Title 45 Public Welfare Parts 500 to 1199

Revised as of October 1, 2018

Containing a codification of documents of general applicability and future effect

As of October 1, 2018

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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Legal Status and Use of Seals and Logos The seal of the National Archives and Records Administration (NARA) authenticates the Code of Federal Regulations (CFR) as the official codification of Federal regulations established under the Federal Register Act. Under the provisions of 44 U.S.C. 1507, the contents of the CFR, a special edition of the Federal Register, shall be judicially noticed. The CFR is prima facie evidence of the original documents published in the Federal Register (44 U.S.C. 1510). It is prohibited to use NARA’s official seal and the stylized Code of Federal Regulations logo on any republication of this material without the express, written permission of the Archivist of the United States or the Archivist’s designee. Any person using NARA’s official seals and logos in a manner inconsistent with the provisions of 36 CFR part 1200 is subject to the penalties specified in 18 U.S.C. 506, 701, and 1017.

Use of ISBN Prefix This is the Official U.S. Government edition of this publication and is herein identified to certify its authenticity. Use of the 0–16 ISBN prefix is for U.S. Government Publishing Office Official Edi- tions only. The Superintendent of Documents of the U.S. Govern- ment Publishing Office requests that any reprinted edition clearly be labeled as a copy of the authentic work with a new ISBN.

U.S. GOVERNMENT PUBLISHING OFFICE U.S. Superintendent of Documents • Washington, DC 20402–0001 http://bookstore.gpo.gov Phone: toll-free (866) 512-1800; DC area (202) 512-1800

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Page Explanation ...... v

Title 45:

SUBTITLE B—REGULATIONS RELATING TO PUBLIC WELFARE (CONTIN- UED)

Chapter V—Foreign Claims Settlement Commission of the United States, Department of Justice ...... 5

Chapter VI—National Science Foundation ...... 39

Chapter VII—Commission on Civil Rights ...... 243

Chapter VIII—Office of Personnel Management ...... 285

Chapter IX—Denali Commission ...... 305

Chapter X—Office of Community Services, Administration for Children and Families, Department of Health and Human Serv- ices ...... 317

Chapter XI—National Foundation on the Arts and the Humanities 325

Finding Aids:

Table of CFR Titles and Chapters ...... 505

Alphabetical List of Agencies Appearing in the CFR ...... 525

List of CFR Sections Affected ...... 535

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To cite the regulations in this volume use title, part and section number. Thus, 45 CFR 500.1 refers to title 45, part 500, section 1.

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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 sub- divided into parts covering specific regulatory areas. Each volume of the Code is revised at least once each calendar year and issued on a quarterly basis approximately as follows: Title 1 through Title 16...... as of January 1 Title 17 through Title 27 ...... as of April 1 Title 28 through Title 41 ...... as of July 1 Title 42 through Title 50...... as of October 1 The appropriate revision date is printed on the cover of each volume. LEGAL STATUS The contents of the Federal Register are required to be judicially noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie evidence of the text of the original documents (44 U.S.C. 1510). HOW TO USE THE CODE OF FEDERAL REGULATIONS The Code of Federal Regulations is kept up to date by the individual issues of the Federal Register. These two publications must be used together to determine the latest version of any given rule. To determine whether a Code volume has been amended since its revision date (in this case, October 1, 2018), consult the ‘‘List of CFR Sections Affected (LSA),’’ which is issued monthly, and the ‘‘Cumulative List of Parts Affected,’’ which appears in the Reader Aids section of the daily Federal Register. These two lists will identify the Federal Register page number of the latest amendment of any given rule. EFFECTIVE AND EXPIRATION DATES Each volume of the Code contains amendments published in the Federal Reg- ister since the last revision of that volume of the Code. Source citations for the regulations are referred to by volume number and page number of the Federal Register and date of publication. Publication dates and effective dates are usually not the same and care must be exercised by the user in determining the actual effective date. In instances where the effective date is beyond the cut- off date for the Code a note has been inserted to reflect the future effective date. In those instances where a regulation published in the Federal Register states a date certain for expiration, an appropriate note will be inserted following the text. OMB CONTROL NUMBERS The Paperwork Reduction Act of 1980 (Pub. L. 96–511) requires Federal agencies to display an OMB control number with their information collection request.

VerDate Sep<11>2014 12:07 Oct 30, 2018 Jkt 244202 PO 00000 Frm 00005 Fmt 8008 Sfmt 8092 Q:\45\45V3.TXT PC31 kpayne on VMOFRWIN702 with $$_JOB Many agencies have begun publishing numerous OMB control numbers as amendments to existing regulations in the CFR. These OMB numbers are placed as close as possible to the applicable recordkeeping or reporting requirements. PAST PROVISIONS OF THE CODE Provisions of the Code that are no longer in force and effect as of the revision date stated on the cover of each volume are not carried. Code users may find the text of provisions in effect on any given date in the past by using the appropriate List of CFR Sections Affected (LSA). For the convenience of the reader, a ‘‘List of CFR Sections Affected’’ is published at the end of each CFR volume. For changes to the Code prior to the LSA listings at the end of the volume, consult previous annual editions of the LSA. For changes to the Code prior to 2001, consult the List of CFR Sections Affected compilations, published for 1949- 1963, 1964-1972, 1973-1985, and 1986-2000. ‘‘[RESERVED]’’ TERMINOLOGY The term ‘‘[Reserved]’’ is used as a place holder within the Code of Federal Regulations. An agency may add regulatory information at a ‘‘[Reserved]’’ location at any time. Occasionally ‘‘[Reserved]’’ is used editorially to indicate that a portion of the CFR was left vacant and not accidentally dropped due to a printing or computer error. INCORPORATION BY REFERENCE What is incorporation by reference? Incorporation by reference was established by statute and allows Federal agencies to meet the requirement to publish regulations in the Federal Register by referring to materials already published elsewhere. For an incorporation to be valid, the Director of the Federal Register must approve it. The legal effect of incorporation by reference is that the material is treated as if it were published in full in the Federal Register (5 U.S.C. 552(a)). This material, like any other properly issued regulation, has the force of law. What is a proper incorporation by reference? The Director of the Federal Register will approve an incorporation by reference only when the requirements of 1 CFR part 51 are met. Some of the elements on which approval is based are: (a) The incorporation will substantially reduce the volume of material published in the Federal Register. (b) The matter incorporated is in fact available to the extent necessary to afford fairness and uniformity in the administrative process. (c) The incorporating document is drafted and submitted for publication in accordance with 1 CFR part 51. What if the material incorporated by reference cannot be found? If you have any problem locating or obtaining a copy of material listed as an approved incorporation by reference, please contact the agency that issued the regulation containing that incorporation. If, after contacting the agency, you find the material is not available, please notify the Director of the Federal Register, National Archives and Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001, or call 202-741-6010. CFR INDEXES AND TABULAR GUIDES A subject index to the Code of Federal Regulations is contained in a separate volume, revised annually as of January 1, entitled CFR INDEX AND FINDING AIDS. This volume contains the Parallel Table of Authorities and Rules. A list of CFR titles, chapters, subchapters, and parts and an alphabetical list of agencies publishing in the CFR are also included in this volume.

VerDate Sep<11>2014 12:07 Oct 30, 2018 Jkt 244202 PO 00000 Frm 00006 Fmt 8008 Sfmt 8092 Q:\45\45V3.TXT PC31 kpayne on VMOFRWIN702 with $$_JOB An index to the text of ‘‘Title 3—The President’’ is carried within that volume. The Federal Register Index is issued monthly in cumulative form. This index is based on a consolidation of the ‘‘Contents’’ entries in the daily Federal Reg- ister. A List of CFR Sections Affected (LSA) is published monthly, keyed to the revision dates of the 50 CFR titles. REPUBLICATION OF MATERIAL There are no restrictions on the republication of material appearing in the Code of Federal Regulations. INQUIRIES For a legal interpretation or explanation of any regulation in this volume, contact the issuing agency. The issuing agency’s name appears at the top of odd-numbered pages. For inquiries concerning CFR reference assistance, call 202–741–6000 or write to the Director, Office of the Federal Register, National Archives and Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001 or e-mail [email protected]. SALES The Government Publishing Office (GPO) processes all sales and distribution of the CFR. For payment by credit card, call toll-free, 866-512-1800, or DC area, 202-512-1800, M-F 8 a.m. to 4 p.m. e.s.t. or fax your order to 202-512-2104, 24 hours a day. For payment by check, write to: US Government Publishing Office – New Orders, P.O. Box 979050, St. Louis, MO 63197-9000. ELECTRONIC SERVICES The full text of the Code of Federal Regulations, the LSA (List of CFR Sections Affected), The United States Government Manual, the Federal Register, Public Laws, Public Papers of the Presidents of the United States, Compilation of Presi- dential Documents and the Privacy Act Compilation are available in electronic format via www.govinfo.gov. For more information, contact the GPO Customer Contact Center, U.S. Government Publishing Office. Phone 202-512-1800, or 866- 512-1800 (toll-free). E-mail, [email protected]. The Office of the Federal Register also offers a free service on the National Archives and Records Administration’s (NARA) World Wide Web site for public law numbers, Federal Register finding aids, and related information. Connect to NARA’s web site at www.archives.gov/federal-register. The e-CFR is a regularly updated, unofficial editorial compilation of CFR material and Federal Register amendments, produced by the Office of the Federal Register and the Government Publishing Office. It is available at www.ecfr.gov.

