2 Purpose and scope.
6.3 Adjustments for inflation to civil monetary penalties.
6.4 Effective date of adjustments for inflation to civil monetary
penalties.
6.5 Subsequent annual adjustments for inflation to civil monetary
penalties.
Authority: Pub. L. 101-410, 104 Stat. 890 (28 U.S.C. 2461 note);
Pub. L. 104-134, 110 Stat. 1321 (31 U.S.C. 3701 note); Sec. 701 of Pub.
L. 114-74, 129 Stat. 599 (28 U.S.C. 1 note; 28 U.S.C. 2461 note).
Source: 88 FR 4, Jan. 3, 2023, unless otherwise noted.
Effective Date Note: At 88 FR 89301, 2023, Dec. 27, 2023, part 6 was
revised, effective Jan. 15, 2024. For the convenience of the user, the
new part 6 follows the text of this part.
Sec. 6.1 Definitions.
(a) The Department of Commerce means the United States Department of
Commerce.
(b) Civil Monetary Penalty means any penalty, fine, or other
sanction that:
(1) Is for a specific monetary amount as provided by Federal law, or
has a maximum amount provided for by Federal law; and
(2) Is assessed or enforced by an agency pursuant to Federal law;
and
(3) Is assessed or enforced pursuant to an administrative proceeding
or a civil action in the Federal courts.
Sec. 6.2 Purpose and scope.
The purpose of this part is to make adjustments for inflation to
civil monetary penalties, as required by the Federal Civil Penalties
Inflation Adjustment Act of 1990 (Pub. L. 101-410; 28 U.S.C. 2461), as
amended by the Debt Collection Improvement Act of 1996 (Pub. L. 104-134)
and the Federal Civil
[[Page 67]]
Penalties Inflation Adjustment Act Improvements Act of 2015 (Section 701
of Pub. L. 114-74), of each civil monetary penalty provided by law
within the jurisdiction of the United States Department of Commerce
(Department of Commerce).
Sec. 6.3 Adjustments for inflation to civil monetary penalties.
The civil monetary penalties provided by law within the jurisdiction
of the Department of Commerce, as set forth in paragraphs (a) through
(f) of this section, are hereby adjusted for inflation in accordance
with the Federal Civil Penalties Inflation Adjustment Act of 1990, as
amended, from the amounts of such civil monetary penalties that were in
effect as of January 15, 2022, to the amounts of such civil monetary
penalties, as thus adjusted. The year stated in parenthesis represents
the year that the civil monetary penalty was last set by law or adjusted
by law (excluding adjustments for inflation).
(a) United States Department of Commerce. (1) 31 U.S.C. 3802(a)(1),
Program Fraud Civil Remedies Act of 1986 (1986), violation, maximum from
$12,537 to $13,508.
(2) 31 U.S.C. 3802(a)(2), Program Fraud Civil Remedies Act of 1986
(1986), violation, maximum from $12,537 to $13,508.
(3) 31 U.S.C. 3729(a)(1)(G), False Claims Act (1986); violation,
minimum from $12,537 to $13,508; maximum from $25,076 to $27,018.
(b) Bureau of Economic Analysis. 22 U.S.C. 3105(a), International
Investment and Trade in Services Act (1990); failure to furnish
information, minimum from $5,179 to $5,580; maximum from $51,796 to
$55,808.
(c) Bureau of Industry and Security. (1) 15 U.S.C. 5408(b)(1),
Fastener Quality Act (1990), violation, maximum from $51,796 to $55,808.
(2) 22 U.S.C. 6761(a)(1)(A), Chemical Weapons Convention
Implementation Act (1998), violation, maximum from $42,163 to $45,429.
(3) 22 U.S.C. 6761(a)(l)(B), Chemical Weapons Convention
Implementation Act (1998), violation, maximum from $8,433 to $9,086.
(4) 50 U.S.C. 1705(b), International Emergency Economic Powers Act
(2007), violation, maximum from $330,947 to $356,579.
(5) 22 U.S.C. 8142(a), United States Additional Protocol
Implementation Act (2006), violation, maximum from $34,265 to $36,919.
(6) 50 U.S.C. 4819, Export Controls Act of 2018 (2018), violation,
maximum from $328,121 to $353,534.
(d) Census Bureau. (1) 13 U.S.C. 304, Collection of Foreign Trade
Statistics (2002), each day's delinquency of a violation; total of not
to exceed maximum per violation, from $1,525 to $1,643; maximum per
violation, from $15,256 to $16,438.
(2) 13 U.S.C. 305(b), Collection of Foreign Trade Statistics (2002),
violation, maximum from $15,256 to $16,438.
(e) International Trade Administration. (1) 19 U.S.C. 81s, Foreign
Trade Zone (1934), violation, maximum from $3,198 to $3,446.
(2) 19 U.S.C. 1677f(f)(4), U.S.-Canada Free Trade Agreement
Protective Order (1988), violation, maximum from $230,107 to $247,929.
(f) National Oceanic and Atmospheric Administration. (1) 51 U.S.C.
60123(a), Land Remote Sensing Policy Act of 2010 (2010), violation,
maximum from $12,646 to $13,625.
(2) 51 U.S.C. 60148(c), Land Remote Sensing Policy Act of 2010
(2010), violation, maximum from $12,646 to $13,625.
(3) 16 U.S.C. 773f(a), Northern Pacific Halibut Act of 1982 (2007),
violation, maximum from $264,759 to $285,265.
(4) 16 U.S.C. 783, Sponge Act (1914), violation, maximum from $1,891
to $2,037.
(5) 16 U.S.C. 957(d), (e), and (f), Tuna Conventions Act of 1950
(1962):
(i) Violation of 16 U.S.C. 957(a), maximum from $94,487 to $101,805.
(ii) Subsequent violation of 16 U.S.C. 957(a), maximum from $203,511
to $219,273.
(iii) Violation of 16 U.S.C. 957(b), maximum from $3,198 to $3,446.
(iv) Subsequent violation of 16 U.S.C. 957(b), maximum from $18,898
to $20,362.
(v) Violation of 16 U.S.C. 957(c), maximum from $407,024 to
$438,548.
(6) 16 U.S.C. 957(i), Tuna Conventions Act of 1950,\1\ violation,
maximum from $207,183 to $223,229.
[[Page 68]]
(7) 16 U.S.C. 959, Tuna Conventions Act of 1950,\2\ violation,
maximum from $207,183 to $223,229.
(8) 16 U.S.C. 971f(a), Atlantic Tunas Convention Act of 1975,\3\
violation, maximum from $207,183 to $223,229.
(9) 16 U.S.C. 973f(a), South Pacific Tuna Act of 1988 (1988),
violation, maximum from $575,266 to $619,820.
(10) 16 U.S.C. 1174(b), Fur Seal Act Amendments of 1983 (1983),
violation, maximum from $27,384 to $29,505.
(11) 16 U.S.C. 1375(a)(1), Marine Mammal Protection Act of 1972
(1972), violation, maximum from $31,980 to $34,457.
(12) 16 U.S.C. 1385(e), Dolphin Protection Consumer Information
Act,\4\ violation, maximum from $207,183 to $223,229.
(13) 16 U.S.C. 1437(d)(1), National Marine Sanctuaries Act (1992),
violation, maximum from $195,054 to $210,161.
(14) 16 U.S.C. 1540(a)(1), Endangered Species Act of 1973:
(i) Violation as specified (1988), maximum from $57,527 to $61,982.
(ii) Violation as specified (1988), maximum from $27,612 to $29,751.
(iii) Otherwise violation (1978), maximum from $1,891 to $2,037.
(15) 16 U.S.C. 1858(a), Magnuson-Stevens Fishery Conservation and
Management Act (1990), violation, maximum from $207,183 to $223,229.
(16) 16 U.S.C. 2437(a), Antarctic Marine Living Resources Convention
Act of 1984,\5\ violation, maximum from $207,183 to $223,229.
(17) 16 U.S.C. 2465(a), Antarctic Protection Act of 1990,\6\
violation, maximum from $207,183 to $223,229.
(18) 16 U.S.C. 3373(a), Lacey Act Amendments of 1981 (1981):
(i) 16 U.S.C. 3373(a)(1), violation, maximum from $29,614 to
$31,908.
(ii) 16 U.S.C. 3373(a)(2), violation, maximum from $740 to $797.
(19) 16 U.S.C. 3606(b)(1), Atlantic Salmon Convention Act of
1982,\7\ violation, maximum from $207,183 to $223,229.
(20) 16 U.S.C. 3637(b), Pacific Salmon Treaty Act of 1985,\8\
violation, maximum from $207,183 to $223,229.
(21) 16 U.S.C. 4016(b)(1)(B), Fish and Seafood Promotion Act of 1986
(1986); violation, minimum from $1,253 to $1,350; maximum from $12,537
to $13,508.
(22) 16 U.S.C. 5010, North Pacific Anadromous Stocks Act of 1992,\9\
violation, maximum from $207,183 to $223,229.
(23) 16 U.S.C. 5103(b)(2), Atlantic Coastal Fisheries Cooperative
Management Act,\10\ violation, maximum from $207,183 to $223,229.
(24) 16 U.S.C. 5154(c)(1), Atlantic Striped Bass Conservation
Act,\11\ violation, maximum from $207,183 to $223,229.
(25) 16 U.S.C. 5507(a), High Seas Fishing Compliance Act of 1995
(1995), violation, maximum from $179,953 to $193,890.
(26) 16 U.S.C. 5606(b), Northwest Atlantic Fisheries Convention Act
of 1995,\12\ violation, maximum from $207,183 to $223,229.
(27) 16 U.S.C. 6905(c), Western and Central Pacific Fisheries
Convention Implementation Act,\13\ violation, maximum from $207,183 to
$223,229.
(28) 16 U.S.C. 7009(c) and (d), Pacific Whiting Act of 2006,\14\
violation, maximum from $207,183 to $223,229.
(29) 22 U.S.C. 1978(e), Fishermen's Protective Act of 1967 (1971):
(i) Violation, maximum from $31,980 to $34,457.
(ii) Subsequent violation, maximum from $94,487 to $101,805.
(30) 30 U.S.C. 1462(a), Deep Seabed Hard Mineral Resources Act
(1980), violation, maximum, from $81,540 to $87,855.
(31) 42 U.S.C. 9152(c), Ocean Thermal Energy Conversion Act of 1980
(1980), violation, maximum from $81,540 to $87,855.
(32) 16 U.S.C. 1827a, Billfish Conservation Act of 2012,\15\
violation, maximum from $207,183 to $223,229.
(33) 16 U.S.C. 7407(b), Port State Measures Agreement Act of
2015,\16\ violation, maximum from $207,183 to $223,229.
(34) 16 U.S.C. 1826g(f), High Seas Driftnet Fishing Moratorium
Protection Act,\17\ violation, maximum from $207,183 to $223,229.
(35) 16 U.S.C. 7705, Ensuring Access to Pacific Fisheries Act,\18\
violation, maximum from $207,183 to $223,229.
(36) 16 U.S.C. 7805, Ensuring Access to Pacific Fisheries Act,\19\
violation, maximum from $207,183 to $223,229.
[[Page 69]]
(g) National Technical Information Service. 42 U.S.C. 1306c(c),
Bipartisan Budget Act of 2013 (2013), violation, minimum from $1,075 to
$1,158; maximum total penalty on any person for any calendar year,
excluding willful or intentional violations, from $268,694 to $289,504.
(h) Office of the Under Secretary for Economic Affairs. 15 U.S.C.
113, Concrete Masonry Products Research, Education, and Promotion Act of
2018, (newly reported penalty), violation, maximum $5,000.
\1\ This National Oceanic and Atmospheric Administration maximum
civil monetary penalty, as prescribed by law, is the maximum civil
monetary penalty per 16 U.S.C. 1858(a), Magnuson-Stevens Fishery
Conservation and Management Act civil monetary penalty (paragraph
(f)(15) of this section).
\2\ See footnote 1.
\3\ See footnote 1.
\4\ See footnote 1.
\5\ See footnote 1.
\6\ See footnote 1.
\7\ See footnote 1.
\8\ See footnote 1.
\9\ See footnote 1.
\10\ See footnote 1.
\11\ See footnote 1.
\12\ See footnote 1.
\13\ See footnote 1.
\14\ See footnote 1.
\15\ See footnote 1.
\16\ See footnote 1.
\17\ See footnote 1.
\18\ See footnote 1.
\19\ See footnote 1.
Sec. 6.4 Effective date of adjustments for inflation to civil monetary
penalties.
The Department of Commerce's 2023 adjustments for inflation made by
Sec. 6.3, of the civil monetary penalties there specified, are
effective on January 15, 2023, and said civil monetary penalties, as
thus adjusted by the adjustments for inflation made by Sec. 6.3, apply
only to those civil monetary penalties, including those whose associated
violation predated such adjustment, which are assessed by the Department
of Commerce after the effective date of the new civil monetary penalty
level, and before the effective date of any future adjustments for
inflation to civil monetary penalties thereto made subsequent to January
15, 2023 as provided in Sec. 6.5.
Sec. 6.5 Subsequent annual adjustments for inflation to civil monetary
penalties.
The Secretary of Commerce or his or her designee by regulation shall
make subsequent adjustments for inflation to the Department of
Commerce's civil monetary penalties annually, which shall take effect
not later than January 15, notwithstanding section 553 of title 5,
United States Code.
Effective Date Note: At 88 FR 89301, Dec. 27, 2023, part 6 was
revised, effective Jan. 15, 2024. For the convenience of the user, the
added and revised text is set forth as follows:
PART 6_CIVIL MONETARY PENALTY ADJUSTMENTS FOR INFLATION (EFF. 01-15-24)
Sec.
6.1 Definitions.
6.2 Purpose and scope.
6.3 Adjustments for inflation to civil monetary penalties.
6.4 Effective date of adjustments for inflation to civil monetary
penalties.
6.5 Subsequent annual adjustments for inflation to civil monetary
penalties.
Authority: Pub. L. 101-410, 104 Stat. 890 (28 U.S.C. 2461 note);
Pub. L. 104-134, 110 Stat. 1321 (31 U.S.C. 3701 note); Sec. 701 of Pub.
L. 114-74, 129 Stat. 599 (28 U.S.C. 1 note; 28 U.S.C. 2461 note).
Source: 88 FR 89301, Dec. 27, 2023, unless otherwise noted.
Sec. 6.1 Definitions.
(a) The Department of Commerce means the United States Department of
Commerce.
(b) Civil Monetary Penalty means any penalty, fine, or other
sanction that:
(1) Is for a specific monetary amount as provided by Federal law, or
has a maximum amount provided for by Federal law; and
(2) Is assessed or enforced by an agency pursuant to Federal law;
and
(3) Is assessed or enforced pursuant to an administrative proceeding
or a civil action in the Federal courts.
Sec. 6.2 Purpose and scope.
The purpose of this part is to make adjustments for inflation to
civil monetary penalties, as required by the Federal Civil Penalties
Inflation Adjustment Act of 1990 (Pub. L. 101-410; 28 U.S.C. 2461), as
amended by the Debt Collection Improvement Act of 1996 (Pub. L. 104-134)
and the Federal Civil Penalties Inflation Adjustment Act Improvements
Act of 2015 (Section 701 of Pub. L. 114-74), of each civil monetary
penalty provided by law within the jurisdiction of the United
[[Page 70]]
States Department of Commerce (Department of Commerce).
Sec. 6.3 Adjustments for inflation to civil monetary penalties.
The civil monetary penalties provided by law within the jurisdiction
of the Department of Commerce, as set forth in paragraphs (a) through
(f) of this section, are hereby adjusted for inflation in accordance
with the Federal Civil Penalties Inflation Adjustment Act of 1990, as
amended, from the amounts of such civil monetary penalties that were in
effect as of January 15, 2023, to the amounts of such civil monetary
penalties, as thus adjusted. The year stated in parenthesis represents
the year that the civil monetary penalty was last set by law or adjusted
by law (excluding adjustments for inflation).
(a) United States Department of Commerce. (1) 31 U.S.C. 3802(a)(1),
Program Fraud Civil Remedies Act of 1986 (1986), violation, maximum from
$13,508 to $13,946.
(2) 31 U.S.C. 3802(a)(2), Program Fraud Civil Remedies Act of 1986
(1986), violation, maximum from $13,508 to $13,946.
(3) 31 U.S.C. 3729(a)(1)(G), False Claims Act (1986); violation,
minimum from $13,508 to $13,946; maximum from $27,018 to $27,894.
(b) Bureau of Economic Analysis. 22 U.S.C. 3105(a), International
Investment and Trade in Services Act (1990); failure to furnish
information, minimum from $5,580 to $5,761; maximum from $55,808 to
$57,617.
(c) Bureau of Industry and Security. (1) 15 U.S.C. 5408(b)(1),
Fastener Quality Act (1990), violation, maximum from $55,808 to $57,617.
(2) 22 U.S.C. 6761(a)(1)(A), Chemical Weapons Convention
Implementation Act (1998), violation, maximum from $45,429 to $46,901.
(3) 22 U.S.C. 6761(a)(l)(B), Chemical Weapons Convention
Implementation Act (1998), violation, maximum from $9,086 to $9,380.
(4) 50 U.S.C. 1705(b), International Emergency Economic Powers Act
(2007), violation, maximum from $356,579 to $368,136.
(5) 22 U.S.C. 8142(a), United States Additional Protocol
Implementation Act (2006), violation, maximum from $36,919 to $38,116.
(6) 50 U.S.C. 4819, Export Controls Act of 2018 (2018), violation,
maximum from $353,534 to $364,992
(d) Census Bureau. (1) 13 U.S.C. 304, Collection of Foreign Trade
Statistics (2002), each day's delinquency of a violation; total of not
to exceed maximum per violation, from $1,643 to $1,696; maximum per
violation, from $16,438 to $16,971.
(2) 13 U.S.C. 305(b), Collection of Foreign Trade Statistics (2002),
violation, maximum from $16,438 to $16,971.
(e) International Trade Administration. (1) 19 U.S.C. 81s, Foreign
Trade Zone (1934), violation, maximum from $3,446 to $3,558.
(2) 19 U.S.C. 1677f(f)(4), U.S.-Canada Free Trade Agreement
Protective Order (1988), violation, maximum from $247,929 to $255,964.
(f) National Oceanic and Atmospheric Administration. (1) 51 U.S.C.
60123(a), Land Remote Sensing Policy Act of 2010 (2010), violation,
maximum from $13,625 to $14,067.
(2) 51 U.S.C. 60148(c), Land Remote Sensing Policy Act of 2010
(2010), violation, maximum from $13,625 to $14,067.
(3) 16 U.S.C. 773f(a), Northern Pacific Halibut Act of 1982 (2007),
violation, maximum from $285,265 to $294,510.
(4) 16 U.S.C. 783, Sponge Act (1914), violation, maximum from $2,037
to $2,103.
(5) 16 U.S.C. 957(d), (e), and (f), Tuna Conventions Act of 1950
(1962):
(i) Violation of 16 U.S.C. 957(a), maximum from $101,805 to
$105,105.
(ii) Subsequent violation of 16 U.S.C. 957(a), maximum from $219,273
to $226,380.
(iii) Violation of 16 U.S.C. 957(b), maximum from $3,446 to $3,558.
(iv) Subsequent violation of 16 U.S.C. 957(b), maximum from $20,362
to $21,022.
(v) Violation of 16 U.S.C. 957(c), maximum from $438,548 to
$452,761.
(6) 16 U.S.C. 957(i), Tuna Conventions Act of 1950,\1\ violation,
maximum from $223,229 to $230,464.
---------------------------------------------------------------------------
\1\ This National Oceanic and Atmospheric Administration maximum
civil monetary penalty, as prescribed by law, is the maximum civil
monetary penalty per 16 U.S.C. 1858(a), Magnuson-Stevens Fishery
Conservation and Management Act civil monetary penalty (paragraph
(f)(15) of this section).
---------------------------------------------------------------------------
(7) 16 U.S.C. 959, Tuna Conventions Act of 1950,\2\ violation,
maximum from $223,229 to $230,464.
---------------------------------------------------------------------------
\2\ See footnote 1.
---------------------------------------------------------------------------
(8) 16 U.S.C. 971f(a), Atlantic Tunas Convention Act of 1975,\3\
violation, maximum from $223,229 to $230,464.
---------------------------------------------------------------------------
\3\ See footnote 1.
---------------------------------------------------------------------------
(9) 16 U.S.C. 973f(a), South Pacific Tuna Act of 1988 (1988),
violation, maximum from $619,820 to $639,908.
(10) 16 U.S.C. 1174(b), Fur Seal Act Amendments of 1983 (1983),
violation, maximum from $29,505 to $30,461.
(11) 16 U.S.C. 1375(a)(1), Marine Mammal Protection Act of 1972
(1972), violation, maximum from $34,457 to $35,574.
(12) 16 U.S.C. 1385(e), Dolphin Protection Consumer Information
Act,\4\ violation, maximum from $223,229 to $230,464.
---------------------------------------------------------------------------
\4\ See footnote 1.
---------------------------------------------------------------------------
(13) 16 U.S.C. 1437(d)(1), National Marine Sanctuaries Act (1992),
violation, maximum from $210,161 to $216,972.
(14) 16 U.S.C. 1540(a)(1), Endangered Species Act of 1973:
(i) Violation as specified (1988), maximum from $61,982 to $63,991.
[[Page 71]]
(ii) Violation as specified (1988), maximum from $29,751 to $30,715.
(iii) Otherwise violation (1978), maximum from $2,037 to $2,103.
(15) 16 U.S.C. 1858(a), Magnuson-Stevens Fishery Conservation and
Management Act (1990), violation, maximum from $223,229 to $230,464.
(16) 16 U.S.C. 2437(a), Antarctic Marine Living Resources Convention
Act of 1984,\5\ violation, maximum from $223,229 to $230,464.
---------------------------------------------------------------------------
\5\ See footnote 1.
---------------------------------------------------------------------------
(17) 16 U.S.C. 2465(a), Antarctic Protection Act of 1990,\6\
violation, maximum from $223,229 to $230,464.
---------------------------------------------------------------------------
\6\ See footnote 1.
---------------------------------------------------------------------------
(18) 16 U.S.C. 3373(a), Lacey Act Amendments of 1981 (1981):
(i) 16 U.S.C. 3373(a)(1), violation, maximum from $31,908 to
$32,942.
(ii) 16 U.S.C. 3373(a)(2), violation, maximum from $797 to $823.
(19) 16 U.S.C. 3606(b)(1), Atlantic Salmon Convention Act of
1982,\7\ violation, maximum from $223,229 to $230,464.
---------------------------------------------------------------------------
\7\ This National Oceanic and Atmospheric Administration maximum
civil monetary penalty, as prescribed by law, is the maximum civil
monetary penalty per 16 U.S.C. 1858(a), Magnuson-Stevens Fishery
Conservation and Management Act civil monetary penalty (paragraph
(f)(15) of this section).
---------------------------------------------------------------------------
(20) 16 U.S.C. 3637(b), Pacific Salmon Treaty Act of 1985,\8\
violation, maximum from $223,229 to $230,464.
---------------------------------------------------------------------------
\8\ See footnote 7.
---------------------------------------------------------------------------
(21) 16 U.S.C. 4016(b)(1)(B), Fish and Seafood Promotion Act of 1986
(1986); violation, minimum from $1,350 to $1,394; maximum from $13,508
to $13,946.
(22) 16 U.S.C. 5010, North Pacific Anadromous Stocks Act of 1992,\9\
violation, maximum from $223,229 to $230,464.
---------------------------------------------------------------------------
\9\ See footnote 7.
---------------------------------------------------------------------------
(23) 16 U.S.C. 5103(b)(2), Atlantic Coastal Fisheries Cooperative
Management Act,\10\ violation, maximum from $223,229 to $230,464.
---------------------------------------------------------------------------
\10\ See footnote 7.
---------------------------------------------------------------------------
(24) 16 U.S.C. 5154(c)(1), Atlantic Striped Bass Conservation
Act,\11\ violation, maximum from $223,229 to $230,464.
---------------------------------------------------------------------------
\11\ See footnote 7.
---------------------------------------------------------------------------
(25) 16 U.S.C. 5507(a), High Seas Fishing Compliance Act of 1995
(1995), violation, maximum from $193,890 to $200,174.
(26) 16 U.S.C. 5606(b), Northwest Atlantic Fisheries Convention Act
of 1995,\12\ violation, maximum from $223,229 to $230,464.
---------------------------------------------------------------------------
\12\ See footnote 7.
---------------------------------------------------------------------------
(27) 16 U.S.C. 6905(c), Western and Central Pacific Fisheries
Convention Implementation Act,\13\ violation, maximum from $223,229 to
$230,464.
---------------------------------------------------------------------------
\13\ See footnote 7.
---------------------------------------------------------------------------
(28) 16 U.S.C. 7009(c) and (d), Pacific Whiting Act of 2006,\14\
violation, maximum from $223,229 to $230,464.