OLIVER A. POTTS, Director, Office of the Federal Register October 1, 2018

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Title 45—PUBLIC WELFARE is composed of four volumes. The parts in these volumes are arranged in the following order: Parts 1–199, 200–499, 500–1199, and 1200 to end. Volume one (parts 1–199) contains all current regulations issued under subtitle A—Department of Health and Human Services. Volume two (parts 200– 499) contains all current regulations issued under subtitle B—Regulations Relat- ing to Public Welfare, chapter II—Office of Family Assistance (Assistance Pro- grams), Administration for Children and Families, Department of Health and Human Services, chapter III—Office of Child Support Enforcement (Child Support Enforcement Program), Administration for Children and Families, Department of Health and Human Services, and chapter IV—Office of Refugee Resettlement, Administration for Children and Families, Department of Health and Human Services. Volume three (parts 500–1199) contains all current regulations issued under chapter V—Foreign Claims Settlement Commission of the United States, Department of Justice, chapter VI—National Science Foundation, chapter VII— Commission on Civil Rights, chapter VIII—Office of Personnel Management, chapter IX—Denali Commission, chapter X—Office of Community Services, Ad- ministration for Children and Families, Department of Health and Human Serv- ices, and chapter XI—National Foundation on the Arts and the Humanities. Vol- ume four (part 1200 to end) contains all current regulations issued under chapter XII—Corporation for National and Community Service, chapter XIII—Adminis- tration for Children and Families, Department of Health and Human Services, chapter XVI—Legal Services Corporation, chapter XVII—National Commission on Libraries and Information Science, chapter XVIII—Harry S Truman Scholar- ship Foundation, chapter XXI—Commission of Fine Arts, chapter XXIII—Arctic Research Commission, chapter XXIV—James Madison Memorial Fellowship Foundation, and chapter XXV—Corporation for National and Community Service. The contents of these volumes represent all of the current regulations codified under this title of the CFR as of October 1, 2018.

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

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(This book contains parts 500 to 1199)

SUBTITLE B—REGULATIONS RELATING TO PUBLIC WELFARE (CONTINUED) Part

CHAPTER V—Foreign Claims Settlement Commission of the United States, Department of Justice ...... 500

CHAPTER VI—National Science Foundation ...... 601

CHAPTER VII—Commission on Civil Rights ...... 701 CHAPTER VIII—Office of Personnel Management [Reserved]

CHAPTER IX—Denali Commission ...... 900

CHAPTER X—Office of Community Services, Administration for Children and Families, Department of Health and Human Services ...... 1080

CHAPTER XI—National Foundation on the Arts and the Hu- manities ...... 1100

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SUBCHAPTER A—RULES OF PRACTICE

Part Page 500 Appearance and practice ...... 7 501 Subpoenas, depositions, and oaths ...... 8 502 Public information-Freedom of Information Act .... 11 503 Privacy Act and Government in the Sunshine Reg- ulations ...... 17

SUBCHAPTER B—RECEIPT, ADMINISTRATION, AND PAYMENT OF CLAIMS UNDER TITLE I OF THE WAR CLAIMS ACT OF 1948, AS AMENDED 504 Filing of claims and procedures therefor ...... 25 505 Provisions of general application ...... 26 506 Eligibility requirements for compensation ...... 27 507 Payment ...... 30 508 Hearings ...... 30

SUBCHAPTER C—RECEIPT, ADMINISTRATION, AND PAYMENT OF CLAIMS UNDER THE INTERNATIONAL CLAIMS SETTLEMENT ACT OF 1949, AS AMENDED, AND RELATED ACTS 509 Filing of claims and procedures therefor ...... 33

SUBCHAPTER D—RECEIPT, ADMINISTRATION, AND PAYMENT OF CLAIMS UNDER THE GUAM WORLD WAR II LOYALTY RECOGNITION ACT 510 Filing of claims and procedures therefor ...... 37 511–599 [Reserved]

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PART 500—APPEARANCE AND a petition setting forth pertinent facts PRACTICE as to the organization’s history, purpose, number of posts or chapters and Sec. their locations, approximate number of 500.1 Appearance and representation. paid-up memberships, statements that 500.2 Notice of entry or withdrawal of coun- the organization will not charge any sel in claims. fee for services rendered by its des- 500.3 Fees. ignees in behalf of claimants and that 500.4 Suspension of attorneys. it will not refuse on the grounds of 500.5 Standards of Conduct. non-membership to represent any 500.6 Disqualification of former employees. claimant who applies for representa- AUTHORITY: Sec. 2, Pub. L. 896, 80th Cong., tion if the claimant has an apparently 62 Stat. 1240, as amended (50 U.S.C. App. valid claim, accompanied by a copy of 2001); sec. 3, Pub. L. 455, 81st Cong., 64 Stat. the organization’s constitution, or 12, as amended (22 U.S.C. 1622); 18 U.S.C. 207; charter, by-laws, and its latest finan- Sec.1705(a)(2), Pub. L. 114–328, 114th Cong., 130 cial statement, the Commission in its Stat. 2644. discretion will consider and in appro- SOURCE: 66 FR 49844, Oct. 1, 2001, unless priate cases issue or deny letters of ac- otherwise noted. creditation. (f) A claimant may not be rep- § 500.1 Appearance and representa- resented before the Commission except tion. as authorized in paragraphs (a) through (a) An individual may appear in his (e) of this section. or her own behalf, or may be represented by an attorney at law admit- § 500.2 Notice of entry or withdrawal ted to practice in any State or Terri- of counsel in claims. tory of the United States, or the Dis- (a) Counsel entering an appearance in trict of Columbia. a claim originally filed by a claimant (b) A member of a partnership may in the claimant’s own behalf, or upon represent the partnership. request for a substitution of attorneys, (c) A bona fide officer of a corpora- will be required to file an authorization tion, trust or association may rep- signed by the claimant. resent the corporation, trust or asso- (b) When counsel seeks to withdraw ciation. from the prosecution of a claim, he or (d) An officer or employee of the she will be required to demonstrate United States Department of Justice, that the client (claimant) has been when designated by the Attorney Gen- duly notified. eral of the United States, may rep- (c) When a claimant advises the Com- resent the United States in a claim mission that counsel no longer rep- proceeding. resents that claimant, a copy of the (e) In cases falling within the pur- Commission’s acknowledgment will be view of subchapter B of this chapter, forwarded to that counsel. persons designated by veterans’, service, and other organizations to appear § 500.3 Fees. before the Commission in a representa- (a) The amount of attorney’s fees tive capacity on behalf of claimants that may be charged in connection will be deemed duly authorized to prac- with claims falling within the purview tice before the Commission if the des- of title I of the International Claims ignating organization has received a Settlement Act of 1949, as amended (22 letter of accreditation from the Com- U.S.C. § 1621–1627), is governed by the mission. Petitions for accreditation provisions of 22 U.S.C.1623(f). must be in writing, executed by duly (b) The amount of attorney’s fees authorized officer or officers, and ad- that may be charged in connection dressed to the Foreign Claims Settle- with claims falling within the purview ment Commission of the United States, of subchapter B of this chapter is gov- Washington, DC 20579. Upon receipt of erned by the provisions of section 10 of

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the War Claims Act of 1948, as amended ance of former Commission members, (50 U.S.C. App. 2009). officers, and employees, including spe- (c) The amount of attorney’s fees cial Government employees, in the ca- that may be charged in connection pacity of agent, attorney or represent- with claims falling within the purview ative on behalf of claimants before the of subchapter D of this chapter is gov- Commission. erned by the provisions of section 1705(b)(6) of the National Defense Au- PART 501—SUBPOENAS, thorization Act for Fiscal Year 2017, DEPOSITIONS, AND OATHS Title XVII, Guam World War II Loy- alty Recognition Act, Public Law 114– Sec. 328. 501.1 Extent of authority. [66 FR 49844, Oct. 1, 2001, as amended at 82 FR 501.2 Subpoenas. 16126, Apr. 3, 2017] 501.3 Service of process. 501.4 Witnesses. § 500.4 Suspension of attorneys. 501.5 Depositions. 501.6 Documentary evidence. (a) The Commission may disqualify, 501.7 Time. or deny, temporarily or permanently, AUTHORITY: Sec. 2, Pub. L. 896, 80th Cong., the privilege of appearing or practicing 62 Stat. 1240, as amended (50 U.S.C. App. before it in any way to any person who 2001); sec. 3, Pub. L. 455, 81st Cong., 64 Stat. is found after a hearing in the matter— 12, as amended (22 U.S.C. 1622). (1) Not to possess the requisite quali- SOURCE: 66 FR 49844, Oct. 1, 2001, unless fications to represent others before the otherwise noted. Commission; or (2) To be lacking in character or in- § 501.1 Extent of authority. tegrity or to have engaged in unethical (a) Subpoenas, oaths and affirmations. or improper professional conduct; or The issuance of subpoenas, the admin- (3) To have violated sections 10 and istration of oaths and affirmations, the 214 of the War Claims Act of 1948, as taking of affidavits, the conduct of in- amended, section 4(f) of the Inter- vestigations, and the examination of national Claims Settlement Act of 1949, witnesses by the Commission and its as amended, or section 1705(b)(6) of the members, officers and employees is National Defense Authorization Act for governed by the provisions of 22 U.S.C. Fiscal Year 2017, Title XVII, Guam 1623(c) and 50 U.S.C. App. 2001(c). World War II Loyalty Recognition Act. (b) Certification. The Commission or (b) Contemptuous or contumacious any member thereof may, for the pur- conduct at any hearing will be ground pose of a hearing, examination, or infor exclusion from that hearing and for vestigation, certify the correctness of summary suspension without a hearing any papers, documents, and other mat- for the duration of the hearing. ters pertaining to the administration [66 FR 49844, Oct. 1, 2001, as amended at 82 FR of any laws relating to the functions of 16126, Apr. 3, 2017] the Commission.