---------------------------------------------------------------------------
\14\ See footnote 7.
---------------------------------------------------------------------------
(29) 22 U.S.C. 1978(e), Fishermen's Protective Act of 1967 (1971):
(i) Violation, maximum from $34,457 to $35,574.
(ii) Subsequent violation, maximum from $101,805 to $105,105.
(30) 30 U.S.C. 1462(a), Deep Seabed Hard Mineral Resources Act
(1980), violation, maximum, from $87,855 to $90,702.
(31) 42 U.S.C. 9152(c), Ocean Thermal Energy Conversion Act of 1980
(1980), violation, maximum from $87,855 to $90,702.
(32) 16 U.S.C. 1827a, Billfish Conservation Act of 2012,\15\
violation, maximum from $223,229 to $230,464.
---------------------------------------------------------------------------
\15\ See footnote 7.
---------------------------------------------------------------------------
(33) 16 U.S.C. 7407(b), Port State Measures Agreement Act of
2015,\16\ violation, maximum from $223,229 to $230,464.
---------------------------------------------------------------------------
\16\ See footnote 7.
---------------------------------------------------------------------------
(34) 16 U.S.C. 1826g(f), High Seas Driftnet Fishing Moratorium
Protection Act,\17\ violation, maximum from $223,229 to $230,464.
---------------------------------------------------------------------------
\17\ See footnote 7.
---------------------------------------------------------------------------
(35) 16 U.S.C. 7705, Ensuring Access to Pacific Fisheries Act,\18\
violation, maximum from $223,229 to $230,464.
---------------------------------------------------------------------------
\18\ See footnote 7.
---------------------------------------------------------------------------
(36) 16 U.S.C. 7805, Ensuring Access to Pacific Fisheries Act,\19\
violation, maximum from $223,229 to $230,464.
---------------------------------------------------------------------------
\19\ See footnote 7.
---------------------------------------------------------------------------
(37) 16 U.S.C. 1857 note, James M. Inhofe National Defense
Authorization Act for Fiscal Year 2023,\20\ (newly reported penalty),
violation, maximum $230,464.
---------------------------------------------------------------------------
\20\ See footnote 7.
---------------------------------------------------------------------------
(g) National Technical Information Service. 42 U.S.C. 1306c(c),
Bipartisan Budget Act of 2013 (2013), violation, minimum from $1,158 to
$1,196; maximum total penalty on any person for any calendar year,
excluding willful or intentional violations, from $289,504 to $298,887.
(h) Office of the Under Secretary for Economic Affairs. 15 U.S.C.
113, Concrete Masonry Products Research, Education, and Promotion Act of
2018, violation, maximum from $5,000 to $5,162.
Sec. 6.4 Effective date of adjustments for inflation to civil monetary
penalties.
The Department of Commerce's 2024 adjustments for inflation made by
Sec. 6.3, of the civil monetary penalties there specified, are
effective on January 15, 2024, and said civil monetary penalties, as
thus adjusted by the adjustments for inflation made by Sec. 6.3, apply
only to those civil monetary penalties, including those whose associated
violation predated such adjustment, which are assessed
[[Page 72]]
by the Department of Commerce after the effective date of the new civil
monetary penalty level, and before the effective date of any future
adjustments for inflation to civil monetary penalties thereto made
subsequent to January 15, 2024 as provided in Sec. 6.5.
Sec. 6.5 Subsequent annual adjustments for inflation to civil monetary
penalties.
The Secretary of Commerce or his or her designee by regulation shall
make subsequent adjustments for inflation to the Department of
Commerce's civil monetary penalties annually, which shall take effect
not later than January 15, notwithstanding section 553 of title 5,
United States Code.
PART 7_SECURING THE INFORMATION AND COMMUNICATIONS TECHNOLOGY AND SERVICES
SUPPLY CHAIN--Table of Contents
Subpart A_General
7.1 Purpose.
7.2 Definitions.
7.3 Scope of Covered ICTS Transactions.
7.4 Determination of foreign adversaries.
7.5 Effect on other laws.
7.6 Amendment, modification, or revocation.
7.7 Public disclosure of records.
Subpart B_Review of ICTS Transactions
7.100 General.
7.101 Information to be furnished on demand.
7.102 Confidentiality of information.
7.103 Initial review of ICTS Transactions.
7.104 First interagency consultation.
7.105 Initial determination.
7.106 Recordkeeping requirement.
7.107 Procedures governing response and mitigation.
7.108 Second interagency consultation.
7.109 Final determination.
7.110 Classified national security information.
Subpart C_Enforcement
7.200 Penalties.
Authority: 50 U.S.C. 1701 et seq.; 50 U.S.C. 1601 et seq.; E.O.
13873, 84 FR 22689; E.O. 14034, 86 FR 31423
Source: 86 FR 4923, Jan. 19, 2021, unless otherwise noted.
Subpart A_General
Sec. 7.1 Purpose.
(a) This part sets forth the procedures by which the Secretary may:
(1) Determine whether any acquisition, importation, transfer,
installation, dealing in, or use of any information and communications
technology or service, including but not limited to connected software
applications, (ICTS Transaction) that has been designed, developed,
manufactured, or supplied by persons owned by, controlled by, or subject
to the jurisdiction or direction of foreign adversaries poses certain
undue or unacceptable risks as identified in the Executive Order. For
purposes of these regulations, the Secretary will consider ICTS to be
designed, developed, manufactured, or supplied by a person owned by,
controlled by, or subject to the jurisdiction of a foreign adversary
where such a person operates, manages, maintains, or services the ICTS;
(2) Issue a determination to prohibit an ICTS Transaction;
(3) Direct the timing and manner of the cessation of the ICTS
Transaction;
(4) Consider factors that may mitigate the risks posed by the ICTS
Transaction.
(b) The Secretary will evaluate ICTS Transactions under this rule,
which include, but are not limited to, classes of transactions, on a
case-by-case basis. The Secretary, in consultation with appropriate
agency heads specified in Executive Order 13873 and other relevant
governmental bodies, as appropriate, shall make an initial determination
as to whether to prohibit a given ICTS Transaction or propose mitigation
measures, by which the ICTS Transaction may be permitted. Parties may
submit information in response to the initial determination, including a
response to the initial determination and any supporting materials and/
or proposed measures to remediate or mitigate the risks identified in
the initial determination as posed by the ICTS Transaction at issue.
Upon consideration of the parties' submissions, the Secretary will issue
a final determination prohibiting the transaction, not prohibiting the
transaction, or permitting the transaction subject to the adoption of
measures determined by the Secretary to sufficiently mitigate the risks
associated with the ICTS Transaction. The Secretary shall also
[[Page 73]]
engage in coordination and information sharing, as appropriate, with
international partners on the application of this part.
[88 FR 39357, June 16, 2023]
Sec. 7.2 Definitions.
Appropriate agency heads means the Secretary of the Treasury, the
Secretary of State, the Secretary of Defense, the Attorney General, the
Secretary of Homeland Security, the United States Trade Representative,
the Director of National Intelligence, the Administrator of General
Services, the Chairman of the Federal Communications Commission, and the
heads of any other executive departments and agencies the Secretary
determines is appropriate.
Commercial item has the same meaning given to it in Federal
Acquisition Regulation (48 CFR part 2.101).
Connected software application means software, a software program,
or a group of software programs, that is designed to be used on an end-
point computing device and includes as an integral functionality, the
ability to collect, process, or transmit data via the internet.
Department means the United States Department of Commerce.
End-point computing device means a device that can receive or
transmit data and includes as an integral functionality the ability to
collect or transmit data via the internet.
Entity means a partnership, association, trust, joint venture,
corporation, group, subgroup, or other non-U.S. governmental
organization.
Executive Order means Executive Order 13873, May 15, 2019,
``Securing the Information and Communications Technology and Services
Supply Chain''.
Foreign adversary means any foreign government or foreign non-
government person determined by the Secretary to have engaged in a long-
term pattern or serious instances of conduct significantly adverse to
the national security of the United States or security and safety of
United States persons.
ICTS Transaction means any acquisition, importation, transfer,
installation, dealing in, or use of any information and communications
technology or service, including ongoing activities, such as managed
services, data transmission, software updates, repairs, or the
platforming or data hosting of applications for consumer download. An
ICTS Transaction includes any other transaction, the structure of which
is designed or intended to evade or circumvent the application of the
Executive Order. The term ICTS Transaction includes a class of ICTS
Transactions.
IEEPA means the International Emergency Economic Powers Act (50
U.S.C. 1701, et seq.).
Information and communications technology or services or ICTS means
any hardware, software, including connected software applications, or
other product or service, including cloud-computing services, primarily
intended to fulfill or enable the function of information or data
processing, storage, retrieval, or communication by electronic means
(including electromagnetic, magnetic, and photonic), including through
transmission, storage, or display.
Party or parties to a transaction means a person engaged in an ICTS
Transaction, including the person acquiring the ICTS and the person from
whom the ICTS is acquired. Party or parties to a transaction include
entities designed, or otherwise used with the intention, to evade or
circumvent application of the Executive Order. For purposes of this
rule, this definition does not include common carriers, except to the
extent that a common carrier knew or should have known (as the term
``knowledge'' is defined in 15 CFR 772.1) that it was providing
transportation services of ICTS to one or more of the parties to a
transaction that has been prohibited in a final written determination
made by the Secretary or, if permitted subject to mitigation measures,
in violation of such mitigation measures.
Person means an individual or entity.
Person owned by, controlled by, or subject to the jurisdiction or
direction of a foreign adversary means any person, wherever located, who
acts as an agent, representative, or employee, or any person who acts in
any other capacity
[[Page 74]]
at the order, request, or under the direction or control, of a foreign
adversary or of a person whose activities are directly or indirectly
supervised, directed, controlled, financed, or subsidized in whole or in
majority part by a foreign adversary; any person, wherever located, who
is a citizen or resident of a nation-state controlled by a foreign
adversary; any corporation, partnership, association, or other
organization organized under the laws of a nation-state controlled by a
foreign adversary; and any corporation, partnership, association, or
other organization, wherever organized or doing business, that is owned
or controlled by a foreign adversary.
Secretary means the Secretary of Commerce or the Secretary's
designee.
Sensitive personal data means:
(1) Personally-identifiable information, including:
(i) Financial data that could be used to analyze or determine an
individual's financial distress or hardship;
(ii) The set of data in a consumer report, as defined under 15
U.S.C. 1681a, unless such data is obtained from a consumer reporting
agency for one or more purposes identified in 15 U.S.C. 1681b(a);
(iii) The set of data in an application for health insurance, long-
term care insurance, professional liability insurance, mortgage
insurance, or life insurance;
(iv) Data relating to the physical, mental, or psychological health
condition of an individual;
(v) Non-public electronic communications, including email,
messaging, or chat communications, between or among users of a U.S.
business's products or services if a primary purpose of such product or
service is to facilitate third-party user communications;
(vi) Geolocation data collected using positioning systems, cell
phone towers, or WiFi access points such as via a mobile application,
vehicle GPS, other onboard mapping tool, or wearable electronic device;
(vii) Biometric enrollment data including facial, voice, retina/
iris, and palm/fingerprint templates;
(viii) Data stored and processed for generating a Federal, State,
Tribal, Territorial, or other government identification card;
(ix) Data concerning U.S. Government personnel security clearance
status; or
(x) The set of data in an application for a U.S. Government
personnel security clearance or an application for employment in a
position of public trust; or
(2) Genetic information, which includes the results of an
individual's genetic tests, including any related genetic sequencing
data, whenever such results, in isolation or in combination with
previously released or publicly available data, constitute identifiable
data. Such results shall not include data derived from databases
maintained by the U.S. Government and routinely provided to private
parties for purposes of research. For purposes of this paragraph,
``genetic test'' shall have the meaning provided in 42 U.S.C. 300gg-
91(d)(17).
Undue or unacceptable risk means those risks identified in Section
1(a)(ii) of the Executive Order.
United States person means any United States citizen; any permanent
resident alien; or any entity organized under the laws of the United
States or any jurisdiction within the United States (including such
entity's foreign branches).
Via the internet means using internet protocols to transmit data,
including, but not limited to, transmissions by cable, telephone lines,
wireless methods, satellites, or other means.
[86 FR 4923, Jan. 19, 2021, as amended at 88 FR 39357, June 16, 2023]
Sec. 7.3 Scope of Covered ICTS Transactions.
(a) This part applies only to an ICTS Transaction that:
(1) Is conducted by any person subject to the jurisdiction of the
United States or involves property subject to the jurisdiction of the
United States;
(2) Involves any property in which any foreign country or a national
thereof has an interest (including through an interest in a contract for
the provision of the technology or service);
(3) Is initiated, pending, or completed on or after January 19,
2021, regardless
[[Page 75]]
of when any contract applicable to the transaction is entered into,
dated, or signed or when any license, permit, or authorization
applicable to such transaction was granted. Any act or service with
respect to an ICTS Transaction, such as execution of any provision of a
managed services contract, installation of software updates, or the
conducting of repairs, that occurs on or after January 19, 2021 may be
deemed an ICTS Transaction within the scope of this part, even if the
contract was initially entered into, or the activity commenced, prior to
January 19, 2021; and
(4) Involves one of the following ICTS:
(i) ICTS that will be used by a party to a transaction in a sector
designated as critical infrastructure by Presidential Policy Directive
21--Critical Infrastructure Security and Resilience, including any
subsectors or subsequently designated sectors;
(ii) Software, hardware, or any other product or service integral
to:
(A) Wireless local area networks, including:
(1) Distributed antenna systems; and
(2) Small-cell or micro-cell base stations;
(B) Mobile networks, including:
(1) eNodeB based stations;
(2) gNodeB or 5G new radio base stations;
(3) NodeB base stations;
(4) Home location register databases;
(5) Home subscriber servers;
(6) Mobile switching centers;
(7) Session border controllers; and
(8) Operation support systems;
(C) Satellite payloads, including:
(1) Satellite telecommunications systems;
(2) Satellite remote sensing systems; and
(3) Satellite position, navigation, and timing systems;
(D) Satellite operations and control, including:
(1) Telemetry, tracking, and control systems;
(2) Satellite control centers;
(3) Satellite network operations;
(4) Multi-terminal ground stations; and
(5) Satellite uplink centers;
(E) Cable access points, including:
(1) Core routers;
(2) Core networks; and
(3) Core switches;
(F) Wireline access points, including:
(1) Access infrastructure datalinks; and
(2) Access infrastructure digital loops;
(G) Core networking systems, including:
(1) Core infrastructure synchronous optical networks and synchronous
digital hierarchy systems;
(2) Core infrastructure dense wavelength division multiplexing or
optical transport network systems;
(3) Core infrastructure internet protocol and internet routing
systems;
(4) Core infrastructure content delivery network systems;
(5) Core infrastructure internet protocol and multiprotocol label
switching systems;
(6) Data center multiprotocol label switching routers; and
(7) Metropolitan multiprotocol label switching routers; or
(H) Long- and short-haul networks, including:
(1) Fiber optical cables; and
(2) Repeaters;
(iii) Software, hardware, or any other product or service integral
to data hosting or computing services, to include software-defined
services such as virtual private servers, that uses, processes, or
retains, or is expected to use, process, or retain, sensitive personal
data on greater than one million U.S. persons at any point over the
twelve (12) months preceding an ICTS Transaction, including:
(A) Internet hosting services;
(B) Cloud-based or distributed computing and data storage;
(C) Managed services; and
(D) Content delivery services;
(iv) Any of the following ICTS products, if greater than one million
units have been sold to U.S. persons at any point over the twelve (12)
months prior to an ICTS Transaction:
(A) Internet-enabled sensors, webcams, and any other end-point
surveillance or monitoring device;
(B) Routers, modems, and any other home networking device; or
(C) Drones or any other unmanned aerial system;
[[Page 76]]
(v) Software designed primarily to enable connecting with and
communicating via the internet, which is accessible through cable,
telephone line, wireless, or satellite or other means, that is in use by
greater than one million U.S. persons at any point over the twelve (12)
months preceding an ICTS Transaction, including:
(A) Desktop applications;
(B) Mobile applications;
(C) Gaming applications;
(D) Web-based applications; and
(E) Connected software applications; or
(vi) ICTS integral to:
(A) Artificial intelligence and machine learning;
(B) Quantum key distribution;
(C) Quantum computing;
(D) Drones;
(E) Autonomous systems; or
(F) Advanced Robotics.
(b) This part does not apply to an ICTS Transaction that:
(1) Involves the acquisition of ICTS items by a United States person
as a party to a transaction authorized under a U.S. government-
industrial security program; or
(2) The Committee on Foreign Investment in the United States (CFIUS)
is actively reviewing, or has reviewed, as a covered transaction or
covered real estate transaction or as part of such a transaction under
section 721 of the Defense Production Act of 1950, as amended, and its
implementing regulations.
(c) Notwithstanding the exemption in paragraph (b)(2) of this
section, ICTS Transactions conducted by parties to transactions reviewed
by CFIUS that were not part of the covered transaction or covered real
estate transaction reviewed by CFIUS remain fully subject to this part.
[86 FR 4923, Jan. 19, 2021, as amended at 88 FR 39358, June 16, 2023]
Sec. 7.4 Determination of foreign adversaries.
(a) The Secretary has determined that the following foreign
governments or foreign non-government persons have engaged in a long-
term pattern or serious instances of conduct significantly adverse to
the national security of the United States or security and safety of
United States persons and, therefore, constitute foreign adversaries
solely for the purposes of the Executive Order, this rule, and any
subsequent rule:
(1) The People's Republic of China, including the Hong Kong Special
Administrative Region (China);
(2) Republic of Cuba (Cuba);
(3) Islamic Republic of Iran (Iran);
(4) Democratic People's Republic of Korea (North Korea);
(5) Russian Federation (Russia); and
(6) Venezuelan politician Nicol[aacute]s Maduro (Maduro Regime).
(b) The Secretary's determination of foreign adversaries is solely
for the purposes of the Executive Order, this rule, and any subsequent
rule promulgated pursuant to the Executive Order. Pursuant to the
Secretary's discretion, the list of foreign adversaries will be revised
as determined to be necessary. Such revisions will be effective
immediately upon publication in the Federal Register without prior
notice or opportunity for public comment.
(c) The Secretary's determination is based on multiple sources,
including:
(1) National Security Strategy of the United States;
(2) The Director of National Intelligence's 2016-2019 Worldwide
Threat Assessments of the U.S. Intelligence Community;
(3) The 2018 National Cyber Strategy of the United States of
America; and
(4) Reports and assessments from the U.S. Intelligence Community,
the U.S. Departments of Justice, State and Homeland Security, and other
relevant sources.
(d) (d) The Secretary will periodically review this list in
consultation with appropriate agency heads and may add to, subtract
from, supplement, or otherwise amend this list. Any amendment to this
list will apply to any ICTS Transaction that is initiated, pending, or
completed on or after the date that the list is amended.
Sec. 7.5 Effect on other laws.
Nothing in this part shall be construed as altering or affecting any
other authority, process, regulation, investigation, enforcement
measure, or review provided by or established under
[[Page 77]]
any other provision of Federal law, including prohibitions under the
National Defense Authorization Act of 2019, the Federal Acquisition
Regulations, or IEEPA, or any other authority of the President or the
Congress under the Constitution of the United States.
Sec. 7.6 Amendment, modification, or revocation.
Except as otherwise provided by law, any determinations,
prohibitions, or decisions issued under this part may be amended,
modified, or revoked, in whole or in part, at any time.
Sec. 7.7 Public disclosure of records.
Public requests for agency records related to this part will be
processed in accordance with the Department of Commerce's Freedom of
Information Act regulations, 15 CFR part 4, or other applicable law and
regulation.
Subpart B_Review of ICTS Transactions
Sec. 7.100 General.
In implementing this part, the Secretary of Commerce may:
(a) Consider any and all relevant information held by, or otherwise
made available to, the Federal Government that is not otherwise
restricted by law for use for this purpose, including:
(1) Publicly available information;
(2) Confidential business information, as defined in 19 CFR 201.6,
or proprietary information;
(3) Classified National Security Information, as defined in
Executive Order 13526 (December 29, 2009) and its predecessor executive
orders, and Controlled Unclassified Information, as defined in Executive
Order 13556 (November 4, 2010);
(4) Information obtained from state, local, tribal, or foreign
governments or authorities;
(5) Information obtained from parties to a transaction, including
records related to such transaction that any party uses, processes, or
retains, or would be expected to use, process, or retain, in their
ordinary course of business for such a transaction;
(6) Information obtained through the authority granted under
sections 2(a) and (c) of the Executive Order and IEEPA, as set forth in
U.S.C. 7.101;
(7) Information provided by any other U.S. Government national
security body, in each case only to the extent necessary for national
security purposes, and subject to applicable confidentiality and
classification requirements, including the Committee for the Assessment
of Foreign Participation in the United States Telecommunications
Services Sector and the Federal Acquisitions Security Council and its
designated information-sharing bodies; and
(8) Information provided by any other U.S. Government agency,
department, or other regulatory body, including the Federal
Communications Commission, Department of Homeland Security, and
Department of Justice;
(b) Consolidate the review of any ICTS Transactions with other
transactions already under review where the Secretary determines that
the transactions raise the same or similar issues, or that are otherwise
properly consolidated;
(c) In consultation with the appropriate agency heads, in
determining whether an ICTS Transaction involves ICTS designed,
developed, manufactured, or supplied, by persons owned by, controlled
by, or subject to the jurisdiction or direction of a foreign adversary,
consider the following:
(1) Whether the person or its suppliers have headquarters, research,
development, manufacturing, test, distribution, or service facilities,
or other operations in a foreign country, including one controlled by,
or subject to the jurisdiction of, a foreign adversary;
(2) Ties between the person--including its officers, directors or
similar officials, employees, consultants, or contractors--and a foreign
adversary;
(3) Laws and regulations of any foreign adversary in which the
person is headquartered or conducts operations, including research and
development, manufacturing, packaging, and distribution; and
(4) Any other criteria that the Secretary deems appropriate;
(d) In consultation with the appropriate agency heads, in
determining whether an ICTS Transaction poses an
[[Page 78]]
undue or unacceptable risk, consider the following:
(1) Threat assessments and reports prepared by the Director of
National Intelligence pursuant to section 5(a) of the Executive Order;
(2) Removal or exclusion orders issued by the Secretary of Homeland
Security, the Secretary of Defense, or the Director of National
Intelligence (or their designee) pursuant to recommendations of the
Federal Acquisition Security Council, under 41 U.S.C. 1323;
(3) Relevant provisions of the Defense Federal Acquisition
Regulation (48 CFR ch. 2) and the Federal Acquisition Regulation (48 CFR
ch. 1), and their respective supplements;
(4) The written assessment produced pursuant to section 5(b) of the
Executive Order, as well as the entities, hardware, software, and
services that present vulnerabilities in the United States as determined
by the Secretary of Homeland Security pursuant to that section;
(5) Actual and potential threats to execution of a ``National
Critical Function'' identified by the Department of Homeland Security
Cybersecurity and Infrastructure Security Agency;
(6) The nature, degree, and likelihood of consequence to the United
States public and private sectors that could occur if ICTS
vulnerabilities were to be exploited; and
(7) Any other source or information that the Secretary deems
appropriate; and
(e) In the event the Secretary finds that unusual and extraordinary
harm to the national security of the United States is likely to occur if
all of the procedures specified herein are followed, the Secretary may
deviate from these procedures in a manner tailored to protect against
that harm.
Sec. 7.101 Information to be furnished on demand.
(a) Pursuant to the authority granted to the Secretary under
sections 2(a), 2(b), and 2(c) of the Executive Order and IEEPA, persons
involved in an ICTS Transaction may be required to furnish under oath,
in the form of reports or otherwise, at any time as may be required by
the Secretary, complete information relative to any act or transaction,
subject to the provisions of this part. The Secretary may require that
such reports include the production of any books, contracts, letters,
papers, or other hard copy or electronic documents relating to any such
act, transaction, or property, in the custody or control of the persons
required to make such reports. Reports with respect to transactions may
be required either before, during, or after such transactions. The
Secretary may, through any person or agency, conduct investigations,
hold hearings, administer oaths, examine witnesses, receive evidence,
take depositions, and require by subpoena the attendance and testimony
of witnesses and the production of any books, contracts, letters,
papers, and other hard copy or documents relating to any matter under
investigation, regardless of whether any report has been required or
filed in connection therewith.
(b) For purposes of paragraph (a) of this section, the term
``document'' includes any written, recorded, or graphic matter or other
means of preserving thought or expression (including in electronic
format), and all tangible things stored in any medium from which
information can be processed, transcribed, or obtained directly or
indirectly, including correspondence, memoranda, notes, messages,
contemporaneous communications such as text and instant messages,
letters, emails, spreadsheets, metadata, contracts, bulletins, diaries,
chronological data, minutes, books, reports, examinations, charts,
ledgers, books of account, invoices, air waybills, bills of lading,
worksheets, receipts, printouts, papers, schedules, affidavits,
presentations, transcripts, surveys, graphic representations of any
kind, drawings, photographs, graphs, video or sound recordings, and
motion pictures or other film.
(c) Persons providing documents to the Secretary pursuant to this
section must produce documents in a format useable to the Department of
Commerce, which may be detailed in the request for documents or
otherwise agreed to by the parties.
[[Page 79]]
Sec. 7.102 Confidentiality of information.
(a) Information or documentary materials, not otherwise publicly or
commercially available, submitted or filed with the Secretary under this
part will not be released publicly except to the extent required by law.
(b) The Secretary may disclose information or documentary materials
that are not otherwise publicly or commercially available and referenced
in paragraph (a) in the following circumstances:
(1) Pursuant to any administrative or judicial proceeding;
(2) Pursuant to an act of Congress;
(3) Pursuant to a request from any duly authorized committee or
subcommittee of Congress;
(4) Pursuant to any domestic governmental entity, or to any foreign
governmental entity of a United States ally or partner, information or
documentary materials, not otherwise publicly or commercially available
and important to the national security analysis or actions of the
Secretary, but only to the extent necessary for national security
purposes, and subject to appropriate confidentiality and classification
requirements;
(5) Where the parties or a party to a transaction have consented,
the information or documentary material that are not otherwise publicly
or commercially available may be disclosed to third parties; and
(6) Any other purpose authorized by law.
(c) This section shall continue to apply with respect to information
and documentary materials that are not otherwise publicly or
commercially available and submitted to or obtained by the Secretary
even after the Secretary issues a final determination pursuant to Sec.
7.109 of this part.
(d) The provisions of 18 U.S.C. 1905, relating to fines and
imprisonment and other penalties, shall apply with respect to the
disclosure of information or documentary material provided to the
Secretary under these regulations.
Sec. 7.103 Initial review of ICTS Transactions.
(a) Upon receipt of any information identified in Sec. 7.100(a),
upon written request of an appropriate agency head, or at the
Secretary's discretion, the Secretary may consider any referral for
review of a transaction (referral).
(b) In considering a referral pursuant to paragraph (a), the
Secretary shall assess whether the referral falls within the scope of
Sec. 7.3(a) of this part and involves ICTS designed, developed,
manufactured, or supplied by persons owned by, controlled by, or subject
to the jurisdiction or direction of a foreign adversary, and determine
whether to:
(1) Accept the referral and commence an initial review of the
transaction;
(2) Request additional information, as identified in Sec. 7.100(a),
from the referring entity regarding the referral; or
(3) Reject the referral.
(c) Upon accepting a referral pursuant to paragraph (b) of this
section, the Secretary shall conduct an initial review of the ICTS
Transaction and assess whether the ICTS Transaction poses an undue or
unacceptable risk, which may be determined by evaluating the following
criteria:
(1) The nature and characteristics of the information and
communications technology or services at issue in the ICTS Transaction,
including technical capabilities, applications, and market share
considerations;
(2) The nature and degree of the ownership, control, direction, or
jurisdiction exercised by the foreign adversary over the design,
development, manufacture, or supply at issue in the ICTS Transaction;
(3) The statements and actions of the foreign adversary at issue in
the ICTS Transaction;
(4) The statements and actions of the persons involved in the
design, development, manufacture, or supply at issue in the ICTS
Transaction;
(5) The statements and actions of the parties to the ICTS
Transaction;
(6) Whether the ICTS Transaction poses a discrete or persistent
threat;
(7) The nature of the vulnerability implicated by the ICTS
Transaction;
(8) Whether there is an ability to otherwise mitigate the risks
posed by the ICTS Transaction;
(9) The severity of the harm posed by the ICTS Transaction on at
least one of the following:
(i) Health, safety, and security;
[[Page 80]]
(ii) Critical infrastructure;
(iii) Sensitive data;
(iv) The economy;
(v) Foreign policy;
(vi) The natural environment; and
(vii) National Essential Functions (as defined by Federal Continuity
Directive-2 (FCD-2)); and
(10) The likelihood that the ICTS Transaction will in fact cause
threatened harm.
(d) For ICTS Transactions involving connected software applications
that are accepted for review, the Secretary's assessment of whether the
ICTS Transaction poses an undue or unacceptable risk may be determined
by evaluating the criteria in paragraph (c) as well as the following
additional criteria:
(1) Ownership, control, or management by persons that support a
foreign adversary's military, intelligence, or proliferation activities;
(2) Use of the connected software application to conduct
surveillance that enables espionage, including through a foreign
adversary's access to sensitive or confidential government or business
information, or sensitive personal data;
(3) Ownership, control, or management of connected software
applications by persons subject to the jurisdiction or direction of a
foreign adversary;
(4) Ownership, control, or management of connected software
applications by persons involved in malicious cyber activities;
(5) Whether there is regular, thorough, and reliable third-party
auditing of connected software applications;
(6) The scope and sensitivity of the data collected;
(7) The number and sensitivity of the users with access to the
connected software application; and
(8) The extent to which identified risks have been or can be
mitigated using measures that can be verified by independent third
parties.
(e) If the Secretary finds that an ICTS Transaction does not meet
the criteria of paragraph (b) of this section:
(1) The transaction shall no longer be under review; and
(2) Future review of the transaction shall not be precluded, where
additional information becomes available to the Secretary.
[86 FR 4923, Jan. 19, 2021, as amended at 88 FR 39358, June 16, 2023]
Sec. 7.104 First interagency consultation.
Upon finding that an ICTS Transaction likely meets the criteria set
forth in Sec. 7.103(c) during the initial review under Sec. 7.103, the
Secretary shall notify the appropriate agency heads and, in consultation
with them, shall determine whether the ICTS Transaction meets the
criteria set forth in Sec. 7.103(c).
Sec. 7.105 Initial determination.
(a) If, after the consultation required by Sec. 7.104, the
Secretary determines that the ICTS Transaction does not meet the
criteria set forth in Sec. 7.103(c):
(1) The transaction shall no longer be under review; and
(2) Future review of the transaction shall not be precluded, where
additional information becomes available to the Secretary.
(b) If, after the consultation required by Sec. 7.104, the
Secretary determines that the ICTS Transaction meets the criteria set
forth in Sec. 7.103(c), the Secretary shall:
(1) Make an initial written determination, which shall be dated and
signed by the Secretary, that:
(i) Explains why the ICTS Transaction meets the criteria set forth
in Sec. 7.103(c); and
(ii) Sets forth whether the Secretary has initially determined to
prohibit the ICTS Transaction or to propose mitigation measures, by
which the ICTS Transaction may be permitted; and
(2) Notify the parties to the ICTS Transaction either through
publication in the Federal Register or by serving a copy of the initial
determination on the parties via registered U.S. mail, facsimile, and
electronic transmission, or third-party commercial carrier, to an
addressee's last known address or by personal delivery.
(c) Notwithstanding the fact that the initial determination to
prohibit or propose mitigation measures on an ICTS Transaction may, in
whole or in
[[Page 81]]
part, rely upon classified national security information, or sensitive
but unclassified information, the initial determination will contain no
classified national security information, nor reference thereto, and, at
the Secretary's discretion, may not contain sensitive but unclassified
information.
Sec. 7.106 Recordkeeping requirement.
Upon notification that an ICTS Transaction is under review or that
an initial determination concerning an ICTS Transaction has been made, a
notified person must immediately take steps to retain any and all
records relating to such transaction.
Sec. 7.107 Procedures governing response and mitigation.
Within 30 days of service of the Secretary's notification pursuant
to Sec. 7.105, a party to an ICTS Transaction may respond to the
Secretary's initial determination or assert that the circumstances
resulting in the initial determination no longer apply, and thus seek to
have the initial determination rescinded or mitigated pursuant to the
following administrative procedures:
(a) A party may submit arguments or evidence that the party believes
establishes that insufficient basis exists for the initial
determination, including any prohibition of the ICTS Transaction;
(b) A party may propose remedial steps on the party's part, such as
corporate reorganization, disgorgement of control of the foreign
adversary, engagement of a compliance monitor, or similar steps, which
the party believes would negate the basis for the initial determination;
(c) Any submission must be made in writing;
(d) A party responding to the Secretary's initial determination may
request a meeting with the Department, and the Department may, at its
discretion, agree or decline to conduct such meetings prior to making a
final determination pursuant to Sec. 7.109;
(e) This rule creates no right in any person to obtain access to
information in the possession of the U.S. Government that was considered
in making the initial determination to prohibit the ICTS Transaction, to
include classified national security information or sensitive but
unclassified information; and
(f) (f) If the Department receives no response from the parties
within 30 days after service of the initial determination to the
parties, the Secretary may determine to issue a final determination
without the need to engage in the consultation process provided in
section 7.108 of this rule.
Sec. 7.108 Second interagency consultation.
(a) Upon receipt of any submission by a party to an ICTS Transaction
under Sec. 7.107, the Secretary shall consider whether and how any
information provided--including proposed mitigation measures--affects an
initial determination of whether the ICTS Transaction meets the criteria
set forth in Sec. 7.103(c).
(b) After considering the effect of any submission by a party to an
ICTS Transaction under Sec. 7.107 consistent with paragraph (a), the
Secretary shall consult with and seek the consensus of all appropriate
agency heads prior to issuing a final determination as to whether the
ICTS Transaction shall be prohibited, not prohibited, or permitted
pursuant to the adoption of negotiated mitigation measures.
(c) If consensus is unable to be reached, the Secretary shall notify
the President of the Secretary's proposed final determination and any
appropriate agency head's opposition thereto.
(d) After receiving direction from the President regarding the
Secretary's proposed final determination and any appropriate agency
head's opposition thereto, the Secretary shall issue a final
determination pursuant to Sec. 7.109.
Sec. 7.109 Final determination.
(a) For each transaction for which the Secretary issues an initial
determination that an ICTS Transaction is prohibited, the Secretary
shall issue a final determination as to whether the ICTS Transaction is:
(1) Prohibited;
(2) Not prohibited; or
(3) Permitted, at the Secretary's discretion, pursuant to the
adoption of negotiated mitigation measures.
[[Page 82]]
(b) Unless the Secretary determines in writing that additional time
is necessary, the Secretary shall issue the final determination within
180 days of accepting a referral and commencing the initial review of
the ICTS Transaction pursuant to Sec. 7.103.
(c) If the Secretary determines that an ICTS Transaction is
prohibited, the Secretary shall have the discretion to direct the least
restrictive means necessary to tailor the prohibition to address the
undue or unacceptable risk posed by the ICTS Transaction.
(d) The final determination shall:
(1) Be written, signed, and dated;
(2) Describe the Secretary's determination;
(3) Be unclassified and contain no reference to classified national
security information;
(4) Consider and address any information received from a party to
the ICTS Transaction;
(5) Direct, if applicable, the timing and manner of the cessation of
the ICTS Transaction;
(6) Explain, if applicable, that a final determination that the ICTS
Transaction is not prohibited does not preclude the future review of
transactions related in any way to the ICTS Transaction;
(7) Include, if applicable, a description of the mitigation measures
agreed upon by the party or parties to the ICTS Transaction and the
Secretary; and
(8) State the penalties a party will face if it fails to comply
fully with any mitigation agreement or direction, including violations
of IEEPA, or other violations of law.
(e) The written, signed, and dated final determination shall be sent
to:
(1) The parties to the ICTS Transaction via registered U.S. mail and
electronic mail; and
(2) The appropriate agency heads.
(f) The results of final written determinations to prohibit an ICTS
Transaction shall be published in the Federal Register. The publication
shall omit any confidential business information.
Sec. 7.110 Classified national security information.
In any review of a determination made under this part, if the
determination was based on classified national security information,
such information may be submitted to the reviewing court ex parte and in
camera. This section does not confer or imply any right to review in any
tribunal, judicial or otherwise.
Subpart C_Enforcement
Sec. 7.200 Penalties.
(a) Maximum penalties.
(1) Civil penalty. A civil penalty not to exceed the amount set
forth in Section 206 of IEEPA, 50 U.S.C. 1705, may be imposed on any
person who violates, attempts to violate, conspires to violate, or
causes any knowing violation of any final determination or direction
issued pursuant to this part, including any violation of a mitigation
agreement issued or other condition imposed under this part. IEEPA
provides for a maximum civil penalty not to exceed the greater of
$250,000, subject to inflationary adjustment, or an amount that is twice
the amount of the transaction that is the basis of the violation with
respect to which the penalty is imposed.
(2) Criminal penalty. A person who willfully commits, willfully
attempts to commit, or willfully conspires to commit, or aids and abets
in the commission of a violation of any final determination, direction,
or mitigation agreement shall, upon conviction of a violation of IEEPA,
be fined not more than $1,000,000, or if a natural person, may be
imprisoned for not more than 20 years, or both.
(3) The Secretary may impose a civil penalty of not more than the
maximum statutory penalty amount, which, when adjusted for inflation, is
$307,922, or twice the amount of the transaction that is the basis of
the violation, per violation on any person who violates any final
determination, direction, or mitigation agreement issued pursuant to
this part under IEEPA.
(i) Notice of the penalty, including a written explanation of the
penalized conduct specifying the laws and regulations allegedly violated
and the
[[Page 83]]
amount of the proposed penalty, and notifying the recipient of a right
to make a written petition within 30 days as to why a penalty should not
be imposed, shall be served on the notified party or parties.
(ii) The Secretary shall review any presentation and issue a final
administrative decision within 30 days of receipt of the petition.
(4) Any civil penalties authorized in this section may be recovered
in a civil action brought by the United States in U.S. district court.
(b) Adjustments to penalty amounts.
(1) The civil penalties provided in IEEPA are subject to adjustment
pursuant to the Federal Civil Penalties Inflation Adjustment Act of 1990
(Pub. L. 101-410, as amended, 28 U.S.C. 2461 note).
(2) The criminal penalties provided in IEEPA are subject to
adjustment pursuant to 18 U.S.C. 3571.
(c) The penalties available under this section are without prejudice
to other penalties, civil or criminal, available under law. Attention is
directed to 18 U.S.C. 1001, which provides that whoever, in any matter
within the jurisdiction of any department or agency in the United
States, knowingly and willfully falsifies, conceals, or covers up by any
trick, scheme, or device a material fact, or makes any false,
fictitious, or fraudulent statements or representations, or makes or
uses any false writing or document knowing the same to contain any
false, fictitious, or fraudulent statement or entry, shall be fined
under title 18, United States Code, or imprisoned not more than 5 years,
or both.
PART 8_NONDISCRIMINATION IN FEDERALLY ASSISTED PROGRAMS OF THE DEPARTMENT
OF COMMERCE_EFFECTUATION OF TITLE VI OF THE CIVIL RIGHTS ACT OF 1964-
-Table of Contents
Subpart A_General Provisions; Prohibitions: Nondiscrimination Clause;
Applicability to Programs
Sec.
8.1 Purpose.
8.2 Application of this part.
8.3 Definitions.
8.4 Discrimination prohibited.
8.5 Nondiscrimination clause.
8.6 Applicability of this part to Department assisted programs.
Subpart B_General Compliance
8.7 Cooperation, compliance reports and reviews and access to records.
8.8 Complaints.
8.9 Intimidatory or retaliatory acts prohibited.
8.10 Investigations.
8.11 Procedures for effecting compliance.
8.12 Hearings.
8.13 Decisions and notices.
8.14 Judicial review.
8.15 Effect on other laws; supplementary instructions; coordination.
Appendix A to Part 8--Federal Financial Assistance Covered By Title VI
Authority: Sec. 602, Civil Rights Act of 1964 (42 U.S.C. 2000d-1).
Source: 38 FR 17938, July 5, 1973, unless otherwise noted.
Editorial Note: Nomenclature changes to part 8 appear at 68 FR
51352, Aug. 26, 2003.
Subpart A_General Provisions; Prohibitions: Nondiscrimination Clause;
Applicability to Programs
Sec. 8.1 Purpose.
The purpose of this part is to effectuate the provisions of title VI
of the Civil Rights Act of 1964 (hereafter referred to as the ``Act'')
to the end that no person in the United States shall, on the ground of
race, color, or national origin, be excluded from participation in, be
denied the benefits of, or be otherwise subjected to discrimination
under any program receiving Federal financial assistance from the
Department of Commerce. This part is consistent with achievement of the
objectives of the statutes authorizing the financial assistance given by
the Department of Commerce as provided in section 602 of the Act.
Sec. 8.2 Application of this part.
(a) This part applies to any program for which Federal financial
assistance is authorized under a law administered by the Department,
including the types of Federal financial assistance listed in Appendix A
to this part and as said Appendix may be amended. It applies to
[[Page 84]]
money paid, property transferred, or other Federal financial assistance
extended after January 9, 1965, pursuant to an application approved
prior to such effective date.
(b) This part does not apply to (1) any Federal financial assistance
by way of insurance or guaranty contracts, (2) money paid, property
transferred, or other assistance extended before January 9, 1965, except
where such assistance was subject to the title VI regulations of this
Department or of any other agency whose responsibilities are now
exercised by this Department, (3) any assistance to any individual who
is the ultimate beneficiary under any such program, or (4) any
employment practice, under any such program, of any employer, employment
agency, or labor organization except to the extent described in Sec.
8.4(c). The fact that a type of Federal financial assistance is not
listed in Appendix A shall not mean, if title VI of the Act is otherwise
applicable, that a program is not covered. Other types of Federal
financial assistance under statutes now in force or hereinafter enacted
may be added to the list by notice published in the Federal Register.
Sec. 8.3 Definitions.
(a) Department means the Department of Commerce, and includes each
and all of its operating and equivalent other units.
(b) Secretary means the Secretary of Commerce.
(c) United States means the States of the United States, the
District of Columbia, Puerto Rico, the Virgin Islands, American Samoa,
Guam, Wake Island, the Canal Zone, and the territories and possessions
of the United States, and the term State means anyone of the foregoing.
(d) Person means an individual in the United States who is or is
eligible to be a participant in or an ultimate beneficiary of any
program which receives Federal financial assistance, and includes an
individual who is an owner or member of a firm, corporation, or other
business or organization which is or is eligible to be a participant in
or an ultimate beneficiary of such a program. Where a primary objective
of the Federal financial assistance to a program is to provide
employment, ``person'' includes employees or applicants for employment
of a recipient or other party subject to this part under such program.
(e) Responsible department official with respect to any program
receiving Federal financial assistance means the Secretary or other
official of the Department who by law or by delegation has the principal
authority within the Department for the administration of a law
extending such assistance. It also means any officials so designated by
due delegation of authority within the Department to act in such
capacity with regard to any program under this part.
(f) Federal financial assistance includes
(1) Grants, loans, or agreements for participation in loans, of
Federal funds,
(2) The grant or donation of Federal property or interests in
property,
(3) The sale or lease of, or the permission to use (on other than a
casual or transient basis), Federal property or any interest in such
property or in property in which the Federal Government has an interest,
without consideration, or at a nominal consideration, or at a
consideration which is reduced, for the purpose of assisting the
recipient, or in recognition of the public interest to be served by such
sale or lease to or use by the recipient,
(4) Waiver of charges which would normally be made for the
furnishing of Government services,
(5) The detail of Federal personnel,
(6) Technical assistance, and
(7) Any Federal agreement, arrangement, contract, or other
instrument which has as one of its purposes the provision of assistance.
(g) Program or activity and program mean all of the operations of
any entity described in paragraphs (g)(1) through (4) of this section,
any part of which is extended Federal financial assistance:
(1)(i) A department, agency, special purpose district, or other
instrumentality of a State or of a local government; or
(ii) The entity of such State or local government that distributes
such assistance and each such department or
[[Page 85]]
agency (and each other State or local government entity) to which the
assistance is extended, in the case of assistance to a State or local
government;
(2)(i) A college, university, or other postsecondary institution, or
a public system of higher education; or
(ii) A local educational agency (as defined in 20 U.S.C. 7801),
system of vocational education, or other school system;
(3)(i) An entire corporation, partnership, or other private
organization, or an entire sole proprietorship--
(A) If assistance is extended to such corporation, partnership,
private organization, or sole proprietorship as a whole; or
(B) Which is principally engaged in the business of providing
education, health care, housing, social services, or parks and
recreation; or
(ii) The entire plant or other comparable, geographically separate
facility to which Federal financial assistance is extended, in the case
of any other corporation, partnership, private organization, or sole
proprietorship; or
(4) Any other entity which is established by two or more of the
entities described in paragraph (g)(1), (2), or (3) of this section.
(h) Facility includes all or any portion of structures, equipment,
vessels, or other real or personal property or interests therein, and
the provision of facilities includes the construction, expansion,
renovation, remodeling, alteration, contract for use, or acquisition of
facilities.
(i) Recipient means any governmental, public or private agency,
institution, organization, or other entity, or any individual, who or
which is an applicant for Federal financial assistance, or to whom
Federal financial assistance is extended directly or through another
recipient. Recipient further includes a subgrantee, an entity which
leases or operates a facility for or on behalf of a recipient, and any
successors, assignees, or transferees of any kind of the recipient, but
does not include any person who is an ultimate beneficiary.
(j) Primary recipient means any recipient which is authorized or
required to extend or distribute Federal financial assistance to another
recipient.
(k) Applicant means one who submits an application, request, or plan
required to be approved by a responsible Department official, or by a
primary recipient, as a condition to eligibility for Federal financial
assistance, and ``application'' means such an application, request, or
plan.
(l) Other parties subject to this part includes any governmental,
public or private agency, institution, organization, or other entity, or
any individual, who or which, like a recipient, is not to engage in
discriminatory acts with respect to applicable persons covered by this
part, because of his or its direct or substantial participation in any
program, such as a contractor, subcontractor, provider of employment, or
user of facilities or services provided under any program.
[38 FR 17938, July 5, 1973, as amended at 68 FR 51352, Aug. 26, 2003]
Sec. 8.4 Discrimination prohibited.
(a) General. No person in the United States shall, on the ground of
race, color, or national origin be excluded from participation in, be
denied the benefits of, or be otherwise subjected to discrimination
under, any program to which this part applies.
(b) Specific discriminatory acts prohibited. (1) A recipient of
Federal financial assistance, or other party subject to this part, shall
not participate, directly or through contractual or other arrangements,
in any act or course of conduct which, on the ground of race, color, or
national origin:
(i) Denies to a person any service, financial aid, or other benefit
provided under the program;
(ii) Provides any service, financial aid, or other benefit, to a
person which is different, or is provided in a different manner, from
that provided to others under the program;
(iii) Subjects a person to segregation or separate or other
discriminatory treatment in any matter related to his receipt (or
nonreceipt) of any such service, financial aid, property, or other
benefit under the program.
(iv) Restricts a person in any way in the enjoyment of services,
facilities, or
[[Page 86]]
any other advantage, privilege, property, or benefit provided to others
under the programs;
(v) Treats a person differently from others in determining whether
he satisfies any admission, enrollment, quota, eligibility, membership,
or other requirement or condition which persons must meet in order to be
provided any service, financial aid, or other benefit provided under the
program;
(vi) Denies a person an opportunity to participate in the program
through the provision of property or services or otherwise, or affords
him an opportunity to do so which is different from that afforded others
under the program (including the opportunity to participate in the
program as an employee but only to the extent set forth in paragraph (c)
of this section);
(vii) Denies a person the same opportunity or consideration given
others to be selected or retained or otherwise to participate as a
contractor, subcontractor, or subgrantee;
(viii) Denies a person the opportunity to participate as a member of
a planning or advisory body which is an integral part of the program.
(2) A recipient, or other party subject to this part, in determining
the types of services, financial aid, or other benefits, or facilities
which will be provided under any program, or the class of persons to
whom, or the situations in which, such services, financial aid, other
benefits, or facilities will be provided under any such program, or the
class of persons to be afforded an opportunity to participate in any
such program, shall not, directly or through contractual or other
arrangements, utilize criteria or methods of administration which have
the effect of subjecting persons to discrimination because of their
race, color, or national origin, or have the effect of defeating or
substantially impairing accomplishment of the objectives of the program
as respect any persons of a particular race, color, or national origin.
(3) In determining the site or location of facilities, a recipient
or other party subject to this part may not make selections with the
purpose or effect of excluding persons from, denying them the benefits
of, or subjecting them to discrimination under any program to which this
part applies, on the grounds of race, color or national origin; or with
the purpose or effect of defeating or substantially impairing the
accomplishment of the objectives of the Act or this part.
(4) As used in this section, the services, financial aid, or other
benefits provided under a program receiving Federal financial assistance
shall be deemed to include any service, financial aid, or other benefit
provided or made available in or through or utilizing a facility
provided with the aid of Federal financial assistance.
(5) The enumeration of specific forms of prohibited discrimination
in this paragraph and paragraph (c) of this section does not limit the
generality of the prohibition in paragraph (a) of this section.
(6)(i) In administering a program regarding which the recipient has
previously discriminated against persons on the ground of race, color,
or national origin, the recipient must take affirmative action to
overcome the effects of prior discrimination.