§ 500.5 Standards of Conduct. § 501.2 Subpoenas. The conduct of the members, officers (a) Issuance. A member of the Com- and employees of the Commission, in- mission or a designated employee may, cluding its special Government em- on the member or employee’s own voli- ployees, is governed by the Standards of tion or upon written application by Ethical Conduct for Employees of the Ex- any party and upon a showing of gen- ecutive Branch set forth in 5 CFR part eral relevance and reasonable scope of 2635 and the Supplemental Standards of the evidence sought, issue subpoenas Conduct for Employees of the Department requiring persons to appear and testify of Justice set forth in 5 CFR part 3801. or to appear and produce documents. Applications for issuance of subpoenas § 500.6 Disqualification of former em- for production of documents shall ployees. specify the books, records, correspond- The provisions of 18 U.S.C. 207 shall ence, or other documents sought. The govern the post-employment appear- subpoena will show on its face the

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name and address of the party at whose executive officer or a director of the request the subpoena was issued. corporation to be served, or to a person (b) Deposit for costs. The Commission competent to accept service; or or designated employee, before issuing (2) By leaving a copy thereof at the any subpoena in response to any appli- residence, principal office or place of cation by an interested party, may re- business of the person, partnership, or quire a deposit in an amount adequate corporation. to cover fees and mileage involved. (3) Proof of service. The return re- (c) Motion to quash. If any person sub- ceipt for the order, other process or poenaed does not intend to comply supporting papers, or the verification with the subpoena, that person must, by the person serving, setting forth the within 15 days after the date of service manner of service, will be proof of the of the subpoena, petition in writing to service of the document. quash the subpoena. The basis for the motion must be stated in detail. Any (4) Service upon attorney or agent. party desiring to file an answer to a When any party has appeared by an au- motion to quash must file the answer thorized attorney or agent, service not later than 15 days after the filing upon the party’s attorney or agent will of the motion. The Commission will be deemed service upon the party. rule on the motion to quash, duly rec- (d) Service by registered mail or certified ognizing any answer thereto filed. The mail. Service by registered mail or cer- motion, answer, and any ruling thereon tified mail will be regarded as complete will become part of the official record. on the date the return post office re- (d) Appeal from interlocutory order. An ceipt for the orders, notices and other appeal may be taken to the Commis- papers is received by the Commission. sion by the interested parties from the (e) Service by overnight express delivery denial of a motion to quash or from the service or by first class mail. Service by refusal to issue a subpoena for the pro- overnight express delivery service or duction of documentary evidence. first class mail will be regarded as (e) Order of court upon failure to com- complete upon deposit, respectively, in ply. Upon the failure or refusal of any the delivery service’s package recep- person to comply with a subpoena, the tacle or in the United States mail prop- Commission may invoke the aid of the erly stamped and addressed. United States District Court within (f) Service by telegraph. Service by the jurisdiction of which the hearing, telegraph will be regarded as complete examination or investigation is being when deposited with a telegraph com- conducted, or wherein that person re- pany properly addressed and with sides or transacts business, as provided charges prepaid. in 22 U.S.C. 1623(c). (g) Service by publication. Service by § 501.3 Service of process. publication is completed when due notice has been given in the publication (a) By whom served. The Commission for the time and in the manner pro- will serve all orders, notices and other vided by law or rule. papers issued by it, together with any other papers which it is required by (h) Date of service. The date of service law to serve. is the day upon which the document is (b) Kinds of service. Subpoenas, or- deposited in the United States mail or ders, rulings, and other processes of the delivered in person, as the case may be. Commission may be served by deliv- (i) Filing with Commission. Papers re- ering in person, by registered or cer- quired to be filed with the Commission tified mail, by overnight express deliv- will be deemed filed upon actual re- ery service, by first class mail, by tele- ceipt by the Commission accompanied graph, or by publication. by proof of service upon parties re- (c) Personal service. Service by deliv- quired to be served. Upon the actual re- ering in person may be accomplished ceipt, the filing will be deemed com- by: plete as of the date of deposit in the (1) Delivering a copy of the document mail or with the telegraph company as to the person to be served, to a member provided in paragraphs (e) and (f) of of the partnership to be served, to an this section.

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§ 501.4 Witnesses. the witness whose deposition is to be (a) Examination of witnesses. Wit- taken, the time, the place, and where nesses must appear in person and be ex- practicable the designation of the offi- amined orally under oath, except that cer before whom the witness is to tes- for good cause shown, testimony may tify. The officer may or may not be the be taken by deposition. one specified in the application. The (b) Witness fees and mileage. Witnesses order will be served upon all parties at summoned by the Commission on its least 10 days prior to the date of the own behalf or on behalf of a claimant taking of the deposition. or interested party will be paid the (b) Who may take. The deposition may same fees and mileage that are allowed be taken before the designated officer and paid witnesses in the District or, if none is designated, before any of- Courts of the United States. Witness ficer authorized to administer oaths by fees and mileage will be paid by the the laws of the United States. If the ex- Commission or by the party at whose amination is held in a foreign country, request the witness appears. it may be taken before a secretary of (c) Transcript of testimony. Every per- an embassy or legation, consul-general, son required to attend and testify will consul, vice consul, or consular agent be entitled, upon payment of prescribed of the United States. costs, to receive a copy of the record- (c) Examination and certification of tes- ing of the testimony or a transcript of timony. At the time and place specified the recording. Every person required to in the Commission’s order, the officer submit documents or other evidence taking the deposition will permit the will be entitled to retain a copy there- witness to be examined and cross-ex- of. amined under oath by all parties ap- § 501.5 Depositions. pearing, and the testimony will be reduced to writing by, or under the direc- (a) Application to take. (1) An application of, the presiding officer. All objection to take a deposition must be in tions to questions or evidence will be writing setting forth the reason why deemed waived unless made in accord- the deposition should be taken, the ance with paragraph (d) of this section. name and address of the witness, the The officer will not have power to rule matters concerning which it is ex- upon any objections but will note them pected the witness will testify, and the upon the deposition. The testimony time and place proposed for the taking must be subscribed by the witness in of the deposition, together with the name and address of the person before the presence of the officer who will at- whom it is desired that the deposition tach a certificate stating that the wit- be taken. If the deposition is being of- ness was duly sworn, that the deposi- fered in connection with a hearing or tion is a true record of the testimony examination, the application for depo- and exhibits given by the witness and sition must be made to the Commission that the officer is not counsel or attor- at least 15 days prior to the proposed ney to any of the interested parties. date of such hearing or examination. The officer will immediately seal and (2) Application to take a deposition deliver an original and two copies of may be made during a hearing or exam- the transcript, together with the offi- ination, or subsequent to a hearing or cer’s certificate, by registered mail to examination, only where it is shown the Foreign Claims Settlement Com- for good cause that the facts as set mission, Washington, DC 20579 or, if ap- forth in the application to take the plicable, to the designated Commission deposition were not within the knowl- field office. edge of the person signing the applica- (d) Admissibility in evidence. The depo- tion prior to the time of the hearing or sition will be admissible in evidence, examination. subject to such objections to the ques- (3) The Commission or its representations and answers as were noted at the tive will, upon receipt of the applica- time of taking the deposition, or with- tion and a showing of good cause, make in ten (10) days after the return there- and cause to be served upon the parties of, and would be valid were the witness an order which will specify the name of personally present at the hearing.