(ii) Even in the absence of such prior discrimination, a recipient
in administering a program may take affirmative action to overcome the
effects of conditions which resulted in limiting participation by
persons of a particular race, color or national origin.
(c) Employment practices. (1) Where a primary objective of the
Federal financial assistance to a program to which this part applies is
to provide employment, a recipient or other party subject to this part
shall not, directly or through contractual or other arrangements,
subject a person to discrimination on the ground of race, color, or
national origin in its employment practices under such program
(including recruitment or recruitment advertising, hiring, firing,
upgrading, promotion, demotion, transfer, layoff, termination, rates of
pay or other forms of compensation or benefits, selection for training
or apprenticeship, use of facilities, and treatment of employees). Such
recipients and other parties subject to this part shall take affirmative
action to ensure that applicants are employed, and employees are treated
during employment without regard to their race, color, or national
origin.
[[Page 87]]
Such recipients and other parties subject to this part shall, as may be
required by supplemental regulations, develop a written affirmative
action plan. The requirements applicable to construction employment
under any such program shall be in addition to those specified in or
pursuant to Part III of Executive Order 11246 or any Executive order
which supersedes it. Federal financial assistance to programs under laws
funded or administered by the Department which has as a primary
objective the providing of employment include those set forth in
Appendix A II of this part.
(2) Where a primary objective of the Federal financial assistance to
a program to which this part applies is not to provide employment, but
discrimination on the grounds of race, color, or national origin, in the
employment practices of the recipient or other party subject to this
part, tends, on the grounds of race, color, or national origin, to
exclude persons from participating in, to deny them the benefits of, or
to subject them to discrimination under any such program, the provisions
of paragraph (c)(1) of this section shall apply to the employment
practices of the recipient or other party subject to this part, to the
extent necessary to assure equality of opportunity to, and
nondiscriminatory treatment of such persons.
[38 FR 17938, July 5, 1973; 38 FR 23777, Sept. 4, 1973]
Sec. 8.5 Nondiscrimination clause.
(a) Applicability. Every application for, and every grant, loan, or
contract authorizing approval of, Federal financial assistance and to
provide a facility subject to this part, and every modification or
amendment thereof, shall, as a condition to its approval and to the
extension of any Federal financial assistance pursuant thereto, contain
or be accompanied by an assurance that the program will be conducted in
compliance with all requirements imposed by or pursuant to this part.
The assurances shall be set forth in a nondiscrimination clause. The
responsible Department official shall specify the form and contents of
the nondiscrimination clause for each program as appropriate.
(b) Contents. Without limiting its scope or language in any way, a
nondiscrimination clause shall contain, where determined to be
appropriate, and in an appropriate form, reference to the following
assurances, undertakings, and other provisions:
(1) That the recipient or other party subject to this part will not
participate directly or indirectly in the discrimination prohibited by
Sec. 8.4, including employment practices when a program covering such
is involved.
(2) That when employment practices are covered, the recipient or
other party subject to this part will (i) in all solicitations or
advertisements for employees placed by or for the recipient, state that
qualified applicants will receive consideration for employment without
regard to race, color, or national origin; (ii) notify each labor union
or representative of workers with which it has a collective bargaining
agreement or other contract or understanding of the recipient's
commitments under this section; (iii) post the nondiscrimination clause
and the notice to labor unions in conspicuous places available to
employees and applicants for employment; and (iv) otherwise comply with
the requirements of Sec. 8.4(c).
(3) When continuing Federal financial assistance is involved, the
recipient thereunder (i) will state that the program is (or, in the case
of a new program, will be) conducted in compliance with all requirements
imposed by or pursuant to this part, and (ii) will provide for such
methods of administration for the program as are found by the
responsible Department official to give reasonable assurance that all
recipients of Federal financial assistance under such program and any
other parties connected therewith subject to this part will comply with
all requirements imposed by or pursuant to this part.
(4) That the recipient agrees to secure the compliance or to
cooperate actively with the Department to secure the compliance by
others with this part and the nondiscrimination clause as may be
directed under an applicable program. For instance, the recipient may be
requested by the responsible Department official to undertake and
[[Page 88]]
agree (i) to obtain or enforce or to assist and cooperate actively with
the responsible Department official in obtaining or enforcing, the
compliance of other recipients or of other parties subject to this part
with the nondiscrimination required by this part; (ii) to insert
appropriate nondiscrimination clauses in the respective contracts with
or grants to such parties; (iii) to obtain and to furnish to the
responsible Department official such information as he may require for
the supervision or securing of such compliance; (iv) to carry out
sanctions for noncompliance with the obligations imposed upon recipients
and other parties subject to this part; and (v) to comply with such
additional provisions as the responsible Department official deems
appropriate to establish and protect the interests of the United States
in the enforcement of these obligations. In the event that the
cooperating recipient becomes involved in litigation with a noncomplying
party as a result of such departmental direction, the cooperating
recipient may request the Department to enter into such litigation to
protect the interests of the United States.
(5) In the case of real property, structures or improvements
thereon, or interests therein, which are acquired for a program
receiving Federal financial assistance, or in the case where Federal
financial assistance is provided in the form of a transfer of real
property or interest therein from the Federal Government, the instrument
effecting or recording the transfer shall contain a covenant running
with the land assuring nondiscrimination for the period during which the
real property is used for a purpose for which the Federal financial
assistance is extended or for another purpose involving the provision of
similar services or benefits, or for as long as the recipient retains
ownership or possession of the property, whichever, is longer. Where no
transfer of property is involved, but property is improved with Federal
financial assistance, the recipient shall agree to include such a
covenant in any subsequent transfer of such property. Where the property
is obtained from the Federal Government, such covenant may also include
a condition coupled with a right to be reserved by the Department to
revert title to the property in the event of a breach of the covenant
where, in the discretion of the responsible Department official, such a
condition and right of reverter is appropriate to the statute under
which the real property is obtained and to the nature of the grant and
the grantee. In such event if a transferee of real property proposes to
mortgage or otherwise encumber the real property as security for
financing construction of new, or improvement of existing facilities on
such property for the purposes for which the property was transferred,
the responsible Department official may agree, upon request of the
transferee and if necessary to accomplish such financing, and upon such
conditions as he deems appropriate to forebear the exercise of such
right to revert title for so long as the lien of such mortgage or other
encumbrance remains effective.
(6) In programs receiving Federal financial assistance in the form,
or for the acquisition, of real property or an interest in real property
to the extent that rights to space on, over, or under any such property
are included as part of the program receiving such assistance the
nondiscrimination requirements of this part shall extend to any facility
located wholly or in part in such space.
(7) That a recipient shall not take action that is calculated to
bring about indirectly what this part forbids it to accomplish directly.
(8) Provisions specifying the extent to which like assurances will
be required of subgrantees, contractors and subcontractors, lessees,
transferees, successors in interest, and other participants in the
program.
(9) Provisions which give the United States a right to seek judicial
enforcement of the assurances.
(10) In the case where any assurances are required from an academic,
a medical care, detention or correctional, or any other institution or
facility, insofar as the assurances relate to the institution's
practices with respect to the admission, care, or other treatment of
persons by the institution or with respect to the opportunity of persons
[[Page 89]]
to participate in the receiving or providing of services, treatment, or
benefits, such assurances shall be applicable to the entire institution
or facility.
(11) In the case where the Federal financial assistance is in the
form of or to aid in the acquisition of personal property, or real
property or interest therein or structures thereon, the assurance shall
obligate the recipients, or, in the case of a subsequent transfer, the
transferee, for the period during which the property is used for a
purpose for which the Federal financial assistance is extended or for
another purpose involving the provision of similar services and
benefits, or for as long as the recipient or transferee retains
ownership or possession of the property, whichever is longer. In the
case of any other type or form of assistance, the assurances shall be in
effect for the duration of the period during which Federal financial
assistance is extended to the program.
[38 FR 17938, July 5, 1973; 38 FR 23777, Sept. 4, 1973, as amended at 68
FR 51352, Aug. 26, 2003]
Sec. 8.6 Applicability of this part to Department assisted programs.
The following examples illustrate the applicability of this part to
programs which receive or may receive Federal financial assistance
administered by the Department. The fact that a particular type of
Federal financial assistance is not listed does not indicate that it is
not covered by this part, The discrimination referred to is that
described in Sec. 8.4 against persons on the ground of race, color, or
national origin.
(a) Assistance to support economic development. Discrimination in
which recipients and other parties subject to this part shall not
engage, directly or indirectly, includes discrimination in
(1) The letting of contracts or other arrangements for the planning,
designing, engineering, acquisition, construction, rehabilitation,
conversion, enlargement, installation, occupancy, use, maintenance,
leasing, subleasing, sales, or other utilization or disposition of
property or facilities purchased or financed in whole or in part with
the aid of Federal financial assistance;
(2) The acquisition of goods or services, or the production,
preparation, manufacture, marketing, transportation, or distribution of
goods or services in connection with a program or its operations;
(3) The onsite operation of the project or facilities;
(4) Services or accommodations offered to the public in connection
with the program; and
(5) In employment practices in connection with or which affect the
program (as defined in Sec. 8.4(c)); in the following programs:
(i) Any program receiving Federal financial assistance for the
purchase or development of land and facilities (including machinery and
equipment) for industrial or commercial usage.
(ii) Any program receiving Federal financial assistance in the form
of loans or direct or supplementary grants for the acquisition or
development of land and improvements for public works, public service or
development facility usage, and the acquisition, construction,
rehabilitation, alteration, expansion, or improvement of such
facilities, including related machinery and equipment.
(iii) In any program receiving any form of technical assistance
designed to alleviate or prevent conditions of excessive employment or
underemployment.
(iv) In any program receiving Federal financial assistance in the
form of administrative expense grants.
(b) Assistance to support the training of students. A current
example of such assistance is that received by State maritime academies
or colleges, by contract, of facilities (vessels), related equipment and
funds to train merchant marine officers. In this and other instances of
student training, discrimination which is prohibited by recipients and
other parties subject to this part includes discrimination in the
selection of persons to be trained and in their treatment by the
recipients in any aspect of the educational process and discipline
during their training, or in the availability or use of any academic,
housing, eating, recreational, or other facilities and services, or in
financial assistance to students furnished or controlled by the
recipients
[[Page 90]]
or incidental to the program. In any case where selection of trainees is
made from a predetermined group, such as the students in an institution
or area, the group must be selected without discrimination.
(c) Assistance to support mobile or other trade fairs. In programs
in which operators of mobile trade fairs using U.S. flag vessels and
aircraft and designed to exhibit and sell U.S. products abroad, or in
which other trade fairs or exhibitions, receive technical and financial
assistance, discrimination which is prohibited by recipients and other
parties subject to this part includes discrimination in the selection or
retention of any actual or potential exhibitors, or in access to or use
of the services or accommodations by, or otherwise with respect to
treatment of, exhibitors or their owners, officers, employees, or
agents.
(d) Assistance to support business entities eligible for trade
adjustment assistance. In programs in which eligible business entities
receive any measure or kind of technical, financial or tax adjustment
assistance because of or in connection with the impact of U.S.
international trade upon such business, discrimination which is
prohibited by recipients and other parties subject to this part includes
discrimination in their employment practices as defined in Sec. 8.4(c).
(e) Assistance to support research and development and related
activities. In programs in which individuals, educational or other
institutions, public governmental or business entities receive Federal
financial assistance in order to encourage or foster research or
development activities as such, or to obtain, promote, develop, or
protect thereby technical, scientific, environmental, or other
information, products, facilities, resources, or services which are to
be made available to or used by others; but where such programs do not
constitute Government procurement of property or services,
discrimination which is prohibited by recipients and other parties
subject to this part includes discrimination with respect to (1) the
choice, retention or treatment of contractors, subcontractors,
subgrantees or of any other person; (2) the provision of services,
facilities, or financial aid; (3) the participation of any party in the
research activities; (4) the dissemination to or use by any person of
the results or benefits of the research or development, whether in the
form of information, products, services, facilities, resources, or
otherwise. If research is performed within an educational institution
under which it is expected that students or others will participate in
the research as a part of their experience or training, on a compensated
or uncompensated basis, there shall be no discrimination in admission of
students to, or in their treatment by, that part of the school from
which such students are drawn or in the selection otherwise of trainees
or participants. The recipient educational institutions will be required
to give the assurances provided in Sec. 8.5(b)(10).
(f) Assistance to aid in the operations of vessels engaged in U.S.
foreign commerce. In programs in which the operators of American-flag
vessels used to furnish shipping services in the foreign commerce of the
United States receive Federal financial assistance in the form of
operating differential subsidies, discrimination which is prohibited by
recipients and other parties subject to this part includes
discrimination in soliciting, accepting or serving in any way passengers
or shippers of cargo entitled to protection in the United States under
the Act.
[38 FR 17938, July 5, 1973, as amended at 68 FR 51352, Aug. 26, 2003]
Subpart B_General Compliance
Sec. 8.7 Cooperation, compliance reports and reviews and access to records.
(a) Cooperation and assistance. Each responsible Department official
shall to the fullest extent practicable seek the cooperation of
recipients and other parties subject to this part in obtaining
compliance with this part and shall provide assistance and guidance to
recipients and other parties to help them comply voluntarily with this
part.
(b) Compliance reports. Each recipient and other party subject to
this part shall keep such records and submit to the responsible
Department official timely, complete, and accurate compliance reports at
such times and in such form and containing such information
[[Page 91]]
as the responsible Department official may determine to be necessary to
enable him to ascertain whether the recipient or such other party has
complied or is complying with this part. In general, recipients should
have available for the department racial and ethnic data showing the
extent to which members of minority groups are beneficiaries of
federally assisted programs. In the case in which a primary recipient
extends Federal financial assistance to any other recipient, or under
which a recipient is obligated to obtain or to cooperate in obtaining
the compliance of other parties subject to this part, such other
recipients or other parties shall also submit such compliance reports to
the primary recipient or recipients as may be necessary to enable them
to carry out their obligations under this part.
(c) Access to sources of information. Each recipient or other party
subject to this part shall permit access by the responsible Department
official or his designee during normal business hours to such of its
books, records, accounts, and other sources of information, and its
facilities, as may be pertinent to ascertain compliance with this part.
Where any information required of a recipient or other party is in the
exclusive possession of another who fails or refuses to furnish this
information, the recipient or other party shall so certify in its report
and shall set forth what efforts it has made to obtain the information.
(d) Information to beneficiaries and participants. Each recipient or
other party subject to this part shall make available to participants,
beneficiaries, and other interested persons such information regarding
the provisions of this part and its applicability to the program for
which the recipient receives Federal financial assistance, and make such
information available to them in such manner as this part and the
responsible Department official finds necessary to apprise such persons
of the protections against discrimination assured them by the Act and
this part.
(e) Compliance review. The responsible Department official or his
designee shall from time to time review the practices of recipients and
other parties subject to this part to determine whether they are
complying with this part.
Sec. 8.8 Complaints.
(a) Filing complaints. Any person who believes himself or any
specific class of persons to be subjected to discrimination prohibited
by this part may by himself or by a representative file with the
responsible Department official a written complaint. A complaint shall
be filed not later than 180 days from the date of the alleged
discrimination, unless the time for filing is extended by the
responsible Department official.
(b) [Reserved]
Sec. 8.9 Intimidatory or retaliatory acts prohibited.
(a) No recipient or other party subject to this part shall
intimidate, threaten, coerce, or discriminate against, any person for
the purpose of interfering with any right or privilege secured by
section 601 of the Act of this part, or because the person has made a
complaint, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under this part.
(b) The identity of complainants shall be kept confidential except
to the extent necessary to carry out the purposes of this part,
including the conduct of any investigation, hearing, or judicial or
other proceeding arising thereunder.
Sec. 8.10 Investigations.
(a) Making the investigation. The responsible Department official or
his designee will make a prompt investigation whenever a compliance
review, report, complaint, or any other information indicates a possible
failure to comply with this part. The investigation shall include, where
appropriate, a review of the pertinent practices and policies of the
recipient or other party subject to this part, the circumstances under
which the possible noncompliance with this part occurred, and other
factors relevant to a determination as to whether there has been a
failure to comply with this part.
(b) Resolution of matters. (1) If an investigation pursuant to
paragraph (a) of this section indicates a failure to
[[Page 92]]
comply with this part, the responsible Department official will so
inform the recipient or other party subject to this part and the matter
will be resolved by informal means whenever possible. If it has been
determined that the matter cannot be resolved by informal means, action
will be taken as provided for in Sec. 8.11.
(2) If an investigation does not warrant action pursuant to
paragraph (b)(1) of this section, the responsible Department official
will so inform the recipient or other party subject to this part and the
complainant, if any, in writing.
Sec. 8.11 Procedures for effecting compliance.
(a) General. If there appears to be a failure or threatened failure
to comply with this part, and if the noncompliance or threatened
noncompliance cannot be corrected by informal means, compliance with
this part may be effected by the suspension or termination of or refusal
to grant or to continue Federal financial assistance or by any other
means authorized by law. Such other means may include, but are not
limited to, (1) a reference to the Department of Justice with a
recommendation that appropriate proceedings be brought to enforce any
rights of the United States under any law of the United States
(including other titles of the Act), or any assurance or other
contractural undertaking, and (2) any applicable proceeding under State
or local law.
(b) Noncompliance with Sec. 8.5. If a recipient or other party
subject to this part fails or refuses to furnish an assurance required
under Sec. 8.5 or otherwise fails or refuses to comply with a
requirement imposed by or pursuant to that section, Federal financial
assistance may be refused in accordance with the procedures of paragraph
(c) of this section. The Department shall not be required to provide
assistance in such a case during the pendency of the administrative
proceedings under said paragraph except that the Department shall
continue assistance during the pendency of such proceedings where such
assistance is due and payable pursuant to an application or contract
therefor approved prior to the effective date of this part.
(c) Termination of or refusal to grant or to continue Federal
financial assistance. No order suspending, terminating, or refusing to
grant or continue Federal financial assistance shall become effective
until (1) the responsible Department official has advised the recipient
or other party subject to this part of his failure to comply and has
determined that compliance cannot be secured by voluntary means, (2)
there has been an express finding on the record, after opportunity for
hearing, of a failure by such recipient or other party to comply with a
requirement imposed by or pursuant to this part, (3) the action has been
approved by the Secretary pursuant to Sec. 8.13(e), and (4) the
expiration of 30 days after the Secretary has filed with the committee
of the House and the committee of the Senate having legislative
jurisdiction over the program involved, a full written report of the
circumstances and the grounds for such action. Any action to suspend or
terminate or to refuse to grant or to continue Federal financial
assistance shall be limited to the particular political entity, or part
thereof, or other recipient or other party as to whom such a finding has
been made and shall be limited in its effect to the particular program,
or part thereof, in which such noncompliance has been so found.
(d) Other means authorized by law. No action to effect compliance by
any other means authorized by law shall be taken until (1) the
responsible Department official has determined that compliance cannot be
secured by voluntary means, (2) the recipient or other party has been
notified of its failure to comply and of the action to be taken to
effect compliance, and (3) the expiration of at least 10 days from the
mailing of such notice to the recipient or other party. During this
period of at least 10 days additional efforts shall be made to persuade
the recipient or other party to comply with this part and to take such
corrective action as may be appropriate.
Sec. 8.12 Hearings.
(a) Opportunity for hearing. Whenever an opportunity for a hearing
is required by Sec. 8.11(c), reasonable notice
[[Page 93]]
shall be given by registered or certified mail, return receipt
requested, to the affected recipient or other party subject to this
part. This notice shall advise the recipient or other party of the
action proposed to be taken, the specific provision under which the
proposed action against it is to be taken, and the matters of fact or
law asserted as the basis for this action, and either (1) fix a date not
less than 20 days after the date of such notice within which the
recipient or other party may request of the responsible Department
official that the matter be scheduled for hearing, or (2) advise the
recipient or other party that the matter in question has been set down
for hearing at a stated place and time. The time and place so fixed
shall be reasonable and shall be subject to change for cause. The
complainant, if any, shall be advised of the time and place of the
hearing. A recipient or other party may waive a hearing and submit
written information and argument for the record. The failure of a
recipient or other party to request a hearing under this paragraph of
this section or to appear at a hearing for which a date has been set
shall be deemed to be a waiver of the right to a hearing under section
602 of the Act and Sec. 8.11(c) and consent to the making of a decision
on the basis of such information as is available.
(b) Time and place of hearing. Hearings shall be held at the offices
of the Department in Washington, D.C., at a time fixed by the
responsible Department official or hearing officer unless he determines
that the convenience of the recipient or other party or of the
Department requires that another place be selected. Hearings shall be
held before the responsible Department official, or at his discretion,
before a hearing officer.
(c) Right to counsel. In all proceedings under this section, the
recipient or other party and the Department shall have the right to be
represented by counsel.
(d) Procedures, evidence, and record. (1) The hearing, decision, and
any administrative review thereof shall be conducted in conformity with
5 U.S.C. 554-557 (sections 5-8 of the Administrative Procedures Act),
and in accordance with such rules of procedure as are proper (and not
inconsistent with this section) relating to the conduct of the hearing,
giving of notices subsequent to those provided for in paragraph (a) of
this section, taking of testimony, exhibits, arguments and briefs,
requests for findings, and other related matters. Both the Department
and the recipient or other party shall be entitled to introduce all
relevant evidence on the issues as stated in the notice for hearing or
as determined by the officer conducting the hearing at the outset of or
during the hearing.
(2) Technical rules of evidence shall not apply to hearings
conducted pursuant to this part, but rules or principles designed to
assure production of the most credible evidence available and to subject
testimony to test by cross-examination shall be applied where reasonably
necessary by the officer conducting the hearing. The hearing officer may
exclude irrelevant, immaterial, or unduly repetitious evidence. All
documents and other evidence offered or taken for the record shall be
open to examination by the parties and opportunity shall be given to
refute facts and arguments advanced on either side of the issues. A
transcript shall be made of the oral evidence except to the extent the
substance thereof is stipulated for the record. All decisions shall be
based upon the hearing record and written findings shall be made.
(e) Consolidated or joint hearings. In cases in which the same or
related facts are asserted to constitute noncompliance with this part
with respect to two or more Federal statutes, authorities, or other
means by which Federal financial assistance is extended and to which
this part applies, or noncompliance with this part and the regulations
of one or more other Federal departments or agencies issued under Title
VI of the Act, the Secretary may, by agreement with such other
departments or agencies where applicable, provide for the conduct of
consolidated or joint hearings and for the application to such hearings
of rules of procedures not inconsistent with this part. Final decisions
in such cases, insofar as this part is concerned, shall be made in
accordance with Sec. 8.13.
[[Page 94]]
Sec. 8.13 Decisions and notices.
(a) Decision by person other than the responsible Department
official. If the hearing is held by a hearing officer such hearing
officer shall either make an initial decision, if so authorized, or
certify the entire record including his recommended findings and
proposed decision to the responsible Department official for a final
decision, and a copy of such initial decision or certification shall be
mailed to the recipient or other party subject to this part. Where the
initial decision is made by the hearing officer, the recipient or other
party may within 30 days of the mailing of such notice of initial
decision file with the responsible Department official his exceptions to
the initial decision, with his reasons therefor. In the absence of
exceptions, the responsible Department official may on his own motion
within 45 days after the initial decision serve on the recipient or
other party a notice that he will review the decision. Upon the filing
of such exceptions or of such notice of review, the responsible
Department official shall review the initial decision and issue his own
decision thereon including the reasons therefor. In the absence of
either exceptions or a notice of review the initial decision shall
constitute the final decision of the responsible Department official.
(b) Decisions on record or review by the responsible Department
official. Whenever a record is certified to the responsible Department
official for decision or he reviews the decision of a hearing officer
pursuant to paragraph (a) of this section, or whenever the responsible
Department official conducts the hearing, the recipient or other party
shall be given reasonable opportunity to file with him briefs or other
written statements of its contentions, and a copy of the final decision
of the responsible Department official shall be given in writing to the
recipient or other party and to the complainant, if any.
(c) Decisions on record where a hearing is waived. Whenever a
hearing is waived pursuant to Sec. 8.12(a) a decision shall be made by
the responsible departmental official on the record and a copy of such
decision shall be given in writing to the recipient or other party, and
to the complainant, if any.
(d) Ruling required. Each decision of a hearing officer or
responsible Department official shall set forth his ruling on each
finding, conclusion, or exception presented, and shall identify the
requirement or requirements imposed by or pursuant to this part with
which it is found that the recipient or other party has failed to
comply.
(e) Approval by Secretary. Any final decision of a responsible
Department official (other than the Secretary) which provides for the
suspension or termination of, or the refusal to grant or continue,
Federal financial assistance, or the imposition of any other sanction
available under this part of the Act, shall promptly be transmitted to
the Secretary, who may approve such decision, may vacate it, or remit or
mitigate any sanction imposed.