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(e) Errors and irregularities. All errors of subpoenas for production of docu- or irregularities occurring will be ments must specify the books, records, deemed waived unless a motion to sup- correspondence or other documents press the deposition or some part sought. The production of documentary thereof is made with reasonable evidence will not be required at any promptness after the defect is, or with place other than the witness’s place of due diligence might have been, business. The production of such docu- ascertained. ments will not be required at any place (f) Scope of use. The deposition of a if, prior to the return date specified in witness, if relevant, may be used if the the subpoena, the person either has Commission finds: furnished the issuer of the subpoena (1) That the witness has died since with a properly certified copy of the the deposition was taken; or documents or has entered into a stipu- (2) That the witness is at a distance lation as to the information contained greater than 100 miles radius of Wash- in the documents. ington, DC, the designated field office or the designated place of the hearing; § 501.7 Time. or (a) Computation. In computing any (3) That the witness is unable to at- period of time prescribed or allowed by tend because of other good cause the regulations, by order of the Com- shown. mission, or by any applicable statute, (g) Interrogatories and cross-interrog- the day of the act, event, or default atories. Depositions may also be taken after which the designated period of and submitted on written interrog- time begins to run is not to be in- atories in substantially the same man- cluded. The last day of the period so ner as depositions taken by oral exam- computed is to be included, unless it is ination. When a deposition is taken a Saturday, Sunday or legal holiday, in upon interrogatories and cross-inter- which event the period runs until the rogatories, none of the parties may be end of the next day that is neither a present or represented, and no person, Saturday, Sunday nor a holiday. When other than the witness, the person’s the period of time prescribed or al- representative or attorney, a steno- lowed is less than 7 days, intermediate graphic reporter and the presiding offi- Saturdays, Sundays and holidays will cer, may be present at the examination be excluded in the computation. of the witness, which fact will be cer- (b) Enlargement. When by the regula- tified by the officer, who will read the tions in this chapter, or by a notice interrogatories and cross-interrog- given thereunder or by order of the atories to the witness in their order Commission, an act is required or al- and reduce the testimony to writing in lowed to be done at or within a specific the witness’s own words. time, the Commission for good cause (h) Fees. A witness whose deposition shown may, at any time in its discre- is taken pursuant to the regulations in tion: this part, and the officer taking the (1) With or without motion, notice, deposition, will be entitled to the same or previous order or fees and mileage allowed and paid for (2) Upon motion, permit the act to be like service in the United States Dis- done after the expiration of the speci- trict Court for the district in which the fied period. deposition is taken. Such fees will be paid by the Commission or by the PART 502—PUBLIC INFORMATION- party at whose request the deposition FREEDOM OF INFORMATION ACT is being taken. Sec. § 501.6 Documentary evidence. 502.1 Organization and authority—Foreign Documentary evidence may consist Claims Settlement Commission. of books, records, correspondence or 502.2 Material to be published in the Fed- eral Register pursuant to the Freedom of other documents pertinent to any hear- Information Act. ing, examination, or investigation 502.3 Effect of nonpublication. within the jurisdiction of the Commis- 502.4 Incorporation by reference. sion. The application for the issuance 502.5 Records generally available.

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502.6 Current index. (1) The appointment of Commission 502.7 Additional documents and records gen- employees; erally available for inspection and copy- (2) The direction of Commission em- ing. 502.8 Documents on-line. ployees and the supervision of their of- 502.9 Effect of noncompliance. ficial duties; 502.10 Availability of records. (3) The distribution of business 502.11 Actions on requests. among employees and organizational 502.12 Appeals. units within the Commission; 502.13 Exemptions. (4) The preparation of budget esti- 502.14 Fees for services. mates; and AUTHORITY: 5 U.S.C. 552. (5) The use and expenditures of Com- SOURCE: 66 FR 49844, Oct. 1, 2001, unless mission funds appropriated for ex- otherwise noted. penses of administration. (e) Requests for records must be § 502.1 Organization and authority— made in writing by mail or presented Foreign Claims Settlement Commis- in person to the Administrative Offi- sion. cer, Foreign Claims Settlement Com- (a) The Foreign Claims Settlement mission, Washington, DC 20579. Commission of the United States (‘‘the (f) The offices of the Commission are Commission’’) is an independent agen- located at 600 E Street NW (Bicenten- cy of the Federal Government created nial Building), Room 6002, Washington, by Reorganization Plan No. 1 of 1954 (68 DC. Stat. 1279) effective July 1, 1954. The Commission was transferred to the De- § 502.2 Material to be published in the partment of Justice as an independent Federal Register pursuant to the agency within that department as of Freedom of Information Act. October 1, 1980, under the terms of Pub- The Commission will separately state lic Law 96–209, approved March 14, 1980 and concurrently publish the following (94 Stat. 96, 22 U.S.C. 1622a). Its duties materials in the FEDERAL REGISTER for and authority are defined in the Inter- the guidance of the public: national Claims Settlement Act of 1949, (a) Descriptions of its central and as amended (64 Stat. 12, 22 U.S.C. 1621– field organization and the established 1645o) and the War Claims Act of 1948 places at which, the officers from (62 Stat. 1240, 50 U.S.C. App. 2001–2017p). whom, and the methods whereby, the (b) The Commission has jurisdiction public may secure information, make to determine the validity and amount submittals or requests, or obtain deci- of claims of United States nationals sions. against foreign governments for com- (b) Statements of the general course pensation for losses and injuries sus- and method by which its functions are tained by those nationals, pursuant to channeled and determined, including programs authorized under either of the nature and requirements of all for- the cited Acts. Funds for payment of mal and informal procedures available. claims are derived from international (c) Rules of procedure, descriptions of settlement agreements or through liq- forms available or the places at which uidation of foreign assets in the United forms may be obtained, and instruc- States by the Department of Justice or tions as to the scope and contents of Treasury, or from public funds when all papers, reports, or examinations. provided by the Congress. (d) Substantive rules of general ap- (c) The Chair and the two part-time plicability adopted as authorized by members of the Commission are ap- law, and statements of general policy pointed by the President with the ad- or interpretations of general applica- vice and consent of the Senate to serve bility formulated and adopted by the for 3-year terms of office as provided in agency. 22 U.S.C. 1622c(c). (e) Every amendment, revision, or re- (d) All functions of the Commission peal of the foregoing. are vested in the Chair with respect to the internal management of the affairs § 502.3 Effect of nonpublication. of the Commission, including but not Except to the extent that a person limited to: has actual and timely notice of the

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terms thereof, no person will in any (d) International Claims Settlement manner be required to resort to, or be Act of 1949, with amendments; the War adversely affected by, any matter re- Claims Act of 1948, with amendments; quired to be published in the FEDERAL and related Acts. REGISTER and not so published. (e) Claims agreements with foreign governments effecting the settlement § 502.4 Incorporation by reference. of claims under the jurisdiction of the For purposes of this part, matter Commission. which is reasonably available to the (f) Press releases and other miscella- class of persons affected thereby will neous material concerning Commission be deemed published in the FEDERAL operations. REGISTER when incorporated by ref- (g) Indexes of claims filed in the var- erence therein with the approval of the ious claims programs administered by Director of the Federal Register. the Commission.

§ 502.5 Records generally available. § 502.8 Documents on-line. The Commission will make promptly Commission documents available in available to any member of the public electronic format may be accessed via the following documents: the Commission’s World Wide Web site, (a) Proposed and Final Decisions (in- the address of which is http:// cluding dissenting opinions) and all or- www.usdoj.gov/fcsc. ders made with respect thereto, except when exempted from public disclosure § 502.9 Effect of non-compliance. by statute; No decision, statement of policy, in- (b) Statements of policy and inter- terpretation, or staff manual or in- pretations which have been adopted by struction that affects any member of the Commission which have not been the public will be relied upon, used, or published in the FEDERAL REGISTER; cited as precedent by the Commission and against any private party unless it has (c) A current index, which will be up- been indexed and either made available dated at least quarterly, covering the or published as provided by this part, foregoing material adopted, issued or or unless that private party has actual promulgated after July 4, 1967. Publica- and timely notice of the terms thereof. tion of an index is deemed both unnecessary and impractical. However, cop- § 502.10 Availability of records. ies of the index are available upon re- (a) Each person desiring access to a quest for a fee of the direct cost of du- record covered by this part must com- plication. ply with the following provisions: (1) A written request must be made § 502.6 Current index. for the record. The Commission will maintain and (2) Such request must indicate that it make available for public inspection is being made under the Freedom of In- and copying, current indexes providing formation Act. identifying information for the public (3) The envelope in which the request as to any matter issued, adopted, or is sent must be prominently marked promulgated after July 4, 1967, as re- with the letters ‘‘FOIA.’’ quired by 5 U.S.C. 552(a)(2). (4) The request must be addressed to the appropriate official or employee of § 502.7 Additional documents and the Commission as set forth in para- records generally available for in- graph (c) of this section. spection and copying. (5) The foregoing requirements must The following types of documents are be complied with whether the request also available for inspection and copy- is mailed or hand-delivered to the Com- ing in the offices of the Commission: mission. (a) Rules of practice and procedure. (b) If the requirements of paragraph (b) Annual report of the Commission (a) of this section are not met, the to the Congress of the United States. twenty-day time limit described in (c) Bound volumes of Commission de- § 502.10(a) will not begin to run until cisions. the request has been identified by an