(f) Content of orders. The final decision may provide for suspension
or termination of, or refusal to grant or continue, Federal financial
assistance, in whole or in part, to which this regulation applies, and
may contain such terms, conditions, and other provisions as are
consistent with and will effectuate the purposes of the Act and this
part, including provisions designed to assure that no Federal financial
assistance to which this regulation applies will thereafter be extended
to the recipient or other party determined by such decision to be in
default in its performance of an assurance given by it pursuant to this
part, or to have otherwise failed to comply with this part, unless and
until it corrects its noncompliance and satisfies the responsible
Department official that it will fully comply with this part.
(g) Posttermination proceedings. (1) Any recipient or other party
which is adversely affected by an order issued under paragraph (f) of
this section shall be restored to full eligibility to receive Federal
financial assistance if it satisfies the terms and conditions of that
order for such eligibility or if it brings itself into compliance with
this part and provides reasonable assurance that it will fully comply
with this part.
(2) Any recipient or other party adversely affected by an order
entered
[[Page 95]]
pursuant to paragraph (f) of this section may at any time request the
responsible Department official to restore fully its eligibility to
receive Federal financial assistance. Any such request shall be
supported by information showing that the recipient or other party has
met the requirements of paragraph (g)(1) of this section. If the
responsible Department official determines that those requirements have
been satisfied, he shall restore such eligibility.
(3) If the responsible Department official denies any such request,
the recipient or other party may submit a request for a hearing in
writing, specifying why it believes such official to have been in error.
It shall thereupon be given an expeditious hearing, with a decision on
the record in accordance with rules of procedure issued by the
responsible Department official. The recipient or other party will be
restored to such eligibility if it proves at such a hearing that it
satisfied the requirements of paragraph (g)(1) of this section. While
proceedings under this paragraph are pending, the sanctions imposed by
the order issued under paragraph (f) of this section shall remain in
effect.
Sec. 8.14 Judicial review.
Action taken pursuant to section 602 of the Act is subject to
judicial review as provided in section 603 of the Act.
Sec. 8.15 Effect on other laws; supplementary instructions;
coordination.
(a) Effect on other laws. All regulations, orders, or like
directions heretofore issued by any officer of the Department which
impose requirements designed to prohibit any discrimination against
individuals on the ground of race, color, or national origin under any
program to which this part applies, and which authorizes the suspension
or termination of or refusal to grant or to continue Federal financial
assistance to any recipient or other party subject to this part of such
assistance for failure to comply with such requirements, are hereby
superseded to the extent that such discrimination is prohibited by this
part, except that nothing in this part shall be deemed to relieve any
one of any obligations assumed or imposed under any such superseded
regulation, order, instruction, or like direction prior to January 9,
1965. Nothing in this part, however, shall be deemed to supersede any of
the following (including future amendments thereof):
(1) Executive Order 11246 and regulations issued thereunder, or
(2) Executive Order 11063 and regulations issued thereunder, or any
other regulations or instructions, insofar as such order, regulations,
or instructions prohibit discrimination on the ground of race, color, or
national origin in any program or situation to which this part is
inapplicable, or prohibit discrimination on any other ground.
(b) Forms and instructions. Each responsible Department official
shall issue and promptly make available to interested parties forms and
detailed instructions and procedures for effectuating this part as
applied to programs to which this part applies and for which he is
responsible.
(c) Supervision and coordination. The Secretary may from time to
time assign to officials of the Department, or to officials of other
departments or agencies of the Government with the consent of such
departments or agencies, responsibilities in connection with the
effectuation of the purposes of title VI of the Act and this part (other
than responsibility for final decision as provided in Sec. 8.13),
including the achievement of effective coordination and maximum
uniformity within the Department and within the executive branch of the
government in the application of title VI and this part to similar
programs and in similar situations. Any action taken, determination
made, or requirement imposed by an official of another Department or
agency acting pursuant to an assignment of responsibility under this
paragraph shall have the same effect as though such action had been
taken by the responsible official of this Department.
[[Page 96]]
Sec. Appendix A to Part 8--Federal Financial Assistance Covered by Title
VI
i. federal financial assistance to which title 15, subtitle a, part 8
applies
Economic Development Administration
1. Loans, grants, technical and other assistance for public works
and development facilities, for supplementing Federal grants-in-aid, for
private businesses, and for other purposes, including assistance in
connection with designated economic development districts and regions
(Public Works and Economic Development Act of 1965, as amended, 42
U.S.C. 3121 et seq.).
2. Financial and technical assistance to firms to aid economic
adjustment to the effects of increased imports in direct competition
with firm products (Trade Act of 1974, 19 U.S.C. 2341-2354).
3. Assistance to communities adversely affected by increased imports
in direct competition with products manufactured in the community area
(Trade Act of 1974, 19 U.S.C. 2371-2374).
4. Assistance to projects involving construction of local and State
public facilities in order to reduce unemployment and provide State and
local governments with badly needed public facilities (Local Public
Works Capital Development and Assistance Act of 1976, 42 U.S.C. 6701-
6710).
5. Trade adjustment assistance: Loans, dissemination of technical
information (title II of the Trade Act of 1974, 19 U.S.C. 2341-2374).
Maritime Administration
1. Operating differential subsidy assistance to operators of U.S.
flag vessels engaged in U.S. foreign commerce (46 U.S.C. 1171 et seq.).
2. Assistance to operate State maritime academies and colleges to
train merchant marine officers (46 U.S.C. 1381-1388).
3. Ship construction differential subsidies, direct payments
(Merchant Marine Act of 1936, as amended, 46 U.S.C. 1151-1161).
National Bureau of Standards
1. Grants to universities and other research organizations for fire
research and safety programs (15 U.S.C. 278f).
National Fire Prevention and Control Administration
1. Academy planning assistance: To assist States in the development
of training and education in the fire prevention and control area (15
U.S.C. 2201-2219).
2. State fire incident reporting assistance: To assist States in the
establishment and operation of a statewide fire incident and casualty
reporting system (15 U.S.C. 2201-2219).
3. Public education assistance planning: Publications, audiovisual
presentations and demonstrations, research, testing, and experimentation
to determine the most effective means for such public education (15
U.S.C. 2205c).
4. Policy development assistance: Studies of the operations and
management aspects of fire services (15 U.S.C. 2207c).
National Oceanic and Atmospheric Administration
1. Assistance to States, educational institutions, and the
commercial fishing industry for the development of tuna and other latent
fisheries (16 U.S.C. 758e).
2. Assistance to States for the development and implementation of
programs to protect and study certain species of marine mammals (16
U.S.C. 1379b).
3. Financial assistance to States with agencies which have entered
into a cooperative agreement to assist in the preservation of threatened
and endangered species (16 U.S.C. 1535).
4. Assistance to coastal States for the development of estuarine
sanctuaries to serve as field laboratories and for acquiring access to
public beaches (16 U.S.C. 1461).
5. Assistance to coastal States for the development, implementation,
and administration of coastal zone management programs (16 U.S.C. 1454-
1455).
6. Assistance to coastal States to help communities in dealing with
the economic, social, and environmental consequences resulting from
expanded coastal energy activity (16 U.S.C. 1456).
7. Authority to enter into cooperative agreements with ``colleges
and universities, with game and fish departments of the several States,
and with nonprofit organizations relating to cooperative research
units.'' Assistance limited to assignment of personnel, supplies, and
incidental expenses (16 U.S.C. 753 a and b).
8. Grants for education and training of personnel in the field of
commercial fishing, ``to public and nonprofit private universities and
colleges * * *'' (16 U.S.C. 760d).
9. Grants for ``office and any other necessary space'' for the
Northern Pacific Halibut Commission (16 U.S.C. 772).
10. The ``Dingell Johnson Act'': Apportionment of dollars to States
for restoration and management of sport or recreational species (16
U.S.C. 777-777i; 777k).
11. Authority to cooperate with and provide assistance to States in
controlling jellyfish, etc. (16 U.S.C. 1201, 1202).
12. Authority to cooperate with and provide assistance to certain
States and territories in the study and control of ``Crown of Thorns''
starfish (16 U.S.C. 1211-1213).
13. Technical assistance to fishing cooperatives regarding catching
and marketing aquatic products (15 U.S.C. 521-522).
[[Page 97]]
14. Fish research and experimentation program cooperation with other
agencies in acquisition of lands, construction of buildings, employment
of personnel in establishing and maintaining research stations (16
U.S.C. 778a).
15. Assistance to upgrade commercial fishing vessels and gear (16
U.S.C. 742c).
16. Assistance to State projects designed for the research and
development of commercial fisheries resources of the nation (16 U.S.C.
779a-779f).
17. Assistance to State and other non-Federal interests under
cooperative agreements to conserve, develop, and enhance anadromous and
Great Lakes Fisheries (16 U.S.C. 757a et seq.).
18. Grants and other assistance under the National Sea Grant College
and Program Act of 1966: To support establishment of major university
centers for marine research, education, training, and advisory services
(33 U.S.C. 1121-1124).
19. Geodetic surveys and services; advisory services; dissemination
of technical information (33 U.S.C. 883a).
20. Nautical charts assistance; advisory services; dissemination of
technical information (33 U.S.C. 883a).
21. River and flood forecast and warning services; advisory services
(15 U.S.C. 313).
22. Weather forecast and warning services (15 U.S.C. 311 and 313, 49
U.S.C. 1351 and 1463).
23. Commercial fisheries disaster assistance (16 U.S.C. 779b).
24. Provision for the Weather Service to assist in joint projects
``of mutual interest'' (15 U.S.C. 1525).
National Telecommunications and Information Administration
1. Grants for the planning and construction of public
telecommunications facilities for the production and distribution of
noncommercial educational and cultural radio and television programming
and related instructional and informational materials. (Public
Telecommunications Financing Act of 1978, 47 U.S.C. Sections 390-394).
Office of Minority Business Enterprise
1. Assistance to minority business enterprises: Grants, contracts,
advisory service, technical information (15 U.S.C. 1512; title III of
the Public Works and Economic Development Act of 1965, as amended, 42
U.S.C. 3151; Executive Order 11625, Oct. 13, 1971).
Regional Action Planning Commissions
1. Supplemental grants to Federal grant-in-aid programs and
technical assistance funds for planning, investigations, studies,
training programs, and demonstration projects, including demonstrations
in energy, transportation, health and nutrition, education and
indigenous arts and crafts (title V of the Public Works and Economic
Development Act of 1965, as amended, 42 U.S.C. 3181-3196).
United States Travel Service
1. Assistance to strengthen the domestic and foreign commerce of the
United States, and to promote friendly understanding and appreciation of
the United States by encouraging foreign residents to visit the United
States (22 U.S.C. 2121 et seq.).
Departmentwide
1. Authority to make basis scientific research grants (42 U.S.C.
1891-1893; to be superseded no later than Feb. 3, 1979, by the Federal
Grant and Cooperative Agreement Act of 1977, Pub. L. 95-224).
ii. a primary objective of the financial assistance authorized by the
following statutes, already listed above in appendix ai, is to provide
employment
1. Public Works and Economic Development Act of 1965, as amended (42
U.S.C. 3121 et seq.).
2. Trade Act of 1974 (19 U.S.C. 2341-2354).
3. Local Public Works Capital Development and Assistance Act of 1976
(42 U.S.C. 6701-6710)
[43 FR 49303, Oct. 23, 1978, as amended at 44 FR 12642, Mar. 8, 1979]
PART 8a_NONDISCRIMINATION ON THE BASIS OF SEX IN EDUCATION PROGRAMS OR
ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE--Table of Contents
Subpart A_Introduction
Sec.
8a.100 Purpose and effective date.
8a.105 Definitions.
8a.110 Remedial and affirmative action and self-evaluation.
8a.115 Assurance required.
8a.120 Transfers of property.
8a.125 Effect of other requirements.
8a.130 Effect of employment opportunities.
8a.135 Designation of responsible employee and adoption of grievance
procedures.
8a.140 Dissemination of policy.
Subpart B_Coverage
8a.200 Application.
8a.205 Educational institutions and other entities controlled by
religious organizations.
8a.210 Military and merchant marine educational institutions.
8a.215 Membership practices of certain organizations.
[[Page 98]]
8a.220 Admissions.
8a.225 Educational institutions eligible to submit transition plans.
8a.230 Transition plans.
8a.235 Statutory amendments.
Subpart C_Discrimination on the Basis of Sex in Admission and
Recruitment Prohibited
8a.300 Admission.
8a.305 Preference in admission.
8a.310 Recruitment.
Subpart D_Discrimination on the Basis of Sex in Education Programs or
Activities Prohibited
8a.400 Education programs or activities.
8a.405 Housing.
8a.410 Comparable facilities.
8a.415 Access to course offerings.
8a.420 Access to schools operated by LEAs.
8a.425 Counseling and use of appraisal and counseling materials.
8a.430 Financial assistance.
8a.435 Employment assistance to students.
8a.440 Health and insurance benefits and services.
8a.445 Marital or parental status.
8a.450 Athletics.
8a.455 Textbooks and curricular material.
Subpart E_Discrimination on the Basis of Sex in Employment in Education
Programs or Activities Prohibited
8a.500 Employment.
8a.505 Employment criteria.
8a.510 Recruitment.
8a.515 Compensation.
8a.520 Job classification and structure.
8a.525 Fringe benefits.
8a.530 Marital or parental status.
8a.535 Effect of state or local law or other requirements.
8a.540 Advertising.
8a.545 Pre-employment inquiries.
8a.550 Sex as a bona fide occupational qualification.
Subpart F_Procedures
8a.600 Notice of covered programs.
8a.605 Enforcement procedures.
Authority: 20 U.S.C. 1681, 1682, 1683, 1685, 1686, 1687, 1688.
Source: 65 FR 52865, 52877, Aug. 30, 2000, unless otherwise noted.
Subpart A_Introduction
Sec. 8a.100 Purpose and effective date.
The purpose of these Title IX regulations is to effectuate Title IX
of the Education Amendments of 1972, as amended (except sections 904 and
906 of those Amendments) (20 U.S.C. 1681, 1682, 1683, 1685, 1686, 1687,
1688), which is designed to eliminate (with certain exceptions)
discrimination on the basis of sex in any education program or activity
receiving Federal financial assistance, whether or not such program or
activity is offered or sponsored by an educational institution as
defined in these Title IX regulations. The effective date of these Title
IX regulations shall be September 29, 2000.
Sec. 8a.105 Definitions.
As used in these Title IX regulations, the term:
Administratively separate unit means a school, department, or
college of an educational institution (other than a local educational
agency) admission to which is independent of admission to any other
component of such institution.
Admission means selection for part-time, full-time, special,
associate, transfer, exchange, or any other enrollment, membership, or
matriculation in or at an education program or activity operated by a
recipient.
Applicant means one who submits an application, request, or plan
required to be approved by an official of the Federal agency that awards
Federal financial assistance, or by a recipient, as a condition to
becoming a recipient.
Designated agency official means with respect to any program
receiving Federal financial assistance, the Secretary or other official
of the Department who by law or by delegation has the principal
authority within the Department for the administration of a law
extending such assistance. Designated agency official also means any
officials so designated by due delegation of authority within the
Department to act in such capacity with regard to any program under
these Title IX regulations.
Educational institution means a local educational agency (LEA) as
defined by 20 U.S.C. 8801(18), a preschool, a private elementary or
secondary school, or an applicant or recipient that is an institution of
graduate higher education, an institution of undergraduate higher
education, an institution of professional education, or an institution
of
[[Page 99]]
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 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
[[Page 100]]
amended at 20 U.S.C. 1681-1688) (except sections 904 and 906 thereof),
as amended by section 3 of Public Law 93-568, 88 Stat. 1855, by section
412 of the Education Amendments of 1976, Public Law 94-482, 90 Stat.
2234, and by Section 3 of Public Law 100-259, 102 Stat. 28, 28-29 (20
U.S.C. 1681, 1682, 1683, 1685, 1686, 1687, 1688).
Title IX regulations means the provisions set forth at Sec. Sec.
8a.100 through 8a.605.
Transition plan means a plan subject to the approval of the
Secretary of Education pursuant to section 901(a)(2) of the Education
Amendments of 1972, 20 U.S.C. 1681(a)(2), under which an educational
institution operates in making the transition from being an educational
institution that admits only students of one sex to being one that
admits students of both sexes without discrimination.
Sec. 8a.110 Remedial and affirmative action and self-evaluation.
(a) Remedial action. If the designated agency official finds that a
recipient has discriminated against persons on the basis of sex in an
education program or activity, such recipient shall take such remedial
action as the designated agency official deems necessary to overcome the
effects of such discrimination.
(b) Affirmative action. In the absence of a finding of
discrimination on the basis of sex in an education program or activity,
a recipient may take affirmative action consistent with law to overcome
the effects of conditions that resulted in limited participation therein
by persons of a particular sex. Nothing in these Title IX regulations
shall be interpreted to alter any affirmative action obligations that a
recipient may have under Executive Order 11246, 3 CFR, 1964-1965 Comp.,
p. 339; as amended by Executive Order 11375, 3 CFR, 1966-1970 Comp., p.
684; as amended by Executive Order 11478, 3 CFR, 1966-1970 Comp., p.
803; as amended by Executive Order 12086, 3 CFR, 1978 Comp., p. 230; as
amended by Executive Order 12107, 3 CFR, 1978 Comp., p. 264.
(c) Self-evaluation. Each recipient education institution shall,
within one year of September 29, 2000:
(1) Evaluate, in terms of the requirements of these Title IX
regulations, its current policies and practices and the effects thereof
concerning admission of students, treatment of students, and employment
of both academic and non-academic personnel working in connection with
the recipient's education program or activity;
(2) Modify any of these policies and practices that do not or may
not meet the requirements of these Title IX regulations; and
(3) Take appropriate remedial steps to eliminate the effects of any
discrimination that resulted or may have resulted from adherence to
these policies and practices.
(d) Availability of self-evaluation and related materials.
Recipients shall maintain on file for at least three years following
completion of the evaluation required under paragraph (c) of this
section, and shall provide to the designated agency official upon
request, a description of any modifications made pursuant to paragraph
(c)(2) of this section and of any remedial steps taken pursuant to
paragraph (c)(3) of this section.
Sec. 8a.115 Assurance required.
(a) General. Either at the application stage or the award stage,
Federal agencies must ensure that applications for Federal financial
assistance or awards of Federal financial assistance contain, be
accompanied by, or be covered by a specifically identified assurance
from the applicant or recipient, satisfactory to the designated agency
official, that each education program or activity operated by the
applicant or recipient and to which these Title IX regulations apply
will be operated in compliance with these Title IX regulations. An
assurance of compliance with these Title IX regulations shall not be
satisfactory to the designated agency official if the applicant or
recipient to whom such assurance applies fails to commit itself to take
whatever remedial action is necessary in accordance with Sec. 8a.110(a)
to eliminate existing discrimination on the basis of sex or to eliminate
the effects of past discrimination whether occurring prior to or
subsequent to the submission to the designated agency official of such
assurance.
[[Page 101]]
(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. 8a.120 Transfers of property.
If a recipient sells or otherwise transfers property financed in
whole or in part with Federal financial assistance to a transferee that
operates any education program or activity, and the Federal share of the
fair market value of the property is not upon such sale or transfer
properly accounted for to the Federal Government, both the transferor
and the transferee shall be deemed to be recipients, subject to the
provisions of Sec. Sec. 8a.205 through 8a.235(a).
Sec. 8a.125 Effect of other requirements.
(a) Effect of other Federal provisions. The obligations imposed by
these Title IX regulations are independent of, and do not alter,
obligations not to discriminate on the basis of sex imposed by Executive
Order 11246, 3 CFR, 1964-1965 Comp., p. 339; as amended by Executive
Order 11375, 3 CFR, 1966-1970 Comp., p. 684; as amended by Executive
Order 11478, 3 CFR, 1966-1970 Comp., p. 803; as amended by Executive
Order 12087, 3 CFR, 1978 Comp., p. 230; as amended by Executive Order
12107, 3 CFR, 1978 Comp., p. 264; sections 704 and 855 of the Public
Health Service Act (42 U.S.C. 295m, 298b-2); Title VII of the Civil
Rights Act of 1964 (42 U.S.C. 2000e et seq.); the Equal Pay Act of 1963
(29 U.S.C. 206); and any other Act of Congress or Federal regulation.
(b) Effect of State or local law or other requirements. The
obligation to comply with these Title IX regulations is not obviated or
alleviated by any State or local law or other requirement that would
render any applicant or student ineligible, or limit the eligibility of
any applicant or student, on the basis of sex, to practice any
occupation or profession.
(c) Effect of rules or regulations of private organizations. The
obligation to comply with these Title IX regulations is not obviated or
alleviated by any rule or regulation of any organization, club, athletic
or other league, or association that would render any applicant or
student ineligible to participate or limit the eligibility or
participation of any applicant or student, on the basis of sex, in any
education program or activity operated by a recipient and that receives
Federal financial assistance.
Sec. 8a.130 Effect of employment opportunities.
The obligation to comply with these Title IX regulations is not
obviated or alleviated because employment opportunities in any
occupation or profession are or may be more limited for members of one
sex than for members of the other sex.
Sec. 8a.135 Designation of responsible employee and adoption of grievance
procedures.
(a) Designation of responsible employee. Each recipient shall
designate at least one employee to coordinate its efforts to comply with
and carry out its responsibilities under these Title IX regulations,
including any investigation of any complaint communicated to such
[[Page 102]]
recipient alleging its noncompliance with these Title IX regulations or
alleging any actions that would be prohibited by these Title IX
regulations. The recipient shall notify all its students and employees
of the name, office address, and telephone number of the employee or
employees appointed pursuant to this paragraph.
(b) Complaint procedure of recipient. A recipient shall adopt and
publish grievance procedures providing for prompt and equitable
resolution of student and employee complaints alleging any action that
would be prohibited by these Title IX regulations.
Sec. 8a.140 Dissemination of policy.
(a) Notification of policy. (1) Each recipient shall implement
specific and continuing steps to notify applicants for admission and
employment, students and parents of elementary and secondary school
students, employees, sources of referral of applicants for admission and
employment, and all unions or professional organizations holding
collective bargaining or professional agreements with the recipient,
that it does not discriminate on the basis of sex in the educational
programs or activities that it operates, and that it is required by
Title IX and these Title IX regulations not to discriminate in such a
manner. Such notification shall contain such information, and be made in
such manner, as the designated agency official finds necessary to
apprise such persons of the protections against discrimination assured
them by Title IX and these Title IX regulations, but shall state at
least that the requirement not to discriminate in education programs or
activities extends to employment therein, and to admission thereto
unless Sec. Sec. 8a.300 through 8a.310 do not apply to the recipient,
and that inquiries concerning the application of Title IX and these
Title IX regulations to such recipient may be referred to the employee
designated pursuant to Sec. 8a.135, or to the designated agency
official.
(2) Each recipient shall make the initial notification required by
paragraph (a)(1) of this section within 90 days of September 29, 2000 or
of the date these Title IX regulations first apply to such recipient,
whichever comes later, which notification shall include publication in:
(i) Newspapers and magazines operated by such recipient or by
student, alumnae, or alumni groups for or in connection with such
recipient; and
(ii) Memoranda or other written communications distributed to every
student and employee of such recipient.
(b) Publications. (1) Each recipient shall prominently include a
statement of the policy described in paragraph (a) of this section in
each announcement, bulletin, catalog, or application form that it makes
available to any person of a type, described in paragraph (a) of this
section, or which is otherwise used in connection with the recruitment
of students or employees.
(2) A recipient shall not use or distribute a publication of the
type described in paragraph (b)(1) of this section that suggests, by
text or illustration, that such recipient treats applicants, students,
or employees differently on the basis of sex except as such treatment is
permitted by these Title IX regulations.
(c) Distribution. Each recipient shall distribute without
discrimination on the basis of sex each publication described in
paragraph (b)(1) of this section, and shall apprise each of its
admission and employment recruitment representatives of the policy of
nondiscrimination described in paragraph (a) of this section, and shall
require such representatives to adhere to such policy.
Subpart B_Coverage
Sec. 8a.200 Application.
Except as provided in Sec. Sec. 8a.205 through 8a.235(a), these
Title IX regulations apply to every recipient and to each education
program or activity operated by such recipient that receives Federal
financial assistance.
Sec. 8a.205 Educational institutions and other entities controlled by
religious organizations.
(a) Exemption. These Title IX regulations do not apply to any
operation of an educational institution or other entity that is
controlled by a religious organization to the extent that application of
these Title IX regulations
[[Page 103]]
would not be consistent with the religious tenets of such organization.
(b) Exemption claims. An educational institution or other entity
that wishes to claim the exemption set forth in paragraph (a) of this
section shall do so by submitting in writing to the designated agency
official a statement by the highest-ranking official of the institution,
identifying the provisions of these Title IX regulations that conflict
with a specific tenet of the religious organization.
Sec. 8a.210 Military and merchant marine educational institutions.
These Title IX regulations do not apply to an educational
institution whose primary purpose is the training of individuals for a
military service of the United States or for the merchant marine.
Sec. 8a.215 Membership practices of certain organizations.
(a) Social fraternities and sororities. These Title IX regulations
do not apply to the membership practices of social fraternities and
sororities that are exempt from taxation under section 501(a) of the
Internal Revenue Code of 1954, 26 U.S.C. 501(a), the active membership
of which consists primarily of students in attendance at institutions of
higher education.
(b) YMCA, YWCA, Girl Scouts, Boy Scouts, and Camp Fire Girls. These
Title IX regulations do not apply to the membership practices of the
Young Men's Christian Association (YMCA), the Young Women's Christian
Association (YWCA), the Girl Scouts, the Boy Scouts, and Camp Fire
Girls.
(c) Voluntary youth service organizations. These Title IX
regulations do not apply to the membership practices of a voluntary
youth service organization that is exempt from taxation under section
501(a) of the Internal Revenue Code of 1954, 26 U.S.C. 501(a), and the
membership of which has been traditionally limited to members of one sex
and principally to persons of less than nineteen years of age.
Sec. 8a.220 Admissions.
(a) Admissions to educational institutions prior to June 24, 1973,
are not covered by these Title IX regulations.
(b) Administratively separate units. For the purposes only of this
section, Sec. Sec. 8a.225 and 8a.230, and Sec. Sec. 8a.300 through
8a.310, each administratively separate unit shall be deemed to be an
educational institution.
(c) Application of Sec. Sec. 8a.300 through .310. Except as
provided in paragraphs (d) and (e) of this section, Sec. Sec. 8a.300
through 8a.310 apply to each recipient. A recipient to which Sec. Sec.
8a.300 through 8a.310 apply shall not discriminate on the basis of sex
in admission or recruitment in violation of Sec. Sec. 8a.300 through
8a.310.
(d) Educational institutions. Except as provided in paragraph (e) of
this section as to recipients that are educational institutions,
Sec. Sec. 8a.300 through 8a.310 apply only to institutions of
vocational education, professional education, graduate higher education,
and public institutions of undergraduate higher education.
(e) Public institutions of undergraduate higher education.
Sec. Sec. 8a.300 through 8a.310 do not apply to any public institution
of undergraduate higher education that traditionally and continually
from its establishment has had a policy of admitting students of only
one sex.
Sec. 8a.225 Educational institutions eligible to submit transition plans.
(a) Application. This section applies to each educational
institution to which Sec. Sec. 8a.300 through 8a.310 apply that:
(1) Admitted students of only one sex as regular students as of June
23, 1972; or
(2) Admitted students of only one sex as regular students as of June
23, 1965, but thereafter admitted, as regular students, students of the
sex not admitted prior to June 23, 1965.
(b) Provision for transition plans. An educational institution to
which this section applies shall not discriminate on the basis of sex in
admission or recruitment in violation of Sec. Sec. 8a.300 through
8a.310.
Sec. 8a.230 Transition plans.
(a) Submission of plans. An institution to which Sec. 8a.225
applies and that is composed of more than one administratively separate
unit may submit either a single transition plan applicable to
[[Page 104]]
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. 8a.225 applies shall result in treatment of applicants to or
students of such recipient in violation of Sec. Sec. 8a.300 through
8a.310 unless such treatment is necessitated by an obstacle identified
in paragraph (b)(3) of this section and a schedule for eliminating that
obstacle has been provided as required by paragraph (b)(4) of this
section.
(d) Effects of past exclusion. To overcome the effects of past
exclusion of students on the basis of sex, each educational institution
to which Sec. 8a.225 applies shall include in its transition plan, and
shall implement, specific steps designed to encourage individuals of the
previously excluded sex to apply for admission to such institution. Such
steps shall include instituting recruitment programs that emphasize the
institution's commitment to enrolling students of the sex previously
excluded.
Sec. 8a.235 Statutory amendments.
(a) This section, which applies to all provisions of these Title IX
regulations, addresses statutory amendments to Title IX.
(b) These Title IX regulations shall not apply to or preclude:
(1) Any program or activity of the American Legion undertaken in
connection with the organization or operation of any Boys State
conference, Boys Nation conference, Girls State conference, or Girls
Nation conference;
(2) Any program or activity of a secondary school or educational
institution specifically for:
(i) The promotion of any Boys State conference, Boys Nation
conference, Girls State conference, or Girls Nation conference; or
(ii) The selection of students to attend any such conference;
(3) Father-son or mother-daughter activities at an educational
institution or in an education program or activity, but if such
activities are provided for students of one sex, opportunities for
reasonably comparable activities shall be provided to students of the
other sex;
(4) Any scholarship or other financial assistance awarded by an
institution of higher education to an individual because such individual
has received such award in a single-sex pageant based upon a combination
of factors related to the individual's personal appearance, poise, and
talent. The pageant, however, must comply with other nondiscrimination
provisions of Federal law.
(c) Program or activity or program means:
(1) All of the operations of any entity described in paragraphs
(c)(1)(i) through (iv) of this section, any part of which is extended
Federal financial assistance:
(i)(A) A department, agency, special purpose district, or other
instrumentality of a State or of a local government; or
[[Page 105]]
(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. 8a.300 Admission.
(a) General. No person shall, on the basis of sex, be denied
admission, or be subjected to discrimination in admission, by any
recipient to which Sec. Sec. 8a.300 through Sec. Sec. 8a.310 apply,
except as provided in Sec. Sec. 8a.225 and Sec. Sec. 8a.230.
(b) Specific prohibitions. (1) In determining whether a person
satisfies any policy or criterion for admission, or in making any offer
of admission, a recipient to which Sec. Sec. 8a.300 through 8a.310
apply shall not:
(i) Give preference to one person over another on the basis of sex,
by ranking applicants separately on such basis, or otherwise;
(ii) Apply numerical limitations upon the number or proportion of
persons of either sex who may be admitted; or
(iii) Otherwise treat one individual differently from another on the
basis of sex.
(2) A recipient shall not administer or operate any test or other
criterion for admission that has a disproportionately adverse effect on
persons on the
[[Page 106]]
basis of sex unless the use of such test or criterion is shown to
predict validly success in the education program or activity in question
and alternative tests or criteria that do not have such a
disproportionately adverse effect are shown to be unavailable.
(c) Prohibitions relating to marital or parental status. In
determining whether a person satisfies any policy or criterion for
admission, or in making any offer of admission, a recipient to which
Sec. Sec. 8a.300 through 8a.310 apply:
(1) Shall not apply any rule concerning the actual or potential
parental, family, or marital status of a student or applicant that
treats persons differently on the basis of sex;
(2) Shall not discriminate against or exclude any person on the
basis of pregnancy, childbirth, termination of pregnancy, or recovery
therefrom, or establish or follow any rule or practice that so
discriminates or excludes;
(3) Subject to Sec. 8a.235(d), shall treat disabilities related to
pregnancy, childbirth, termination of pregnancy, or recovery therefrom
in the same manner and under the same policies as any other temporary
disability or physical condition; and
(4) Shall not make pre-admission inquiry as to the marital status of
an applicant for admission, including whether such applicant is ``Miss''
or ``Mrs.'' A recipient may make pre-admission inquiry as to the sex of
an applicant for admission, but only if such inquiry is made equally of
such applicants of both sexes and if the results of such inquiry are not
used in connection with discrimination prohibited by these Title IX
regulations.
Sec. 8a.305 Preference in admission.
A recipient to which Sec. Sec. 8a.300 through 8a.310 apply shall
not give preference to applicants for admission, on the basis of
attendance at any educational institution or other school or entity that
admits as students only or predominantly members of one sex, if the
giving of such preference has the effect of discriminating on the basis
of sex in violation of Sec. Sec. 8a.300 through 8a.310.
Sec. 8a.310 Recruitment.
(a) Nondiscriminatory recruitment. A recipient to which Sec. Sec.
8a.300 through 8a.310 apply shall not discriminate on the basis of sex
in the recruitment and admission of students. A recipient may be
required to undertake additional recruitment efforts for one sex as
remedial action pursuant to Sec. 8a.110(a), and may choose to undertake
such efforts as affirmative action pursuant to Sec. 8a.110(b).
(b) Recruitment at certain institutions. A recipient to which
Sec. Sec. 8a.300 through 8a.310 apply shall not recruit primarily or
exclusively at educational institutions, schools, or entities that admit
as students only or predominantly members of one sex, if such actions
have the effect of discriminating on the basis of sex in violation of
Sec. Sec. 8a.300 through 8a.310.
Subpart D_Discrimination on the Basis of Sex in Education Programs or
Activities Prohibited
Sec. 8a.400 Education programs or activities.
(a) General. Except as provided elsewhere in these Title IX
regulations, no person shall, on the basis of sex, be excluded from
participation in, be denied the benefits of, or be subjected to
discrimination under any academic, extracurricular, research,
occupational training, or other education program or activity operated
by a recipient that receives Federal financial assistance. Sections
8a.400 through 8a.455 do not apply to actions of a recipient in
connection with admission of its students to an education program or
activity of a recipient to which Sec. Sec. 8a.300 through 8a.310 do not
apply, or an entity, not a recipient, to which Sec. Sec. 8a.300 through
8a.310 would not apply if the entity were a recipient.
(b) Specific prohibitions. Except as provided in Sec. Sec. 8a.400
through 8a.455, in providing any aid, benefit, or service to a student,
a recipient shall not, on the basis of sex:
(1) Treat one person differently from another in determining whether
such person satisfies any requirement or condition for the provision of
such aid, benefit, or service;
(2) Provide different aid, benefits, or services or provide aid,
benefits, or services in a different manner;
[[Page 107]]
(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. 8a.405 Housing.
(a) Generally. A recipient shall not, on the basis of sex, apply
different rules or regulations, impose different fees or requirements,
or offer different services or benefits related to housing, except as
provided in this section (including housing provided only to married
students).
(b) Housing provided by recipient. (1) A recipient may provide
separate housing on the basis of sex.
(2) Housing provided by a recipient to students of one sex, when
compared to that provided to students of the other sex, shall be as a
whole:
(i) Proportionate in quantity to the number of students of that sex
applying for such housing; and
(ii) Comparable in quality and cost to the student.
(c) Other housing. (1) A recipient shall not, on the basis of sex,
administer different policies or practices concerning occupancy by its
students of housing other than that provided by such recipient.
(2)(i) A recipient which, through solicitation, listing, approval of
housing, or otherwise, assists any agency, organization, or person in
making housing available to any of its students, shall take such
reasonable action as may be necessary to assure itself that such housing
as is provided to students of one sex, when compared to that provided to
students of the other sex, is as a whole:
(A) Proportionate in quantity; and
(B) Comparable in quality and cost to the student.
(ii) A recipient may render such assistance to any agency,
organization, or person that provides all or part of such housing to
students of only one sex.
[[Page 108]]
Sec. 8a.410 Comparable facilities.
A recipient may provide separate toilet, locker room, and shower
facilities on the basis of sex, but such facilities provided for
students of one sex shall be comparable to such facilities provided for
students of the other sex.
Sec. 8a.415 Access to course offerings.
(a) A recipient shall not provide any course or otherwise carry out
any of its education program or activity separately on the basis of sex,
or require or refuse participation therein by any of its students on
such basis, including health, physical education, industrial, business,
vocational, technical, home economics, music, and adult education
courses.
(b)(1) With respect to classes and activities in physical education
at the elementary school level, the recipient shall comply fully with
this section as expeditiously as possible but in no event later than one
year from September 29, 2000. With respect to physical education classes
and activities at the secondary and post-secondary levels, the recipient
shall comply fully with this section as expeditiously as possible but in
no event later than three years from September 29, 2000.
(2) This section does not prohibit grouping of students in physical
education classes and activities by ability as assessed by objective
standards of individual performance developed and applied without regard
to sex.
(3) This section does not prohibit separation of students by sex
within physical education classes or activities during participation in
wrestling, boxing, rugby, ice hockey, football, basketball, and other
sports the purpose or major activity of which involves bodily contact.
(4) Where use of a single standard of measuring skill or progress in
a physical education class has an adverse effect on members of one sex,
the recipient shall use appropriate standards that do not have such
effect.
(5) Portions of classes in elementary and secondary schools, or
portions of education programs or activities, that deal exclusively with
human sexuality may be conducted in separate sessions for boys and
girls.
(6) Recipients may make requirements based on vocal range or quality
that may result in a chorus or choruses of one or predominantly one sex.
Sec. 8a.420 Access to schools operated by LEAs.
A recipient that is a local educational agency shall not, on the
basis of sex, exclude any person from admission to:
(a) Any institution of vocational education operated by such
recipient; or
(b) Any other school or educational unit operated by such recipient,
unless such recipient otherwise makes available to such person, pursuant
to the same policies and criteria of admission, courses, services, and
facilities comparable to each course, service, and facility offered in
or through such schools.
Sec. 8a.425 Counseling and use of appraisal and counseling materials.
(a) Counseling. A recipient shall not discriminate against any
person on the basis of sex in the counseling or guidance of students or
applicants for admission.
(b) Use of appraisal and counseling materials. A recipient that uses
testing or other materials for appraising or counseling students shall
not use different materials for students on the basis of their sex or
use materials that permit or require different treatment of students on
such basis unless such different materials cover the same occupations
and interest areas and the use of such different materials is shown to
be essential to eliminate sex bias. Recipients shall develop and use
internal procedures for ensuring that such materials do not discriminate
on the basis of sex. Where the use of a counseling test or other
instrument results in a substantially disproportionate number of members
of one sex in any particular course of study or classification, the
recipient shall take such action as is necessary to assure itself that
such disproportion is not the result of discrimination in the instrument
or its application.
(c) Disproportion in classes. Where a recipient finds that a
particular class contains a substantially disproportionate number of
individuals of one
[[Page 109]]
sex, the recipient shall take such action as is necessary to assure
itself that such disproportion is not the result of discrimination on
the basis of sex in counseling or appraisal materials or by counselors.
Sec. 8a.430 Financial assistance.
(a) General. Except as provided in paragraphs (b) and (c) of this
section, in providing financial assistance to any of its students, a
recipient shall not:
(1) On the basis of sex, provide different amounts or types of such
assistance, limit eligibility for such assistance that is of any
particular type or source, apply different criteria, or otherwise
discriminate;
(2) Through solicitation, listing, approval, provision of
facilities, or other services, assist any foundation, trust, agency,
organization, or person that provides assistance to any of such
recipient's students in a manner that discriminates on the basis of sex;
or
(3) Apply any rule or assist in application of any rule concerning
eligibility for such assistance that treats persons of one sex
differently from persons of the other sex with regard to marital or
parental status.
(b) Financial aid established by certain legal instruments. (1) A
recipient may administer or assist in the administration of
scholarships, fellowships, or other forms of financial assistance
established pursuant to domestic or foreign wills, trusts, bequests, or
similar legal instruments or by acts of a foreign government that
require that awards be made to members of a particular sex specified
therein; Provided, that the overall effect of the award of such sex-
restricted scholarships, fellowships, and other forms of financial
assistance does not discriminate on the basis of sex.
(2) To ensure nondiscriminatory awards of assistance as required in
paragraph (b)(1) of this section, recipients shall develop and use
procedures under which:
(i) Students are selected for award of financial assistance on the
basis of nondiscriminatory criteria and not on the basis of availability
of funds restricted to members of a particular sex;
(ii) An appropriate sex-restricted scholarship, fellowship, or other
form of financial assistance is allocated to each student selected under
paragraph (b)(2)(i) of this section; and
(iii) No student is denied the award for which he or she was
selected under paragraph (b)(2)(i) of this section because of the
absence of a scholarship, fellowship, or other form of financial
assistance designated for a member of that student's sex.
(c) Athletic scholarships. (1) To the extent that a recipient awards
athletic scholarships or grants-in-aid, it must provide reasonable
opportunities for such awards for members of each sex in proportion to
the number of students of each sex participating in interscholastic or
intercollegiate athletics.
(2) A recipient may provide separate athletic scholarships or
grants-in-aid for members of each sex as part of separate athletic teams
for members of each sex to the extent consistent with this paragraph (c)
and Sec. 8a.450.
Sec. 8a.435 Employment assistance to students.
(a) Assistance by recipient in making available outside employment.
A recipient that assists any agency, organization, or person in making
employment available to any of its students:
(1) Shall assure itself that such employment is made available
without discrimination on the basis of sex; and
(2) Shall not render such services to any agency, organization, or
person that discriminates on the basis of sex in its employment
practices.
(b) Employment of students by recipients. A recipient that employs
any of its students shall not do so in a manner that violates Sec. Sec.
8a.500 through 8a.550.
Sec. 8a.440 Health and insurance benefits and services.
Subject to Sec. 8a.235(d), in providing a medical, hospital,
accident, or life insurance benefit, service, policy, or plan to any of
its students, a recipient shall not discriminate on the basis of sex, or
provide such benefit, service, policy, or plan in a manner that would
violate Sec. Sec. 8a.500 through 8a.550 if it were provided to
employees of the recipient. This section shall not prohibit a recipient
from providing any benefit or service that may be used by a different
proportion of students of one sex than of
[[Page 110]]
the other, including family planning services. However, any recipient
that provides full coverage health service shall provide gynecological
care.
Sec. 8a.445 Marital or parental status.
(a) Status generally. A recipient shall not apply any rule
concerning a student's actual or potential parental, family, or marital
status that treats students differently on the basis of sex.
(b) Pregnancy and related conditions. (1) A recipient shall not
discriminate against any student, or exclude any student from its
education program or activity, including any class or extracurricular
activity, on the basis of such student's pregnancy, childbirth, false
pregnancy, termination of pregnancy, or recovery therefrom, unless the
student requests voluntarily to participate in a separate portion of the
program or activity of the recipient.
(2) A recipient may require such a student to obtain the
certification of a physician that the student is physically and
emotionally able to continue participation as long as such a
certification is required of all students for other physical or
emotional conditions requiring the attention of a physician.
(3) A recipient that operates a portion of its education program or
activity separately for pregnant students, admittance to which is
completely voluntary on the part of the student as provided in paragraph
(b)(1) of this section, shall ensure that the separate portion is
comparable to that offered to non-pregnant students.
(4) Subject to Sec. 8a.235(d), a recipient shall treat pregnancy,
childbirth, false pregnancy, termination of pregnancy and recovery
therefrom in the same manner and under the same policies as any other
temporary disability with respect to any medical or hospital benefit,
service, plan, or policy that such recipient administers, operates,
offers, or participates in with respect to students admitted to the
recipient's educational program or activity.
(5) In the case of a recipient that does not maintain a leave policy
for its students, or in the case of a student who does not otherwise
qualify for leave under such a policy, a recipient shall treat
pregnancy, childbirth, false pregnancy, termination of pregnancy, and
recovery therefrom as a justification for a leave of absence for as long
a period of time as is deemed medically necessary by the student's
physician, at the conclusion of which the student shall be reinstated to
the status that she held when the leave began.
Sec. 8a.450 Athletics.
(a) General. No person shall, on the basis of sex, be excluded from
participation in, be denied the benefits of, be treated differently from
another person, or otherwise be discriminated against in any
interscholastic, intercollegiate, club, or intramural athletics offered
by a recipient, and no recipient shall provide any such athletics
separately on such basis.
(b) Separate teams. Notwithstanding the requirements of paragraph
(a) of this section, a recipient may operate or sponsor separate teams
for members of each sex where selection for such teams is based upon
competitive skill or the activity involved is a contact sport. However,
where a recipient operates or sponsors a team in a particular sport for
members of one sex but operates or sponsors no such team for members of
the other sex, and athletic opportunities for members of that sex have
previously been limited, members of the excluded sex must be allowed to
try out for the team offered unless the sport involved is a contact
sport. For the purposes of these Title IX regulations, contact sports
include boxing, wrestling, rugby, ice hockey, football, basketball, and
other sports the purpose or major activity of which involves bodily
contact.
(c) Equal opportunity. (1) A recipient that operates or sponsors
interscholastic, intercollegiate, club, or intramural athletics shall
provide equal athletic opportunity for members of both sexes. In
determining whether equal opportunities are available, the designated
agency official will consider, among other factors:
(i) Whether the selection of sports and levels of competition
effectively accommodate the interests and abilities of members of both
sexes;
(ii) The provision of equipment and supplies;
(iii) Scheduling of games and practice time;
[[Page 111]]
(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. 8a.455 Textbooks and curricular material.
Nothing in these Title IX regulations shall be interpreted as
requiring or prohibiting or abridging in any way the use of particular
textbooks or curricular materials.
Subpart E_Discrimination on the Basis of Sex in Employment in Education
Programs or Activities Prohibited
Sec. 8a.500 Employment.
(a) General. (1) No person shall, on the basis of sex, be excluded
from participation in, be denied the benefits of, or be subjected to
discrimination in employment, or recruitment, consideration, or
selection therefor, whether full-time or part-time, under any education
program or activity operated by a recipient that receives Federal
financial assistance.
(2) A recipient shall make all employment decisions in any education
program or activity operated by such recipient in a nondiscriminatory
manner and shall not limit, segregate, or classify applicants or
employees in any way that could adversely affect any applicant's or
employee's employment opportunities or status because of sex.
(3) A recipient shall not enter into any contractual or other
relationship which directly or indirectly has the effect of subjecting
employees or students to discrimination prohibited by Sec. Sec. 8a.500
through 8a.550, including relationships with employment and referral
agencies, with labor unions, and with organizations providing or
administering fringe benefits to employees of the recipient.
(4) A recipient shall not grant preferences to applicants for
employment on the basis of attendance at any educational institution or
entity that admits as students only or predominantly members of one sex,
if the giving of such preferences has the effect of discriminating on
the basis of sex in violation of these Title IX regulations.
(b) Application. The provisions of Sec. Sec. 8a.500 through 8a.550
apply to:
(1) Recruitment, advertising, and the process of application for
employment;
(2) Hiring, upgrading, promotion, consideration for and award of
tenure, demotion, transfer, layoff, termination, application of nepotism
policies, right of return from layoff, and rehiring;
(3) Rates of pay or any other form of compensation, and changes in
compensation;
(4) Job assignments, classifications, and structure, including
position descriptions, lines of progression, and seniority lists;
(5) The terms of any collective bargaining agreement;
(6) Granting and return from leaves of absence, leave for pregnancy,
childbirth, false pregnancy, termination of pregnancy, leave for persons
of either sex to care for children or dependents, or any other leave;
[[Page 112]]
(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. 8a.505 Employment criteria.
A recipient shall not administer or operate any test or other
criterion for any employment opportunity that has a disproportionately
adverse effect on persons on the basis of sex unless:
(a) Use of such test or other criterion is shown to predict validly
successful performance in the position in question; and
(b) Alternative tests or criteria for such purpose, which do not
have such disproportionately adverse effect, are shown to be
unavailable.
Sec. 8a.510 Recruitment.
(a) Nondiscriminatory recruitment and hiring. A recipient shall not
discriminate on the basis of sex in the recruitment and hiring of
employees. Where a recipient has been found to be presently
discriminating on the basis of sex in the recruitment or hiring of
employees, or has been found to have so discriminated in the past, the
recipient shall recruit members of the sex so discriminated against so
as to overcome the effects of such past or present discrimination.
(b) Recruitment patterns. A recipient shall not recruit primarily or
exclusively at entities that furnish as applicants only or predominantly
members of one sex if such actions have the effect of discriminating on
the basis of sex in violation of Sec. Sec. 8a.500 through 8a.550.
Sec. 8a.515 Compensation.
A recipient shall not make or enforce any policy or practice that,
on the basis of sex:
(a) Makes distinctions in rates of pay or other compensation;
(b) Results in the payment of wages to employees of one sex at a
rate less than that paid to employees of the opposite sex for equal work
on jobs the performance of which requires equal skill, effort, and
responsibility, and that are performed under similar working conditions.
Sec. 8a.520 Job classification and structure.
A recipient shall not:
(a) Classify a job as being for males or for females;
(b) Maintain or establish separate lines of progression, seniority
lists, career ladders, or tenure systems based on sex; or
(c) Maintain or establish separate lines of progression, seniority
systems, career ladders, or tenure systems for similar jobs, position
descriptions, or job requirements that classify persons on the basis of
sex, unless sex is a bona fide occupational qualification for the
positions in question as set forth in Sec. 8a.550.
Sec. 8a.525 Fringe benefits.
(a) ``Fringe benefits'' defined. For purposes of these Title IX
regulations, fringe benefits means: Any medical, hospital, accident,
life insurance, or retirement benefit, service, policy or plan, any
profit-sharing or bonus plan, leave, and any other benefit or service of
employment not subject to the provision of Sec. 8a.515.
(b) Prohibitions. A recipient shall not:
(1) Discriminate on the basis of sex with regard to making fringe
benefits available to employees or make fringe benefits available to
spouses, families, or dependents of employees differently upon the basis
of the employee's sex;
(2) Administer, operate, offer, or participate in a fringe benefit
plan that does not provide for equal periodic benefits for members of
each sex and for equal contributions to the plan by such recipient for
members of each sex; or
(3) Administer, operate, offer, or participate in a pension or
retirement plan that establishes different optional or compulsory
retirement ages based on sex or that otherwise discriminates in benefits
on the basis of sex.