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official or employee of the Commission employee, including a statement of the as a request under the Freedom of In- reason for denial. That statement will formation Act and has been received by contain, as applicable: the appropriate official or employee of (1) A reference to the specific exemp- the Commission. tion under the Freedom of Information (c) Each person desiring access to a Act authorizing the withholding of a record covered in this part that is lo- record, and to the extent consistent cated in the Commission, or to obtain with the purpose of the exemption, an a copy of such a record, must make a explanation of how the exemption ap- written request to the Administrative plies to the record withheld. Officer, Foreign Claims Settlement (2) If a record requested does not Commission, 600 E Street NW, Room exist, or has been legally disposed of, 6002, Washington, DC 20579. (d) Each request should reasonably the requester will be so notified. describe the particular record re- (c) In unusual circumstances, the quested. The request should specify the time limit prescribed in paragraph (a) subject matter, the date when it was of this section may be extended by made and the person or office that written notice to the person making made it. If the description is insuffi- the request setting forth the reasons cient, the official or employee handling for the extension and the date on which the request may notify the person a determination is expected to be dis- making the request and, to the extent patched. No extension notice will possible, indicate the additional data specify a date that would result in an required. extension for more than twenty work- (e) Each record made available under ing days. As used in this paragraph, this section is available for inspection ‘‘unusual circumstances’’ means, but and copying during regular working only to the extent reasonably nec- hours. Original documents may be cop- essary to the proper processing of the ied but may not be released from cus- particular request— tody. (1) The need to search for and collect (f) Authority to administer this part the requested records from other estab- in connection with Commission records lishments that are separate from the is delegated to the Administrative Offi- office processing the request; cer or the Commission employee acting (2) The need to search for, collect, in that official’s capacity. and appropriately examine a voluminous amount of separate and distinct § 502.11 Actions on requests. records which are demanded in a single (a) The Administrative Officer or any request; or employee acting in that official’s ca- (3) The need for consultation, which pacity will determine within twenty will be conducted with all practicable days (excepting Saturdays, Sundays, speed, with another agency having a and legal public holidays) after the re- substantial interest in the determina- ceipt of any a request whether to com- tion of the request or among two or ply with the request. Upon receipt of a more components of the agency having request for a Commission record which substantial subject-matter interest is available, the Administrative Officer therein. or other employee will notify the requester as to the time the record is § 502.12 Appeals. available, and will promptly make the record available after advising the re- (a) Any person to whom a record has quester of the applicable fees under not been made available within the § 502.13. The person making the request time limits established by paragraph will be notified immediately after any (b) of § 502.11, and any person who has adverse determination, the reasons for been given an adverse determination making the adverse determination and pursuant to paragraph (b) of § 503.10 of the right of the person to appeal. this chapter, that a requested record (b) Any denial of a request for a will not be disclosed, may apply to the record will be written and signed by Office of Information and Privacy, U.S. the Administrative Officer or other Department of Justice, Washington,

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DC 20530, for reconsideration of the re- disclosure under the provisions of 5 quest. The person making such a re- U.S.C. 552(b): quest will also be notified of the provi- (a) Records which are specifically re- sions for judicial review provided in 5 quired by Executive Order to be kept U.S.C. 552(a)(4). secret in the interest of national de- (b) Each application for reconsider- fense or foreign policy and are in fact ation must be made in writing within properly classified pursuant to such sixty days from the date of receipt of Executive Order. This exception may the original denial and must include all apply to records in the custody of the information and arguments relied upon Commission which have been trans- by the person making the request. The mitted to the Commission by another application must indicate that it is an agency which has designated the record appeal from a denial of a request made as nonpublic under Executive Order. under the Freedom of Information Act. (b) Records related solely to the in- The envelope in which the application ternal personnel rules and practices of is sent must be prominently marked the Commission. with the letters ‘‘FOIA.’’ If these re- (c) Records specifically exempted quirements are not met, the twenty from disclosure by statute. day limit described in § 502.10 will not (d) Information given in confidence. begin to run until the application has This includes information obtained by been identified as an application under or given to the Commission which con- the Freedom of Information Act and stitutes confidential commercial or fi- has been received by the Office of In- nancial information, privileged infor- formation and Privacy of the Depart- mation, or other information which ment of Justice. was given to the Commission in con- (c) Whenever it is to be determined fidence or would not customarily be re- necessary, the person making the released by the person from whom it was quest may be required to furnish addi- obtained. tional information, or proof of factual (e) Inter-agency or intra-agency allegations and other proceedings ap- memoranda or letters which would not propriate in the circumstances may be be available by law to a private party ordered. in litigation with the Commission. (d) The decision not to disclose a Such communications include inter- record under this part is considered to agency memoranda, drafts, staff be a withholding for the purposes of 5 memoranda transmitted to the Com- U.S.C. 552(a)(3). mission, written communications between the Commission and its staff re- § 502.13 Exemptions. garding the preparation of Commission In the event any document or record decisions, other documents received or requested hereunder should contain generated in the process of issuing a material which is exempt from disclo- decision or regulation, and reports and sure under this section, any reasonably other work papers of staff attorneys, segregable portion of the record will, accountants, and investigators. notwithstanding that fact, and to the (f) Personnel and medical files and extent feasible, be provided to any per- similar files, the disclosure of which son requesting it, after deletion of the would constitute a clearly unwarranted portions which are exempt under this invasion of personal privacy. section. Documents or records deter- (g) Records or information compiled mined to be exempt from disclosure for law enforcement purposes, but only hereunder may nonetheless be provided to the extent that the production of upon request in the event it is deter- such law enforcement records or infor- mined that the provision of the docu- mation: ment would not violate the public in- (1) Could reasonably be expected to terest or the right of any person to interfere with enforcement pro- whom the information may pertain, ceedings; and the disclosure is not prohibited by (2) Would deprive a person of a right law or Executive Order. The following to a fair trial or an impartial adjudica- categories of records are exempt from tion;

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(3) Could reasonably be expected to Commercial use is defined as a use or constitute an unwarranted invasion of purpose that furthers the commercial, personal privacy; trade or profit interests of the re- (4) Could reasonably be expected to quester or the person on whose behalf disclose the identity of a confidential the request is made. The request also source, including a state, local or for- must reasonably identify the records eign agency or authority or any pri- sought. vate institution which furnished infor- (2) Requests from representatives of mation on a confidential basis and, in news media—Where a request seeks dis- the case of a record or information closure of records to a representative compiled by a criminal law enforce- of the news media, the requester shall ment authority in the course of a be charged only for the actual duplica- criminal investigation, or by an agency tion cost of the records and only to the conducting a lawful security intel- extent that the number of duplications ligence investigation, information fur- exceeds 100 pages; provided, however, nished by a confidential source; that the request must reasonably de- (5) Would disclose techniques and scribe the records sought, and it must procedures for law enforcement inves- appear that the records are for use by tigations or prosecutions if such disclo- the requester in such person’s capacity sure could reasonably be expected to as a news media representative. ‘‘Rep- risk circumvention of the law; or resentative of the news media’’ refers (6) Could reasonably be expected to to any person actively gathering news endanger the life or physical safety of for an entity that is organized and op- any individual. erated to publish or broadcast news to the public. The term news means infor- § 502.14 Fees for services. mation that is about current events or The following provisions shall apply that would be of current interest to the in the assessment and collection of fees public. A ‘‘freelance’’ journalist not ac- for services rendered in processing re- tually employed by a news organiza- quests for disclosure of Commission tion shall be eligible for inclusion records under this part. under this category if the person can (a) Fee for duplication of records: $0.15 demonstrate a solid basis for expecting per page. publication by a news organization. (b) Search and review fees: (3) Requests from educational and (1) Searches for records by clerical non-commercial scientific institu- personnel—$3.00 per quarter hour, in- tions—Where a request seeks disclosure cluding time spent searching for and of records to an educational or non- copying any record. commercial scientific institution, the (2) Search for and review of records requester shall be charged only for the by professional and supervisory per- actual duplication cost of the records sonnel—$6.00 per quarter hour spent and only to the extent that the number searching for any record or reviewing a of duplications exceeds 100 pages; pro- record to determine whether it may be vided, however, that the request must disclosed, including time spent in copy- reasonably describe the records sought ing any record. and it must appear that the records are (c) Certification and validation fee: to be used by the requester in further- $1.00 for each certification, validation ance of its educational or non-commer- or authentication of a copy of any cial scientific research programs. record. ‘‘Educational institution’’ refers to a (d) Imposition of fees: preschool, a public or private elemen- (1) Commercial use requests—Where tary or secondary school, or an institu- a request appears to seek disclosure of tion of undergraduate, graduate, pro- records for a commercial use, the re- fessional or vocational education, quester shall be charged for the time which operates a program or programs spent by Commission personnel in of scholarly research. ‘‘Non-commer- searching for the requested record and cial scientific institution’’ refers to an in reviewing the record to determine institution that is not operated on a whether it should be disclosed, and for ‘‘commercial’’ basis, within the mean- the cost of each page of duplication. ing of paragraph (d)(1) of this section