[[Page 113]]
Sec. 8a.530 Marital or parental status.
(a) General. A recipient shall not apply any policy or take any
employment action:
(1) Concerning the potential marital, parental, or family status of
an employee or applicant for employment that treats persons differently
on the basis of sex; or
(2) Which is based upon whether an employee or applicant for
employment is the head of household or principal wage earner in such
employee's or applicant's family unit.
(b) Pregnancy. A recipient shall not discriminate against or exclude
from employment any employee or applicant for employment on the basis of
pregnancy, childbirth, false pregnancy, termination of pregnancy, or
recovery therefrom.
(c) Pregnancy as a temporary disability. Subject to Sec. 8a.235(d),
a recipient shall treat pregnancy, childbirth, false pregnancy,
termination of pregnancy, recovery therefrom, and any temporary
disability resulting therefrom as any other temporary disability for all
job-related purposes, including commencement, duration, and extensions
of leave, payment of disability income, accrual of seniority and any
other benefit or service, and reinstatement, and under any fringe
benefit offered to employees by virtue of employment.
(d) Pregnancy leave. In the case of a recipient that does not
maintain a leave policy for its employees, or in the case of an employee
with insufficient leave or accrued employment time to qualify for leave
under such a policy, a recipient shall treat pregnancy, childbirth,
false pregnancy, termination of pregnancy, and recovery therefrom as a
justification for a leave of absence without pay for a reasonable period
of time, at the conclusion of which the employee shall be reinstated to
the status that she held when the leave began or to a comparable
position, without decrease in rate of compensation or loss of
promotional opportunities, or any other right or privilege of
employment.
Sec. 8a.535 Effect of state or local law or other requirements.
(a) Prohibitory requirements. The obligation to comply with
Sec. Sec. 8a.500 through 8a.550 is not obviated or alleviated by the
existence of any State or local law or other requirement that imposes
prohibitions or limits upon employment of members of one sex that are
not imposed upon members of the other sex.
(b) Benefits. A recipient that provides any compensation, service,
or benefit to members of one sex pursuant to a State or local law or
other requirement shall provide the same compensation, service, or
benefit to members of the other sex.
Sec. 8a.540 Advertising.
A recipient shall not in any advertising related to employment
indicate preference, limitation, specification, or discrimination based
on sex unless sex is a bona fide occupational qualification for the
particular job in question.
Sec. 8a.545 Pre-employment inquiries.
(a) Marital status. A recipient shall not make pre-employment
inquiry as to the marital status of an applicant for employment,
including whether such applicant is ``Miss'' or ``Mrs.''
(b) Sex. A recipient may make pre-employment inquiry as to the sex
of an applicant for employment, but only if such inquiry is made equally
of such applicants of both sexes and if the results of such inquiry are
not used in connection with discrimination prohibited by these Title IX
regulations.
Sec. 8a.550 Sex as a bona fide occupational qualification.
A recipient may take action otherwise prohibited by Sec. Sec.
8a.500 through 8a.550 provided it is shown that sex is a bona fide
occupational qualification for that action, such that consideration of
sex with regard to such action is essential to successful operation of
the employment function concerned. A recipient shall not take action
pursuant to this section that is based upon alleged comparative
employment characteristics or stereotyped characterizations of one or
the other sex, or upon preference based on sex of the recipient,
employees, students, or other persons, but nothing contained in this
section shall prevent a recipient from considering an employee's sex in
relation to employment in a locker room or toilet
[[Page 114]]
facility used only by members of one sex.
Subpart F_Procedures
Sec. 8a.600 Notice of covered programs.
Within 60 days of September 29, 2000, each Federal agency that
awards Federal financial assistance shall publish in the Federal
Register a notice of the programs covered by these Title IX regulations.
Each such Federal agency shall periodically republish the notice of
covered programs to reflect changes in covered programs. Copies of this
notice also shall be made available upon request to the Federal agency's
office that enforces Title IX.
Sec. 8a.605 Enforcement procedures.
The investigative, compliance, and enforcement procedural provisions
of Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d) (``Title
VI'') are hereby adopted and applied to these Title IX regulations.
These procedures may be found at 15 CFR 8.7 through 8.15, and 13 CFR
part 317.
[65 FR 52877, Aug. 30, 2000]
PART 8b_PROHIBITION OF DISCRIMINATION AGAINST THE HANDICAPPED IN
FEDERALLY ASSISTED PROGRAMS OPERATED BY THE DEPARTMENT OF COMMERCE-
-Table of Contents
Subpart A_General Provisions
Sec.
8b.1 Purpose.
8b.2 Application.
8b.3 Definitions.
8b.4 Discrimination prohibited.
8b.5 Assurances required.
8b.6 Remedial action, voluntary action, and self-evaluation.
8b.7 Designation of responsible employee and adoption of grievance
procedures.
8b.8 Notice.
8b.9 Administrative requirements for small recipients.
8b.10 Effect of state or local law or other requirements and effect of
employment opportunities.
Subpart B_Employment Practices
8b.11 Discrimination prohibited.
8b.12 Reasonable accommodation.
8b.13 Employment criteria.
8b.14 Preemployment inquiries.
8b.15 Employment on ships.
Subpart C_Accessibility
8b.16 Discrimination prohibited.
8b.17 Existing facilities.
8b.18 New construction.
Subpart D_Post Secondary Education
8b.19 Application of this subpart.
8b.20 Admission and recruitment.
8b.21 Treatment of students.
8b.22 Academic adjustments.
8b.23 Housing provided by the recipient.
8b.24 Financial and employment assistance to students.
8b.25 Nonacademic services.
Subpart E_Procedures
8b.26 Procedures.
Authority: 29 U.S.C. 794.
Source: 47 FR 17746, Apr. 23, 1982, unless otherwise noted.
Editorial Note: Nomenclature changes to part 8b appear at 68 FR
51353, Aug. 26, 2003.
Subpart A_General Provisions
Sec. 8b.1 Purpose.
Section 504 of the Rehabilitation Act of 1973, as amended, prohibits
discrimination on the basis of handicap in any program or activity
receiving Federal financial assistance. The purpose of this part is to
implement section 504 with respect to programs or activities receiving
Federal financial assistance from the Department of Commerce.
Sec. 8b.2 Application.
This part applies to each recipient of Federal financial assistance
from the Department of Commerce and to each program or activity
receiving such assistance. The requirements of this part do not apply to
the ultimate beneficiaries of Federal financial assistance in the
program or activity receiving Federal financial assistance.
Sec. 8b.3 Definitions.
As used in this part, the term:
(a) The Act means the Rehabilitation Act of 1973, Pub. L. 93-112, as
amended by the Rehabilitation Act Amendments of 1974, Pub. L. 93-516,
and by the Rehabilitation, Comprehensive Services, and Developmental
Disabilities
[[Page 115]]
Amendments of 1978, Pub. L. 95-602 (codified at 29 U.S.C. 794 (1976 &
Supp. II 1978)).
(b) Applicant for assistance means one who submits an application,
request, or plan required to be approved by a Department official or by
a recipient as a condition to becoming a recipient.
(c) Department means the Department of Commerce and any of its
constituent units authorized to provide Federal financial assistance.
(d) Facility means all or any portion of buildings, ships,
structures, equipment, roads, walks, parking lots, industrial parks, or
other real or personal property or interest in such property.
(e) Federal financial assistance means any grant, loan, contract
(other than a procurement contract or a contract of insurance or
guarantee), or any other arrangement by which the Department provides or
otherwise makes available assistance in the form of:
(1) Funds;
(2) Services of Federal personnel; or
(3) Real and personal property or any interest in or use of such
property, including:
(i) Transfers or leases of such property for less than fair market
value or for reduced consideration; and
(ii) Proceeds from a subsequent transfer or lease of such property
if the Federal share of its fair market value is not returned to the
Federal Government.
(f) Handicap means any condition or characteristic that renders a
person a handicapped person as defined in paragraph (g) of this section.
(g) Handicapped person--(1) Handicapped person means any person who:
(i) Has a physical or mental impairment which substantially limits
one or more major life activities;
(ii) Has a record of such an impairment; or
(iii) Is regarded as having such an impairment.
(2) For purposes of employment, the term ``handicapped person'' does
not include any person who is an alcoholic or drug abuser whose current
use of alcohol or drugs prevents that individual from performing the
duties of the job in question, or whose employment, because of current
alcohol or drug abuse, would constitute a direct threat to property or
to the safety of others.
(3) As used in paragraph (g)(1) of this section, the phrase:
(i) Physical or mental impairment means:
(A) Any physiological disorder or condition, cosmetic disfigurement,
or anatomical loss affecting one or more of the following body systems:
Neurological; musculoskeletal; special sense organs; respiratory,
including speech organs; cardiovascular; reproductive; digestive;
genito-urinary; hemic and lymphatic; skin; and endocrine; or
(B) Any mental or psychological disorder, such as mental
retardation, organic brain syndrome, emotional or mental illness, and
specific learning disabilities;
(C) The term ``physical or mental impairment'' includes, but is not
limited to, such diseases and conditions as orthopedic, visual speech
and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy,
multiple sclerosis, cancer, heart disease, diabetes, mental retardation,
emotional illness, drug addiction and alcoholism.
(ii) Major life activities means functions such as caring for one's
self, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, working, and receiving education or vocational
training.
(iii) Has a record of such an impairment means that the individual
has a history of, or has been misclassified as having, a mental or
physical impairment that substantially limits one or more major life
activities.
(iv) Is regarded as having an impairment means that the individual:
(A) Has a physical or mental impairment that does not substantially
limit major life activities, but that is treated by a recipient as
constituting such a limitation;
(B) Has a physical or mental impairment that substantially limits
major life activities only as a result of the attitudes of others toward
such impairment; or
(C) Has none of the impairments defined in paragraph (g)(3)(i) of
this section, but is treated by a recipient as having such an
impairment.
(h) Program or activity means all of the operations of any entity
described
[[Page 116]]
in paragraphs (h)(1) through (4) of this section, any part of which is
extended Federal financial assistance:
(1)(i) A department, agency, special purpose district, or other
instrumentality of a State or of a local government; or
(ii) The entity of such State or local government that distributes
such assistance and each such department or agency (and each other State
or local government entity) to which the assistance is extended, in the
case of assistance to a State or local government;
(2)(i) A college, university, or other postsecondary institution, or
a public system of higher education; or
(ii) A local educational agency (as defined in 20 U.S.C. 7801),
system of vocational education, or other school system;
(3)(i) An entire corporation, partnership, or other private
organization, or an entire sole proprietorship--
(A) If assistance is extended to such corporation, partnership,
private organization, or sole proprietorship as a whole; or
(B) Which is principally engaged in the business of providing
education, health care, housing, social services, or parks and
recreation; or
(ii) The entire plant or other comparable, geographically separate
facility to which Federal financial assistance is extended, in the case
of any other corporation, partnership, private organization, or sole
proprietorship; or
(4) Any other entity which is established by two or more of the
entities described in paragraph (h)(1), (2), or (3) of this section.
(i) Qualified handicapped person means:
(1) With respect to employment, a handicapped person who, with
reasonable accommodation, can perform the essential functions of the job
in question;
(2) With respect to post secondary and vocational education
services, a handicapped person who meets the academic and technical
standards requisite to admission or participation in the recipient's
education program or activity;
(3) With respect to other services, a handicapped person who meets
the essential eligibility requirements for the receipt of such services.
(j) Recipient means any State or its political subdivisions, any
instrumentality of a State or its political subdivisions, any public or
private agency, institution, organization, or other entity, or any
person to which Federal financial assistance is extended directly or
indirectly through another recipient, or including any successor,
assignee, or transferee of a recipient, but excluding the ultimate
beneficiary of the assistance.
(k) Secretary means the Secretary of Commerce, U.S. Department of
Commerce.
(l) Section 504 means section 504 of the Act.
(m) Small recipient means a recipient who serves fewer than 15
beneficiaries and who employs fewer than 15 employees at all times
during a grant year.
[47 FR 17746, Apr. 23, 1982, as amended at 68 FR 51353, Aug. 26, 2003]
Sec. 8b.4 Discrimination prohibited.
(a) General. No qualified handicapped individual shall, on the basis
of handicap, be excluded from participation in, be denied the benefits
of, or otherwise be subjected to discrimination under any program or
activity that receives Federal financial assistance.
(b) Discriminatory actions prohibited. (1) A recipient, in providing
any aid, benefit, or service, may not, directly or through contractual,
licensing, or other arrangements, on the basis of handicap:
(i) Deny a qualified handicapped individual the opportunity to
participate in or benefit from the aid, benefit, or service;
(ii) Afford a qualified handicapped individual an opportunity to
participate in or benefit from the aid, benefit, or service that is not
equal to that afforded others;
(iii) Provide a qualified handicapped individual with any aid,
benefit, or service that is not as effective as that provided to others;
(iv) Provide different or separate aid, benefits, or services to
handicapped individuals or to any class of handicapped individuals,
unless such action is necessary to provide qualified handicapped
individuals with aid, benefits,
[[Page 117]]
or services that are as effective as those provided to others;
(v) Aid or perpetuate discrimination against a qualified handicapped
individual by providing significant assistance to an agency,
organization, or person that discriminates on the basis of handicap in
providing any aid, benefit, or service to beneficiaries of the
recipient's program or activity;
(vi) Deny a qualified handicapped individual the opportunity to
participate as a member of planning or advisory boards; or
(vii) Otherwise limit a qualified handicapped individual in the
enjoyment of any right, privilege, advantage, or opportunity enjoyed by
others receiving any aid, benefits, or services.
(2) For purposes of this part, aid, benefits, and services must
afford handicapped individuals an equal opportunity to obtain the same
result, to gain the same benefit, or to reach the same level of
achievement as afforded to others, in the most integrated setting
appropriate to the individual's needs. However, aid, benefits and
services, to be equally effective, need not produce the identical result
or level of achievement for handicapped and nonhandicapped individuals.
(3) A recipient may not deny a qualified handicapped individual the
opportunity to participate in its regular aid, benefits, or services,
despite the existence of separate or different aid, benefits, or
services which are established in accordance with this part.
(4) A recipient may not, directly or through contractual or other
arrangements, use criteria or methods of administration:
(i) That have the effect of subjecting qualified handicapped
individuals to discrimination on the basis of handicap;
(ii) That have the purpose or effect of defeating or substantially
impairing accomplishment of the objectives of the recipient's program or
activity with respect to handicapped individuals; or
(iii) That perpetuate the discrimination of another recipient if
both recipients are subject to common administrative control or are
agencies of the same state.
(5) In determining the geographic site or location of a facility, an
applicant for assistance or a recipient may not make selections:
(i) That have the effect of excluding handicapped individuals from,
denying them the benefit of, or otherwise subjecting them to
discrimination under any program or activity that receives Federal
financial assistance; or
(ii) That have the purpose or effect of defeating or substantially
impairing the accomplishment of the objectives of the program or
activity with respect to handicapped individuals.
(6) As used in this section, the aid, benefit, or service provided
under a program or activity receiving Federal financial assistance
includes any aid, benefit, or service provided in or through a facility
that has been constructed, expanded, altered, leased, rented or
otherwise acquired, in whole or in part, with Federal financial
assistance.
(7)(i) In providing services, recipients to which this subpart
applies, except small recipients, shall ensure that no handicapped
participant is denied the benefits of, excluded from participation in,
or otherwise subjected to discrimination under the program or activity
operated by the recipient because of the absence of auxiliary aids for
participants with impaired sensory, manual or speaking skills. A
recipient shall operate each program or activity to which this subpart
applies so that, when viewed in its entirety, auxiliary aids are readily
available. The Secretary may require small recipients to provide
auxiliary aids in order to ensure that no handicapped participant is
denied the benefits of, excluded from participation in, or otherwise
subjected to discrimination under the program or activity operated by
small recipients, when this would not significantly impair the ability
of the small recipient to provide benefits or services.
(ii) Auxiliary aids may include brailled and taped materials,
interpreters, telecommunications devices, or other equally effective
methods of making orally delivered information available to persons with
hearing impairments, readers for persons with visual impairments,
equipment adapted
[[Page 118]]
for use by persons with manual impairments, and other similar devices
and actions. Recipients need not provide attendants, individually
prescribed devices, readers for personal use or study, or other devices
or services of a personal nature.
(c) Aid, benefits, or services limited by Federal law. The exclusion
of non-handicapped persons from aid, benefits, or services limited by
Federal statute or Executive order to handicapped individuals, or the
exclusion of a specific class of handicapped individuals from aid,
benefits, or services limited by Federal statute or Executive order to a
different class of handicapped individuals is not prohibited by this
part.
(d) Integrated setting. Recipients shall administer programs or
activities in the most integrated setting appropriate to the needs of
qualified handicapped individuals.
(e) Communications with individuals with impaired vision and
hearing. Recipients shall ensure that communications with their
applicants, employees and beneficiaries are available to persons with
impaired vision or hearing. Appropriate modes of communication may
include braille, enlarged type, sign language and telecommunications
devices.
[47 FR 17746, Apr. 23, 1982, as amended at 68 FR 51353, Aug. 26, 2003]
Sec. 8b.5 Assurances required.
(a) Assurances. An applicant for Federal financial assistance to
which this part applies shall submit an assurance, on a form specified
by the Secretary, that the program or activity will be operated in
compliance with this part. An applicant may incorporate these assurances
by reference in subsequent applications to the Department.
(b) Duration of obligation. (1) In the case of Federal financial
assistance extended in the form of real property or structures on the
property, the assurance will obligate the recipient or, in the case of a
subsequent transfer, the transferee, for the period during which the
real property or structures are used for the purpose for which Federal
financial assistance is extended, or for another purpose involving the
provision of similar services or benefits.
(2) In case of Federal financial assistance extended to provide
personal property, the assurance will obligate the recipient for the
period during which it retains ownership or possession of the property.
(3) In all other cases, the assurance will obligate the recipient
for the period during which Federal financial assistance is extended or
the federally-funded program or activity is operated, whichever is
longer.
(c) Covenants. (1) Where Federal financial assistance is provided in
the form of real property or interest in the property from the
Department, the instrument effecting or recording this transfer shall
contain a covenant running with the land to assure nondiscrimination for
the period during which the real property is used for a purpose for
which the Federal financial assistance is extended or for another
purpose involving the provision of similar services or benefits.
(2) Where no transfer or property is involved but property is
purchased or improved with Federal financial assistance, the recipient
shall agree to include the covenant described in paragraph (c)(1) of
this section in the instrument effecting or recording any subsequent
transferee of the property.
(3) Where Federal financial assistance is provided in the form of
real property or interest in the property from the Department, the
covenant shall also include a condition coupled with a right to be
reserved by the Department to revert title to the property in the event
of a breach of the covenant. If a transferee of real property proposed
to mortgage or otherwise encumber the real property as security to
finance construction of new, or improvement of existing, facilities on
the property for the purposes for which the property was transferred,
the Secretary may agree to forbear the exercise of such right to revert
title for so long as the lien of such mortgage or other encumbrance
remains effective. Such an agreement by the Secretary may be entered
into only upon the request of the transferee (recipient) if it is
necessary to accomplish such financing and upon such terms and
conditions as the Secretary deems appropriate.
(d) Interagency agreements. Where funds are granted by the
Department
[[Page 119]]
to another Federal agency to carry out the objectives of Federal
financial assistance under a law administered by the Department, and
where the grant obligates the recipient agency to comply with the rules
and regulations of the Department applicable to that grant the
provisions of this part shall apply to programs or activities operated
with such funds.
Sec. 8b.6 Remedial action, voluntary action, and self-evaluation.
(a) Remedial action. (1) If the Secretary finds that a recipient has
discriminated against persons on the basis of handicap in violation of
section 504 or this part, the recipient shall take such remedial action
as the Secretary deems necessary to overcome the effects of the
discrimination.
(2) Where a recipient is found to have discriminated against persons
on the basis of handicap in violation of section 504 or this part and
where another recipient exercises control over the recipient that has
discriminated, the Secretary, where appropriate, may require either or
both recipients to take remedial action.
(3) The Secretary may, where necessary to overcome the effects of
discrimination in violation of section 504 or this part, require a
recipient to take remedial action:
(i) With respect to handicapped individuals who would have been
participants in the program or activity had the discrimination not
occurred; and
(ii) With respect to handicapped persons who are no longer
participants in the recipient's program or activity, but who were
participants in the program or activity when the discrimination
occurred; and
(iii) with respect to employees and applicants for employment.
(b) Voluntary action. A recipient may take steps, in addition to any
action that is required by this part, to overcome the effects of
conditions that resulted in limited participation in the recipient's
program or activity by qualified handicapped individuals.
(c) Self-evaluation. (1) A recipient shall, within one year of the
effective date of this part:
(i) Evaluate, with the assistance of interested persons, including
handicapped individuals or organizations representing handicapped
individuals, its current policies and practices and the effects thereof
that do not or may not meet the requirements of this part;
(ii) Modify, after consultation with interested persons, including
handicapped individuals or organizations representing handicapped
individuals, any policies and practices that do not meet the
requirements of this part; and
(iii) Take, after consultation with interested persons, including
handicapped individuals or organizations representing handicapped
individuals, appropriate remedial steps to eliminate the effects of any
discrimination that resulted from adherence to these policies and
practices.
(2) A recipient, other than a small recipient, shall for at least
three years following completion of the evaluation required under
paragraph (c)(1) of this section, maintain on file, make available for
public inspection, and provide to the Secretary upon request:
(i) A list of the interested persons consulted;
(ii) A description of areas examined and any problems identified;
and
(iii) A description of any modifications made and of any remedial
steps taken.
(3) The Secretary may, as he or she deems necessary, direct
recipients to conduct additional self-evaluations, in accordance with
the requirements of paragraph (c)(1) of this section.
(Approved by the Office of Management and Budget under control number
0605-0006)
[47 FR 17746, Apr. 23, 1982, as amended at 47 FR 35472, Aug. 16, 1982]
Sec. 8b.7 Designation of responsible employee and adoption of
grievance procedures.
(a) Designation of responsible employee. A recipient, other than a
small recipient, shall designate at least one person to coordinate its
efforts to comply with this part.
(b) Adoption of grievance procedures. A recipient, other than a
small recipient, shall adopt grievance procedures that incorporate
appropriate due process standards and that provide for the prompt and
equitable resolution of complaints alleging any action prohibited by
this part. Such procedures need
[[Page 120]]
not be established with respect to complaints from applicants for
employment or from applicants for admission to post secondary
educational institutions.
Sec. 8b.8 Notice.
(a) A recipient, other than a small recipient, shall take
appropriate initial and continuing steps to notify participants,
beneficiaries, applicants and employees, including those with impaired
vision or hearing, and unions or professional organizations holding
collective bargaining or professional agreements with the recipient,
that it does not discriminate on the basis of handicap in violation of
Section 504 and of this part. The notification shall state, where
appropriate, that the recipient does not discriminate in the admission
or access to, or treatment or employment in, its programs or activities.
The notification shall also include an identification of the responsible
employee designated pursuant to Sec. 8b.7(a). A recipient shall make
the initial notification required by this paragraph within 90 days of
the effective date of this part. Methods of initial and continuing
notification may include the posting of notices, publications in
newspapers and magazines, placement of notices in recipient's
publications, and distribution of memoranda or other written
communication. A recipient shall take appropriate steps to ensure that
notice is available to persons with impaired vision or hearing.
(b) If a recipient publishes or uses recruitment materials or
publications containing general information made available to
participants, beneficiaries, applicants, or employees, it shall include
in those materials or publications a statement of the policy described
in paragraph (a) of this section. A recipient may meet the requirement
of this paragraph either by including appropriate inserts in existing
materials and publications, or by revising and reprinting the materials
and publications.
Sec. 8b.9 Administrative requirements for small recipients.
The Secretary may require small recipients to comply with Sec. Sec.
8b.7 and 8b.8, in whole or in part, when the Secretary finds a violation
of this part or finds that such compliance will not significantly impair
the ability of the small recipient to provide benefits or services.
Sec. 8b.10 Effect of state or local law or other requirements and
effect of employment opportunities.
(a) The obligation to comply with this part is not obviated or
alleviated by the existence of any state or local law or other
requirement that, on the basis of handicap, imposes prohibitions or
limits upon the eligibility of qualified handicapped individuals to
receive services, participate in programs or activities, or practice any
occupation or profession.
(b) The obligation to comply with this part is not obviated or
alleviated because employment opportunities in any occupation or
profession are or may be more limited for handicapped individuals than
for nonhandicapped persons.
Subpart B_Employment Practices
Sec. 8b.11 Discrimination prohibited.
(a) General. (1) No qualified handicapped individual shall, on the
basis of handicap, be subjected to discrimination in employment under
any program or activity that receives Federal financial assistance.
(2) A recipient shall make all decisions concerning employment under
any program or activity to which this part applies in a manner which
ensures that discrimination on the basis of handicap does not occur and
may not limit, segregate, or classify applicants or employees in any way
that adversely affects their opportunities or status because of
handicap.