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and which is operated solely for the (3) With regard to any request com- purpose of conducting scientific re- ing within paragraphs (h) (1) and (2) of search, the results of which are not in- this section, the administrative time tended to promote any particular prod- limits set forth in §§ 502.11 and 502.12 of uct or industry. this part will begin to run only after (4) All other requests—Where a re- the requisite fee payments have been quest seeks disclosure of records to a received. person or entity other than one coming (i) Non-payment. In the event of non- within paragraphs (d) (1), (2) and (3) of payment of billed charges for disclo- this section, the requester shall be sure of records, the provisions of the charged the full cost of search and du- Debt Collection Act of 1982 (Pub. L. 97– plication. However, the first two hours 365), including disclosure to consumer of search time and the first 100 pages of credit reporting agencies and referral duplication shall be furnished without to collection agencies, may be utilized charge. to obtain payment. (e) Aggregating of requests. If there ex- (j) Waiver or reduction of charges. Fees ists a solid basis for concluding that a otherwise chargeable in connection requester or group of requesters has with a request for disclosure of a submitted a series of partial requests record shall be waived or reduced for disclosure of records in an attempt where— to evade assessment of fees, the re- (1) It is determined that disclosure is in the public interest because it is like- quests may be aggregated so as to con- ly to contribute significantly to public stitute a single request, with fees understanding of the operations or ac- charged accordingly. tivities of the government and is not (f) Unsuccessful searches. Except as primarily in the commercial interest of provided in paragraph (d) of this sec- the requester; or tion, the cost of searching for a re- (2) It is determined that the cost of quested record shall be charged even if collection would be equal to or exceed the search fails to locate the record or the amount of those fees. No charges it is determined that the record is ex- shall be assessed if the fees amount to empt from disclosure. $8.00 or less. (g) Interest. In the event a requester fails to remit payment of fees charged PART 503—PRIVACY ACT AND for processing a request under this part within 30 days from the date those fees GOVERNMENT IN THE SUNSHINE were billed, interest on the fees may be REGULATIONS assessed beginning on the 31st day after the billing date, to be calculated Subpart A—Privacy Act Regulations at the rate prescribed in 31 U.S.C. 3717. Sec. (h) Advance payments. (1) If, but only 503.1 Definitions—Privacy Act. if, it is estimated or determined that 503.2 General policies—Privacy Act. processing of a request for disclosure of 503.3 Conditions of disclosure. 503.4 Accounting of certain disclosures. records will result in a charge of fees of 503.5 Access to records or information. more than $250.00, the requester may be 503.6 Determination of requests for access required to pay the fees in advance in to records. order to obtain completion of the proc- 503.7 Amendment of a record. essing. 503.8 Appeals from denial of requests for (2) If a requester has previously failed amendment to records. 503.9 Fees. to make timely payment (i.e., within 30 503.10 Exemptions. days of billing date) of fees charged 503.11 Reports. under this part, the requester may be 503.12 Notices. required to pay those fees and interest accrued thereon, and to make an ad- Subpart B—Government in the Sunshine vance payment of the full amount of Regulations estimated fees chargeable in connec- 503.20 Definitions. tion with any pending or new request, 503.21 Notice of public observation. in order to obtain processing of the 503.22 Scope of application. pending or new request. 503.23 Open meetings.

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503.24 Grounds for closing a meeting. agency from which information is re- 503.25 Announcement of meetings. trieved by the name of the individual 503.26 Procedures for closing of meetings. or by some identifying number, sym- 503.27 Reconsideration of opening or clos- bol, or other identifying particular as- ing, or rescheduling a meeting. 503.28 Record of closed meetings, or closed signed to the individual. portion of a meeting. 503.29 Requests for information. § 503.2 General policies—Privacy Act.

AUTHORITY: 5 U.S.C. 552a(f). The Commission will protect the privacy of an individual identified in any SOURCE: 66 FR 49844, Oct. 1, 2001, unless information or record systems which it otherwise noted. maintains. Accordingly, its officials and employees, except as otherwise Subpart A—Privacy Act provided by law or regulation, will: Regulations (a) Permit an individual to determine what records pertaining to that indi- § 503.1 Definitions—Privacy Act. vidual are collected, maintained, used For the purpose of this part: or disseminated by the Commission. Agency includes any executive de- (b) Permit an individual to prevent a partment, military department, gov- record pertaining to that individual ob- ernment corporation, government contained by the Commission for a par- trolled corporation, or other establish- ticular purpose from being used or ment in the executive branch of the made available for another purpose government (including the Executive without the individual’s consent. Office of the President) or any inde- (c) Permit an individual to gain ac- pendent regulatory agency. The For- cess to information pertaining to that eign Claims Settlement Commission individual in Commission records, to (‘‘Commission’’) is an agency within have a copy made of all or any portion the meaning of the term. thereof, and to correct or amend those Individual means a citizen of the records. United States or an alien lawfully ad- (d) Collect, maintain, use, or dissemi- mitted for permanent residence. nate any record of identifiable personal Maintain includes maintain, collect, information in a manner that assures use or disseminate. that the Commission’s action is for a Record means any item, collection, or necessary and lawful purpose, that the grouping of information about an indi- information is current and accurate for vidual that is maintained by an agen- its intended use, and that adequate cy, including, but not limited to, an in- safeguards are provided to prevent mis- dividual’s education, financial trans- use of the information. actions, medical history, and criminal (e) Permit exemptions from record or employment history, and that con- requirements provided under the Pri- tains an individual’s name, or the iden- vacy Act only where an important pub- tifying number, symbol, or other iden- lic policy use for the exemption has tifying particular assigned to the indi- been determined in accordance with vidual, such as a finger or voice print specific statutory authority. or a photograph. Routine use means, with respect to § 503.3 Conditions of disclosure. the disclosure of a record, the use of The Commission will not disclose any that record for a purpose which is com- record contained in a system of records patible with the purpose for which it by any means of communication to any was collected. person or any other agency except by Statistical record means a record in a written request of or prior written con- system of records maintained for sta- sent of the individual to whom the tistical research or reporting purposes record pertains unless the disclosure is: only and not used in whole or in part in (a) To those officers and employees of making any determination about an the Commission who have a need for identifiable individual except as pro- the record in the performance of their vided by section 13 U.S.C. 8. duties; System of records means a group of (b) Required under the Freedom of any records under the control of any Information Act, 5 U.S.C. 552;

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(c) For a routine use; agency made under § 503.3(c), (d), (e), (d) To the Bureau of Census for pur- (f), (g), (h), (i), (j), and (k) of this part. poses of planning or carrying out a cen- (b) Except for a disclosure made to sus or survey or related activity under another agency or to an instrumen- the provisions of Title 13, United tality of any governmental jurisdiction States Code; under § 503.3(g) of this part, the Admin- (e) To a recipient who has provided istrative Officer will make the ac- the Commission with adequate advance counting as required under paragraph assurance that the record will be used (a) of this section available to any indi- solely as a statistical research or re- vidual upon written request made in porting record, and the record is to be accordance with § 503.5. transferred in a form that is not indi- (c) The Administrative Officer will vidually identifiable; inform any person or other agency (f) To the National Archives of the about any correction or notation of United States as a record which has dispute made in accordance with § 503.7 sufficient historical or other value to of this part of any record that has been warrant its continued preservation by disclosed to the person or agency if an the United States Government or for accounting of the disclosure was made. evaluation to determine whether the (d) An accounting of disclosures of record has that value; records within this section will consist of the date, nature, the purpose of each (g) To another agency or to an in- disclosure of a record to any person or strumentality of any government juris- to another agency, and the name and diction within or under control of the address of the person or agency to United States for a civil or criminal whom the disclosure is made. law enforcement activity authorized by (e) This accounting shall be retained law, provided the head of the agency or for 5 years or the life of the record, instrumentality has made a prior writ- whichever is longer, after the disclo- ten request to the Commission, speci- sure for which the accounting is made. fying the particular record and the law enforcement activity for which it is § 503.5 Access to records or informa- sought; tion. (h) To a person pursuant to a showing (a) Upon request in person or by of compelling circumstances affecting mail, any individual will be informed the health or safety of an individual if, whether or not a system of records upon disclosure, notification is trans- maintained by the Commission con- mitted to the last known address of the tains a record or information per- individual; taining to that individual. (i) To either House of Congress, or, to (b) Any individual requesting access the extent of matter within its juris- to a record or information in person diction, any committee or sub- must appear in person at the offices of committee thereof, any joint com- the Foreign Claims Settlement Com- mittee of Congress or subcommittee of mission, 600 E Street, NW., Room 6002, the joint committee; Washington, DC, between the hours of 9 (j) To the Comptroller General, or a.m. and 5:30 p.m., Monday through any of that official’s authorized rep- Friday, and resentatives, in the course of the per- (1) Provide information sufficient to formance of the duties of the General identify the record, e.g., the individ- Accounting Office; or ual’s own name, claim and decision (k) Pursuant to the order of a court number, date and place of birth, etc.; of competent jurisdiction. (2) Provide identification sufficient to verify the individual’s identity, e.g., § 503.4 Accounting of certain disclo- driver’s license, identification or Medi- sures. care card; and (a) Except for disclosures under (3) Any individual requesting access § 503.3(a) and (b) of this part, the Ad- to records or information pertaining to ministrative Officer will keep an accu- himself or herself may be accompanied rate accounting of each disclosure of a by a person of the individual’s own record to any person or to another choosing while reviewing the records or

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information. If an individual elects to § 503.7 Amendment of a record. be so accompanied, advance notifica- (a) Any individual may request tion of the election will be required amendment of a record pertaining to along with a written statement author- himself or herself according to the pro- izing disclosure and discussion of the cedure in paragraph (b) of this section, record in the presence of the accom- except in the case of records described panying person at any time, including under paragraph (d) of this section. the time access is granted. (b) After inspection by an individual (c) Any individual making a request of a record pertaining to himself or for access to records or information herself, the individual may file a writ- pertaining to himself or herself by mail ten request, presented in person or by must address the request to the Admin- mail, with the Administrative Officer, istrative Officer (Privacy Officer), For- for an amendment to a record. The re- eign Claims Settlement Commission, quest must specify the particular por- 600 E Street, NW., Room 6002, Wash- tions of the record to be amended, the ington, DC 20579, and must provide in- desired amendments and the reasons formation acceptable to the Adminis- therefor. trative Officer to verify the individ- (c) Not later than ten (10) days (ex- ual’s identity. cluding Saturdays, Sundays, and legal (d) Responses to requests under this holidays) after the receipt of a request section normally will be made within made in accordance with this section ten (10) days of receipt (excluding Sat- to amend a record in whole or in part, urdays, Sundays, and legal holidays). If the Administrative Officer will: it is not possible to respond to requests (1) Make any correction of any por- within that period, an acknowledgment tion of the record which the individual will be sent to the individual within believes is not accurate, relevant, ten (10) days of receipt of the request timely or complete and thereafter in- (excluding Saturdays, Sundays, and form the individual of such correction; legal holidays). or (2) Inform the individual, by certified § 503.6 Determination of requests for access to records. mail return receipt requested, of the refusal to amend the record, setting (a) Upon request made in accordance forth the reasons therefor, and notify with § 503.5, the Administrative Officer the individual of the right to appeal will: that determination as provided under (1) Determine whether or not the re- Sec. 503.8 of this part. quest will be granted; (d) The provisions for amending (2) Make that determination and pro- records do not apply to evidence pre- vide notification within a reasonable sented in the course of Commission period of time after receipt of the re- proceedings in the adjudication of quest. claims, nor do they permit collateral (b) If access to a record is denied be- attack upon what has already been cause information has been compiled subject to final agency action in the by the Commission in reasonable an- adjudication of claims in programs pre- ticipation of a civil or criminal action viously completed by the Commission or proceeding, the Administrative Offi- pursuant to statutory time limita- cer will notify the individual of that tions. determination and the reason therefor. (c) If access to the record is granted, § 503.8 Appeals from denial of requests the individual making the request for amendment to records. must notify the Administrative Officer (a) An individual whose request for whether the record requested is to be amendment of a record pertaining to copied and mailed to the individual. the individual is denied may request a (d) If a record is to be made available review of that determination. The refor personal inspection, the individual quest must be addressed to the Chair of must arrange with the Administrative the Commission, and must specify the Officer a mutually agreeable time and reasons for which the refusal to amend place for inspection of the record. is challenged.

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(b) If on appeal the refusal to amend posal to establish or alter any Commis- the record is upheld, the Commission sion system of records, as required by 5 will permit the individual to file a U.S.C. 552a(o). statement setting forth the reasons for (b) If at any time a system of records disagreement with the determination. maintained by the Commission is de- The statement must also be submitted termined to be exempt from the appli- within 30 days of receipt of the denial. cation of 5 U.S.C. 552a in accordance The statement will be included in the with the provisions of 5 U.S.C. 552a(j) system of records in which the disputed and (k), the number of records con- record is maintained and will be tained in such system will be sepa- marked so as to indicate: rately listed and reported to the Office (1) That a statement of disagreement of Management and Budget. has been filed, and (2) Where in the system of records § 503.12 Notices. the statement may be found. The Commission will publish in the FEDERAL REGISTER at least annually a § 503.9 Fees. notice of the existence and character of Fees to be charged, if any, to any in- the systems of records which it main- dividual for making copies of that indi- tains. Such notice will include: vidual’s record excluding the cost of (a) The name and location of each any search for and review of the record system; will be as follows: (b) The categories of individuals on (a) Photocopy reproductions: each whom the records are maintained in copy $0.15. each system; (b) Where the Commission under- (c) The categories of records main- takes to perform for a requester, or tained in each system; any other person, services which are (d) Each routine use of the records clearly not required to be performed contained in each system including the under the Privacy Act, either volun- categories of users and the purpose of tarily or because those services are re- each use; quired by some other law, the question (e) The policies and practices of the of charging fees for those services will Commission regarding storage, be determined by the official or des- retrievability, access controls, reten- ignee authorized to release the infor- tion, and disposal of the records; mation, under the Federal user charge (f) The title and business address of statute, 31 U.S.C. 583a, any other appli- the agency official who is responsible cable law, and the provisions of § 502.13 for each system of records; of part 502 of this chapter. (g) Commission procedures whereby an individual can be notified if a sys- § 503.10 Exemptions. tem of records contains a record per- No system of records maintained by taining to that individual; the Foreign Claims Settlement Com- (h) Commission procedures whereby mission is exempt from the provisions an individual can be notified how to of 5 U.S.C. 552a as permitted under cer- gain access to any record pertaining to tain conditions by 5 U.S.C. 552a(j) and that individual contained in a system (k). However, the Chair of the Commis- of records, and how to contest its content, and sion reserves the right to promulgate (i) The categories of sources of rules in accordance with the require- records in each system. ments of 5 U.S.C. 553(b)(1), (2) and (3), and 5 U.S.C. 553(c) and (e) to exempt any system of records maintained by Subpart B—Government in the the Commission in accordance with the Sunshine Regulations provisions of 5 U.S.C. 552a(k). AUTHORITY: 5 U.S.C. 552b. § 503.11 Reports. (a) The Administrative Officer or des- § 503.20 Definitions. ignee will provide adequate advance For purposes of this part: Closed meet- notice to Congress and the Office of ing and closed portion of a meeting mean, Management and Budget of any pro- respectively, a meeting or that part of

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a meeting designated as provided in who gave advance notice of such inten- § 503.27 as closed to the public by reason tion. of one or more of the closure provisions listed in § 503.24. § 503.22 Scope of application. Commission means the Foreign Claims The provisions of this part 503, Settlement Commission, which is a §§ 503.20 through 503.29, apply to meet- collegial body that functions as a unit ings of the Commission, and do not composed of three individual members, apply to conferences or other gath- appointed by the President with the erings of employees of the Commission advice and consent of the Senate. who meet or join with others, except at Meeting means the deliberations of at meetings of the Commission to delib- least two (quorum) members of the erate on or conduct official agency Commission where such deliberations business. determine or result in joint conduct or disposition of official Commission busi- § 503.23 Open meetings. ness. Every meeting of the Commission Member means any one of the three will be open to public observation ex- members of the Commission. cept as provided in § 503.24. Open meeting means a meeting or portion of a meeting which is not a closed § 503.24 Grounds for closing a meeting. meeting or a closed portion of a meet- (a) Except in a case where the Com- ing. mission determines otherwise, a meet- Public observation means the right of ing or portion of a meeting may be any member of the public to attend and closed to public observation where the observe, but not participate or inter- Commission determines that the meet- fere in any way, in an open meeting of ing or portion of the meeting is likely the Commission within the limits of to: reasonable and comfortable accom- (1) Disclose matters that are: modations made available for such pur- (i) Specifically authorized under cri- pose by the Commission. teria established by an Executive Order to be kept secret in the interests of na- § 503.21 Notice of public observation. tional defense or foreign policy and (a) A member of the public is not re- (ii) In fact properly classified pursu- quired to give advance notice of an in- ant to such Executive order; tention to exercise the right of public (2) Relate solely to the internal per- observation of an open meeting of the sonnel rules and practices of the Com- Commission. However, in order to permission; mit the Commission to determine the (3) Disclose matters specifically ex- amount of space and number of seats empted from disclosure by statute which must be made available to ac- (other than 5 U.S.C. 552) provided that commodate individuals who desire to such statute: exercise the right of public observa- (i) Requires that the matters be with- tion, those individuals are requested to held from the public in such a manner give notice to the Commission at least as to leave no discretion on the issue, two business days before the start of or the open meeting of the intention to (ii) Establishes particular criteria for exercise that right. withholding or refers to particular (b) Notice of intention to exercise the types of matters to be withheld; right of public observation may be (4) Disclose trade secrets and com- given in writing, in person, or by tele- mercial or financial information ob- phone to the official designated in tained from a person and privileged or § 503.29. confidential; (c) Individuals who have not given (5) Involve accusing any person of a advance notice of intention to exercise crime, or formally censuring any per- the right of public observation will not son; be permitted to attend and observe the (6) Disclose information of a personal open meeting of the Commission if the nature where disclosure would con- available space and seating are nec- stitute a clearly unwarranted invasion essary to accommodate individuals of personal privacy;