(3) A recipient may not participate in a contractual or other
relationship that has the effect of subjecting qualified handicapped
applicants or employees to discrimination prohibited by this subpart.
The relationships referred to in this subparagraph include relationships
with employment and referral agencies, with labor unions, with
organizations providing or administering fringe benefits to employees of
the recipient, and with organizations providing training and
apprenticeships.
[[Page 121]]
(b) Specific activities. The prohibition against discrimination in
employment applies to the following activities:
(1) Recruitment, advertising and the processing of applicants for
employment;
(2) Hiring, upgrading, promotion, award of tenure, demotion,
transfer, layoff, termination, right of return from layoff and rehiring;
(3) Rates of pay or any other form of compensation and changes in
compensation; pension or other benefit the applicant or employee
receives from any other source.
Sec. 8b.12 Reasonable accommodation.
(a) A recipient shall make reasonable accommodation to the known
physical or metal limitations of an otherwise qualified handicapped
applicant or employee unless the recipient can demonstrate that the
accommodation would impose an undue hardship on the operation of its
program or activity.
(b) Reasonable accommodation may include:
(1) Making the facilities used by the employees in the area where
the program or activity is conducted, including common areas used by all
employees such as hallways, restrooms, cafeterias and lounges, readily
accessible to and usable by handicapped persons; and
(2) Job restructuring, part-time or modified work schedules,
acquisition or modification of equipment or devices, the provision of
readers or interpreters, and other similar actions.
(c) In determining pursuant to paragraph (a) of this section whether
an accommodation would impose an undue hardship on the operation of a
recipient's program or activity, factors to be considered include:
(1) The overall size of the recipient's program or activity with
respect to number of employees, number of participants, number and type
of facilities, and size of budget;
(2) The type of the recipient's operation, including the composition
and structure of the recipient's workforce; and
(3) The nature and cost of the accommodation needed.
(d) A recipient may not deny any employment opportunity to a
qualified handicapped employee or applicant if the basis for the denial
is the need to make reasonable accommodation to the physical or mental
limitations of the employee or applicant.
(e) Nothing in this paragraph shall relieve a recipient of its
obligation to make its program or activity accessible as required in
subpart C of this part, or to provide auxiliary aids, as required by
Sec. 8b.4(b)(7).
Sec. 8b.13 Employment criteria.
(a) A recipient may not make use of any employment test or other
selection criterion that screens out or tends to screen out handicapped
individuals or any class of handicapped individuals unless;
(1) The test score or other selection criterion, as used by the
recipient, is shown to be job-related for the position in question; and
(2) Alternative job-related tests or criteria that do not screen out
or tend to screen out as many handicapped individuals are not shown by
the Secretary to be available.
(b) A recipient shall select and administer tests concerning
employment so as best to ensure that, when administered to an applicant
or employee who has a handicap that impairs sensory, manual, or speaking
skills, the test results accurately to reflect the applicant's or
employee's job skills aptitude, or whatever factor the test purports to
measure, rather than reflecting the applicant's or employee's impaired
sensory, manual, or speaking skills (except where those skills are the
factors that the test purports to measure).
Sec. 8b.14 Preemployment inquiries.
(a) Except as provided in paragraphs (b) and (c) of this section, a
recipient may not conduct preemployment inquiry of an applicant for
employment as to whether the applicant is a handicapped individual, or
as to the nature or severity of a handicap. A recipient may, however,
make preemployment inquiry into an applicant's ability to perform job-
related functions.
(b) When a recipient is taking remedial action to correct the
effects of past discrimination pursuant to
[[Page 122]]
Sec. 8b.6(a), when a recipient is taking voluntary action to overcome
the effects of conditions that resulted in limited participation in this
federally assisted program or activity pursuant to Sec. 8b.6(b), or
when a recipient is taking affirmative action pursuant to section 503 of
the Act, the recipient may invite applicants for employment to indicate
whether and to what extent they are handicapped, Provided, That:
(1) The recipient states clearly on any written questionnaire used
for this purpose or makes clear orally, if no written questionnaire is
used, that the information requested is intended for use solely in
connection with its remedial action obligations or its voluntary or
affirmative action efforts; and
(2) The recipient states clearly that the information is being
requested on a voluntary basis, that it will be kept confidential as
provided in paragraph (d) of this section, that refusal to provide it
will not subject the applicant or employee to any adverse treatment, and
that it will be used only in accordance with this part.
(c) Nothing in this section shall prohibit a recipient from
conditioning an offer of employment on the results of a medical
examination conducted prior to the employee's entrance on duty,
Provided, That:
(1) All employees are subject to such an examination regardless of
handicap, and
(2) The results of such an examination are used only in accordance
with the requirements of this part.
(d) Information obtained in accordance with this section as to the
medical condition or history of the applicant shall be collected and
maintained on separate forms that shall be accorded confidentiality as
medical records, except:
(1) Employing officials may obtain the information after making a
conditional decision to make a job offer to the applicant or the
applicant was placed conditionally in a job pool or placed conditionally
on an eligibility list;
(2) Supervisors and managers may be informed regarding restrictions
on the work or duties of qualified handicapped individuals and regarding
necessary accommodations;
(3) First aid and safety personnel may be informed, where
appropriate, if the condition might require emergency treatment; and
(4) Government officials investigating compliance with the Act shall
be provided information upon request.
Sec. 8b.15 Employment on ships.
No qualified handicapped individual possessing an appropriate
license or certificate obtained from the United States Coast Guard
pursuant to the requirements of 46 CFR 10.01-1 et seq. and 12.01-1 et
seq. shall, on the basis of handicap, be subjected to discrimination in
employment on ships under any program or activity to which this part
applies.
Subpart C_Accessibility
Sec. 8b.16 Discrimination prohibited.
No qualified handicapped individual shall, because a recipient's
facilities are inaccessible to or unusable by handicapped individuals,
be denied the benefits of, be excluded from participation in, or
otherwise be subjected to discrimination under any program or activity
to which this part applies.
Sec. 8b.17 Existing facilities.
(a) Accessibility. A recipient shall operate each program or
activity to which this part applies so that when each part is viewed in
its entirety it is readily accessible to qualified handicapped
individuals. This paragraph does not require a recipient to make each of
its existing facilities or every part of a facility accessible to and
usable by qualified handicapped individuals. However, if a particular
program is available in only one location, that site must be made
accessible or the aid, benefit, or service must be made available at an
alternative accessible site or sites. Accessibility requires nonpersonal
aids to make the aid, benefit, or service accessible to mobility
impaired persons.
(b) Methods. A recipient may comply with the requirements of
paragraph (a) of this section through such means as redesign of
equipment, reassignment of classes or other services to accessible
[[Page 123]]
buildings, assignment of aides to beneficiaries, home visits, delivery
of services at alternate accessible sites, alteration of existing
facilities and construction of new facilities in conformance with the
requirement of Sec. 8b.19, or any other method that results in making
its program or activity accessible to handicapped individuals. A
recipient is not required to make structural changes in existing
facilities where other methods are effective in achieving compliance
with paragraph (a) of this section. In choosing among available methods
for meeting the requirement of paragraph (a) of this section, a
recipient shall give priority to those methods that serve handicapped
individuals in the most integrated setting appropriate.
(c) If a small recipient finds, after consultation with a qualified
handicapped individual seeking its services, that there is no method of
complying with paragraph (a) of this section other than making a
significant alteration in its existing facilities or facility, the small
recipient may, as an alternative, refer the qualified handicapped
individual to other providers of those services that are accessible at
no additional cost to the handicapped.
(d) Time period. A recipient shall comply with the requirement of
paragraph (a) of this section within 60 days of the effective date of
this part. Where structural changes in facilities are necessary, such
changes shall be made within three years of the effective date of this
part, but in any event as expeditiously as possible.
(e) Transition plan. In the event that structural changes to
facilities are necessary to meet the requirement of paragraph (a) of
this section, a recipient shall develop, within six months of the
effective date of this part, a transition plan setting forth the steps
necessary to complete such changes. The plan shall be developed with the
assistance of interested persons, including handicapped persons or
organizations representing handicapped persons. A copy of the transition
plan shall be made available for public inspection. The plan shall, at a
minimum:
(1) Identify physical obstacles in the recipient's facilities that
limit the accessibility of its program or activity to qualified
handicapped individuals;
(2) Describe in detail the methods that will be used to make the
facilities accessible;
(3) Specify the schedule for taking the steps necessary to achieve
full accessibility under Sec. 8b.17(a) and, if the time period of the
transition plan is longer than one year, identify the steps that will be
taken during each year of the transition period; and
(4) Indicate the person responsible for implementation of the plan.
(f) Notice. The recipient shall adopt and implement procedures to
ensure that interested persons, including persons with impaired vision
or hearing, can obtain information as to the existence and location of
services, activities and facilities that are accessible to and usable by
qualified handicapped individuals.
(Approved by the Office of Management and Budget under control number
0605-0006)
[47 FR 17746, Apr. 23, 1982, as amended at 47 FR 35472, Aug. 16, 1982;
68 FR 51353, Aug. 26, 2003]
Sec. 8b.18 New construction.
(a) Design and construction. Each facility or part of a facility
constructed by, on behalf of, or for the use of a recipient shall be
designed and constructed in such manner that the facility or part of the
facility is readily accessible to and usable by qualified handicapped
individuals, if the construction was commenced after the effective date
of this part.
(b) Alteration. Each facility or part of a facility which is altered
by, on behalf of, or for the use of a recipient after the effective date
of this part of the facility shall, to the maximum extent feasible, be
altered in such manner that the altered portion of the facility is
readily accessible to and usable by qualified handicapped individuals.
(c) Conformance with Uniform Federal Accessibility Standards. (1)
Effective as of August 17, 1990, design, construction, or alteration of
buildings in conformance with sections 3-8 of the Uniform Federal
Accessibility Standards (UFAS) (Appendix A to 41 CFR subpart 101-19.6)
shall be deemed to comply with the requirements of this section
[[Page 124]]
with respect to those buildings. Departures from particular technical
and scoping requirements of UFAS by the use of other methods are
permitted where substantially equivalent or greater access to and
usability of the building is provided.
(2) For purposes of this section, section 4.1.6(1)(g) of UFAS shall
be interpreted to exempt from the requirements of UFAS only mechanical
rooms and other spaces that, because of their intended use, will not
require accessibility to the public or beneficiaries or result in the
employment or residence therein of persons with physical handicaps.
(3) This section does not require recipients to make building
alterations that have little likelihood of being accomplished without
removing or altering a load-bearing structural member.
[47 FR 17746, Apr. 23, 1982, as amended at 55 FR 29320, July 18, 1990]
Subpart D_Post Secondary Education
Sec. 8b.19 Application of this subpart.
Subpart D applies to post secondary education programs or
activities, including post secondary vocational education programs or
activities, that receive Federal financial assistance for the operation
of, such programs or activities.
Sec. 8b.20 Admission and recruitment.
(a) General. Qualified handicapped may not, on the basis of
handicap, be denied admission or be subjected to discrimination in
admission or recruitment by a recipient to which this subpart applies.
(b) Admissions. In administering its admission policies, a recipient
to which this subpart applies:
(1) May not apply limitations upon the number or proportion of
handicapped individuals who may be admitted; and
(2) May not make use of any test or criterion for admission that has
a disproportionate, adverse effect on handicapped individuals or any
class of handicapped individuals unless:
(i) The test or criterion, as used by the recipient, has been
validated as a predictor of success in the education program or activity
in question; and
(ii) Alternate tests or criteria that have a less disproportionate,
adverse effect are not shown by the Secretary to be available.
(3) Shall assure itself that (i) admissions tests are selected and
administered so as best to ensure that, when a test is administered to
an applicant who has a handicap that impairs sensory, manual, or
speaking skills, the test results accurately reflect the applicant's
aptitude or achievement level of whatever other factor the test purports
to measure, rather than reflecting the applicant's impaired sensory,
manual, or speaking skills (except where those skills are the factors
that the test purports to measure); (ii) admissions tests that are
designed for persons with impaired sensory, manual, or speaking skills
are offered as often and in as timely a manner as are other admissions
tests; and (iii) admissions tests are administered in facilities that,
on the whole, are accessible to handicapped individuals; and
(4) Except as provided in paragraph (c) of this section, may not
make pre-admission inquiry as to whether an applicant for admission is a
handicapped individual but, after admission, may make inquiries on a
confidential basis as to handicaps that may require accommodation.
(c) Pre-admission inquiry exception. When a recipient is taking
remedial action to correct the effects of past discrimination pursuant
to Sec. 8b.6(a) or when a recipient is taking voluntary action to
overcome the effects of conditions that resulted in limited
participation in its federally assisted program or activity pursuant to
Sec. 8b.6(b), the recipient may invite applicants for admission to
indicate whether and to what extent they are handicapped, Provided,
That:
(1) The recipient states clearly on any written questionnaire used
for this purpose or makes clear orally, if no written questionnaire is
used, that the information requested is intended for use solely in
connection with its remedial action obligations or its voluntary action
efforts; and
(2) The recipient states clearly that the information is being
requested on a
[[Page 125]]
voluntary basis, that it will be kept confidential, that refusal to
provide it will not subject the applicant to any adverse treatment, and
that it will be used only in accordance with this part.
(d) Validity studies. For the purpose of paragraph (b)(2) of this
section, a recipient may base prediction equations on first year grades,
but shall conduct periodic validity studies against the criterion of
overall success in the education program or activity in question in
order to monitor the general validity of the test scores.
Sec. 8b.21 Treatment of students.
(a) General. No qualified handicapped student shall, on the basis of
handicap, be excluded from participation in, be denied the benefits of,
or otherwise be subjected to discrimination under any academic research,
occupational training, housing, health insurance, counseling, financial
aid, physical education, athletics, recreation, transportation, other
extracurricular, or other post secondary education aid, benefits, or
services to which this subpart applies.
(b) A recipient to which this subpart applies that considers
participation by students in education programs or activities not
operated wholly by the recipient as part of, or equivalent to, education
programs or activities operated by the recipient shall assure itself
that the other education program or activity, as a whole, provides an
equal opportunity for the participation of qualified handicapped
persons.
(c) A recipient to which this subpart applies may not, on the basis
of handicap exclude any qualified handicapped student from any course or
study, or other part of its education program or activity.
(d) A recipient to which this subpart applies shall operate its
program or activity in the most integrated setting appropriate.
Sec. 8b.22 Academic adjustments.
(a) Academic requirements. A recipient to which this subpart applies
shall make such modifications to its academic requirements as are
necessary to ensure that such requirements do not discriminate or have
the effect of discriminating, on the basis of handicap, against a
qualified handicapped applicant or student. Academic requirements that
the recipient can demonstrate are essential to the instruction being
pursued by such student or to any directly related licensing requirement
will not be regarded as discriminatory within the meaning of this
section. Modifications may include changes in the length of time
permitted for the completion of degree requirements, substitution of
specific courses required for the completion of degree requirements, and
adaptation of the manner in which specific courses are conducted.
(b) Other rules. A recipient to which this subpart applies may not
impose upon handicapped students other rules, such as the prohibition of
tape recorders in classrooms or of dog guides in campus buildings, that
have the effect of limiting the participation of handicapped students in
the recipient's education program or activity.
(c) Course examinations. In its course examinations or other
procedures for evaluating student's academic achievement, a recipient to
which this subpart applies shall provide such methods for evaluating the
achievement of students who have a handicap that impairs sensory,
manual, or speaking skills as will best ensure that the results of the
evaluation represents the student's achievement in the course, rather
than reflecting the student's impaired sensory, manual, or speaking
skills (except where such skills are the factors that the test purports
to measure).
(d) Auxiliary aids. (1) A recipient to which this subpart applies
shall ensure that no handicapped student is denied the benefits of,
excluded from participation in, or otherwise subjected to discrimination
because of the absence of educational auxiliary aids for students with
impaired sensory, manual, or speaking skills. A recipient shall operate
each program or activity to which this subpart applies so that, when
viewed in its entirety, auxiliary aids are readily available.
(2) Auxiliary aids may include taped text, interpreters or other
effective methods of making orally delivered materials available to
students with
[[Page 126]]
hearing impairments, readers in libraries for students with visual
impairments, classroom equipment adapted for use by students with manual
impairments, and other similar services and actions. Recipients need not
provide attendants, individually prescribed devices, readers for
personal use or study, or other devices or services of a personal
nature.
Sec. 8b.23 Housing provided by the recipient.
(a) A recipient that provides housing to its nonhandicapped students
shall provide comparable, convenient, and accessible housing to
handicapped students at the same cost as to others. At the end of
transition period provided for in subpart C, such housing shall be
available in sufficient quantity and variety so that the scope of
handicapped students choice of living accommodations is, as a whole,
comparable to that of nonhandicapped students.
(b) Other housing. A recipient that assists any agency,
organization, or person in making housing available to any of its
students shall take such action as may be necessary to assure itself
that such housing is, as a whole, made available in a manner that does
not result in discrimination on the basis of handicap.
Sec. 8b.24 Financial and employment assistance to students.
(a) Provision of financial assistance. (1) In providing financial
assistance to qualified handicapped individuals, a recipient to which
this subpart applies may not (i) on the basis of handicap, provide less
assistance than is provided to nonhandicapped persons, limit eligibility
for assistance, or otherwise discriminate or (ii) assist any entity or
person that provides assistance to any of the recipient's students in a
manner that discriminates against qualified handicapped individuals on
the basis of handicap.
(2) A recipient may administer or assist in the administration of
scholarships, fellowships, or other forms of financial assistance
established under wills, trust, bequest, or similar legal instruments
that require awards to be made on the basis of factors that discriminate
or have the effect of discriminating on the basis of handicap only if
the overall effect of the award of scholarships, fellowships, and other
forms of financial assistance is not discriminatory on the basis of
handicap.
(b) Assistance in making available outside employment. A recipient
that assists any agency, organization, or person in providing employment
opportunities to any of its students shall assure itself that such
employment opportunities, as a whole, are made available in a manner
that would not violate subpart B if they were provided by the recipient.
(c) Employment of student by recipients. A recipient that employs
any of its students may not do so in a manner that violates subpart B.
Sec. 8b.25 Nonacademic services.
(a) Physical education and athletics. (1) In providing physical
education courses and athletics and similar aid, benefits, or services
to any of its students, a recipient to which this subpart applies may
not discriminate on the basis of handicap. A recipient that offers
physical education courses or that operates or sponsors intercollegiate,
club, or intramural athletics shall provide to qualified handicapped
students an equal opportunity for participation in these activities.
(2) A recipient may offer to handicapped students physical education
and athletic activities that are separate or different only if
separation of differentiation is consistent with the requirements of
Sec. 8b.22(d) and only if no qualified handicapped student is denied
the opportunity to compete for teams or to participate in courses that
are not separate or different.
(b) Counseling and placement services. A recipient to which this
subpart applies that provides personal, academic, or vocational
counseling guidance, or placement services to its students shall provide
these services without discrimination on the basis of handicap. The
recipient shall ensure that qualified handicapped students are not
counseled toward more restrictive career objectives than are
nonhandicapped students with similar interests and abilities. This
requirement does not preclude a recipient from providing factual
information about licensing
[[Page 127]]
and certification requirements that may present obstacles to handicapped
persons in their pursuit of particular careers.
(c) Social organizations. A recipient that provides significant
assistance to fraternities, sororities, or similar organizations shall
assure itself that the membership practices of such organizations do not
permit discrimination otherwise prohibited by this subpart.
Subpart E_Procedures
Sec. 8b.26 Procedures.
The enforcement provisions applicable to Title VI of the Civil
Rights Act of 1964 found at Sec. Sec. 8.7 through 8.15 of this subtitle
shall apply to this part.
PART 8c_ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF HANDICAP IN
PROGRAMS OR ACTIVITIES CONDUCTED BY THE DEPARTMENT OF COMMERCE-
-Table of Contents
Sec.
8c.1 Purpose.
8c.2 Application.
8c.3 Definitions.
8c.4-8c.9 [Reserved]
8c.10 Self-evaluation.
8c.11 Notice.
8c.12-8c.29 [Reserved]
8c.30 General prohibitions against discrimination.
8c.31-8c.39 [Reserved]
8c.40 Employment.
8c.41-8c.48 [Reserved]
8c.49 Program accessibility: Discrimination prohibited.
8c.50 Program accessibility: Existing facilities.
8c.51 Program accessibility: New construction and alterations.
8c.52-8c.59 [Reserved]
8c.60 Communications.
8c.61-8c.69 [Reserved]
8c.70 Compliance procedures.
Authority: 29 U.S.C 794.
Source: 53 FR 19277, May 27, 1988, unless otherwise noted.
Sec. 8c.1 Purpose.
This part effectuates section 119 of the Rehabilitation,
Comprehensive Services, and Developmental Disabilities Amendments of
1978, which amended section 504 of the Rehabilitation Act of 1973 to
prohibit discrimination on the basis of handicap in programs or
activities conducted by Executive agencies or the United States Postal
Service.
Sec. 8c.2 Application.
This part applies to all programs or activities conducted by the
agency except for programs or activities conducted outside the United
States that do not involve individuals with handicaps in the United
States.
Sec. 8c.3 Definitions.
For purposes of this part, the term--
Agency means the Department of Commerce.
Assistant Attorney General means the Assistant Attorney General,
Civil Rights Division, United States Department of Justice.
Auxiliary aids means services or devices that enable persons with
impaired sensory, manual, or speaking skills to have an equal
opportunity to participate in, and enjoy the benefits of, programs or
activities conducted by the agency. For example, auxiliary aids useful
for persons with impaired vision include readers, Brailled materials,
audio recordings, and other similar services and devices. Auxiliary aids
useful for persons with impaired hearing include telephone handset
amplifiers, telephones compatible with hearing aids, telecommunication
devices for deaf persons (TDD's), interpreters, notetakers, written
materials, and other similar services and devices.
Complete complaint means a written statement that contains the
complainant's name and address and describes the agency's alleged
discriminatory action in sufficient detail to inform the agency of the
nature and date of the alleged violation of section 504. It shall be
signed by the complainant or by someone authorized to do so on his or
her behalf. Complaints filed on behalf of classes or third parties shall
describe or identify (by name, if possible) the alleged victims of
discrimination.
Facility means all or any portion of buildings, structures,
equipment, roads, walks, parking lots, rolling stock or other
conveyances, or other real or personal property.
[[Page 128]]
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'' includes--
(i) Any physiological disorder or condition, cosmetic disfigurement,
or anatomical loss affecting one or more of the following body systems:
Neurological; musculoskeletal; special sense organs; respiratory,
including speech organs; cardiovascular; reproductive; digestive;
genitourinary; hemic and lymphatic; skin; and endocrine; or
(ii) Any mental or psychological disorder, such as mental
retardation, organic brain syndrome, emotional or mental illness, and
specific learning disabilities. The term ``physical or mental
impairment'' includes, but is not limited to, such diseases and
conditions as orthopedic, visual, speech, and hearing impairments,
cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis,
cancer, heart disease, diabetes, mental retardation, emotional illness,
and drug addiction and alcoholism
(2) ``Major life activities'' includes functions such as caring for
one's self, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working.
(3) ``Has a record of such an impairment'' means has a history of,
or has been misclassified as having, a mental or physical impairment
that substantially limits one or more major life activities.
(4) ``Is regarded as having an impairment'' means--
(i) Has a physical or mental impairment that does not substantially
limit major life activities but is treated by the agency as constituting
such a limitation;
(ii) Has a physical or mental impairment that substantially limits
major life activities only as a result of the attitudes of others
towards such impairment; or
(iii) Has none of the impairments defined in subparagraph (1) of
this definition but is treated by the agency as having such an
impairment.
Qualified individual with handicaps means--
(1) With respect to any agency program or activity under which a
person is required to perform services or to achieve a level of
accomplishment, an individual with handicaps who meets the essential
eligibility requirements and who can achieve the purpose of the program
or activity without modifications in the program or activity that the
agency can demonstrate would result in a fundamental alteration in its
nature;
(2) With respect to any other program or activity, an individual
with handicaps who meets the essential eligibility requirements for
participation in, or receipt of benefits from, that program or activity;
and
(3) ``Qualified handicapped person'' as that term is defined for
purposes of employment in 29 CFR 1613.702(f), which is made applicable
to this part by Sec. 8c.40.
Section 504 means section 504 of the Rehabilitation Act of 1973
(Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended by the
Rehabilitation Act Amendments of 1974 (Pub. L. 93-516, 88 Stat. 1617);
the Rehabilitation, Comprehensive Services, and Developmental
Disabilities Amendments of 1978) Pub. L. 95-602, 92 Stat. 2955); and the
Rehabilitation Act Amendments of 1986 (Pub. L. 99-506, 100 Stat. 1810).
As used in this part, section 504 applies only to programs or activities
conducted by Executive agencies and not to federally assisted programs.
[53 FR 19277, May 27, 1988; 53 FR 25722, July 8, 1988]