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(7) Disclose investigatory records § 503.25 Announcement of meetings. compiled for law enforcement purposes, (a) The Commission meets in its of- or information which if written would fices at 600 E Street, NW, Washington, be contained in such records, but only DC, from time to time as announced by to the extent that the production of timely notice published in the FEDERAL the records or information would: REGISTER. (i) Interfere with enforcement pro- (b) At the earliest practicable time, ceedings, which is estimated to be not later than (ii) Deprive a person of a right to a eight days before the beginning of a fair trial or an impartial adjudication, meeting of the Commission, the Com- (iii) Constitute an unwarranted inva- mission will make available for public sion of personal privacy, inspection in its offices, and, if re- (iv) Disclose the identity of a con- quested, will furnish by telephone or in fidential source and, in the case of a writing, a notice of the subject matter record compiled by a criminal law en- of the meeting, except to the extent forcement authority in the course of a that the information is exempt from disclosure under the provisions of criminal investigation, or by an agency § 503.24. conducting a lawful national security intelligence investigation, confidential § 503.26 Procedures for closing of information furnished only by the con- meetings. fidential source, (a) The closing of a meeting will (v) Disclose investigative techniques occur when: and procedures, or (1) A majority of the membership of (vi) Endanger the life or physical the Commission votes to take that ac- safety of law enforcement personnel; tion. A separate vote of the Commis- (8) Disclose information contained in sion members will be taken with re- or related to examination, operating, spect to each Commission meeting, a or condition reports prepared by, on be- portion or portions of which are pro- half of, or for the use of the Commis- posed to be closed to the public pursu- sion; ant to § 503.24, or with respect to any (9) Disclose information the pre- information which is proposed withheld mature disclosure of which would be under § 503.24. A single vote may be likely to significantly frustrate imple- taken with respect to a series of meet- mentation of a proposed action of the ings, a portion or portions of which are Commission, provided the Commission proposed to be closed to the public, or has not already disclosed to the public with respect to any information con- the content or nature of its proposed cerning that series of meetings, so long action, or is not required by law to as each meeting in the series involves make the disclosure on its own initia- the same particular matters and is scheduled to be held no more than thir- tive prior to taking final action on the ty days after the initial meeting in the proposal; or series. The vote of each Commission (10) Specifically concern the Commis- member participating in the voting sion’s issuance of a subpoena or the will be recorded and no proxies will be Commission’s participation in a civil allowed. action or proceeding, an action in a (2) Whenever any person whose inter- foreign court or international tribunal, ests may be directly affected by a por- or an arbitration, or the initiation, tion of a meeting requests that the conduct, or disposition by the Commis- Commission close that portion to the sion of a particular case of formal public for any of the reasons referred agency adjudication pursuant to the to in § 503.24(e), (f), or (g), the Commis- procedures in 5 U.S.C. 554, or otherwise sion, upon request of any one of its involve a determination on the record Commission members, will take a re- after opportunity for a hearing. corded vote, whether to close that por- (b) If the Commission determines tion of the meeting. that the public interest would require (b) Within one day of any vote taken, that a meeting to be open, it may nev- the Commission will make publicly ertheless so hold. available a written copy of the voting

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reflecting the vote of each member on (b) Any minutes so maintained will the question and a full written expla- fully and clearly describe all matters nation of its action closing the entire discussed and shall provide a full and or portion of the meeting together with accurate summary of any actions a list of all persons expected to attend taken, and the reasons therefor, includ- the meeting and their affiliation. ing a description of each of the views (c) The Commission will announce expressed on any item and the record the time, place and subject matter of of any rollcall vote. All documents the meeting at least eight days before considered in connection with any ac- the meeting. tion will be identified in the minutes. (d) For every closed meeting, before (c) The Commission will promptly the meeting is closed, the Commis- make available to the public, in its of- sion’s Chair will publicly certify that fices, the transcript, electronic record- the meeting may be closed to the pub- ing, or minutes, of the discussion of lic, and will state each relevant closure provision. A copy of the certification, any item on the agenda of a closed together with a statement setting meeting, or closed portion of a meet- forth the time and place of the meeting, except for the item or items of dis- ing, and the persons present, will be re- cussion which the Commission deter- tained by the Commission. mines to contain information which may be withheld under § 503.24. Copies § 503.27 Reconsideration of opening or of the transcript or minutes, or a tran- closing, or rescheduling a meeting. scription of the recording, disclosing The time or place of a Commission the identity of each speaker, will be meeting may be changed following the furnished to any person at the actual public announcement only if the Com- cost of duplication or transcription. mission publicly announces such (d) The Commission will maintain a changes at the earliest practicable complete verbatim copy of the tran- time. The subject matter of a meeting, script, a complete copy of the minutes, or the determination of the Commis- or a complete electronic recording of sion to open or close a meeting, or por- each closed meeting or closed portion tion of a meeting, to the public, may be of a meeting for a period of two years changed following the public announce- after the date of the closed meeting or ment only if a majority of the Commis- closed portion of a meeting. sion members determines by a recorded (e) All actions required or permitted vote that Commission business so re- by this section to be undertaken by the quires and that no earlier announce- Commission will be by or under the au- ment of the changes was possible, and thority of the Chair of the Commission. the Commission publicly announces the changes and the vote of each mem- § 503.29 Requests for information. ber upon the changes at the earliest practicable time. Requests to the Commission for information about the time, place, and § 503.28 Record of closed meetings, or subject matter of a meeting, whether it closed portion of a meeting. or any portions thereof are closed to (a) The Commission will maintain a the public, and any requests for copies complete transcript or electronic re- of the transcript or minutes or of a cording adequate to record fully the transcript of an electronic recording of proceedings of each closed meeting or a closed meeting, or closed portion of a closed portion of a meeting, except meeting, to the extent not exempt that in the case of a meeting or portion from disclosure by the provisions of of a meeting closed to the public pursu- § 503.24, must be addressed to the Ad- ant to § 503.24(d), (h), or (j), the Com- ministrative Officer, Foreign Claims mission will maintain either a tran- Settlement Commission, 600 E Street, script or recording, or a detailed set of NW, Room 6002, Washington, DC 20579, minutes. telephone (202) 616–6975.

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PART 504—FILING OF CLAIMS AND completion and execution by the appli- PROCEDURES THEREFOR cant, that official form will be considered as evidence necessary to complete Sec. the initial claim, and unless that offi- 504.1 Claim defined. cial form is received within thirty (30) 504.2 Time within which claims may be days from the date it was transmitted filed. for execution, if the claimant resides in 504.3 Official claim forms. the continental United States, or 504.4 Place of filing claims. forty-five (45) days if outside the conti- 504.5 Documents to accompany forms. nental United States, the claim may be 504.6 Receipt of claims. disallowed. AUTHORITY: Sec. 2, Pub. L. 896, 80th Cong., as amended (50 U.S.C. App. 2001). § 504.2 Time within which claims may SOURCE: 66 FR 49844, Oct. 1, 2001, unless be filed. otherwise noted. (a) Claims of individuals entitled to benefits under section 5(i) of the War § 504.1 Claim defined. Claims Act of 1948, as added by Public (a) This subchapter is included solely Law 91–289, will be accepted by the in order to provide for the adjudication Commission during the period begin- of any additional claims that may arise ning June 24, 1970, and ending: on behalf of survivors of deceased civil- (1) June 24, 1973, inclusive; ians and military veterans who had (2) 3 years from the date the civilian been listed as missing during the Viet- American citizen by whom the claim is nam conflict but were subsequently de- filed returned to the jurisdiction of the termined to have been interned, in hid- United States; or ing, or captured by a hostile force in (3) 3 years from the date upon which Southeast Asia (see § 504.2(a)(3) and the Commission, at the request of a po- (b)(3)). The Commission no longer has tentially eligible survivor, makes a de- authority to receive or consider any termination that the civilian American other types of claims based on the in- citizen has actually died or may be pre- ternment of civilians or the maltreat- sumed to be dead, in the case of any ci- ment of military servicemen held as vilian American citizen who has not re- prisoners of war by forces hostile to turned to the jurisdiction of the United the United States. States, whichever of the preceding (b) A properly completed and exe- dates last occurs. cuted application made on an official (b) Claims of individuals entitled to form provided by the Foreign Claims benefits under section 6(f) of the War Settlement Commission for such pur- Claims Act of 1948, as added by Public pose constitutes a claim and will be Law 91–289, will be accepted by the processed under the laws administered Commission during the period begin- by the Commission. ning June 24, 1970, and ending: (c) Any communication, letter, note, (1) June 24, 1973, inclusive; or memorandum from a claimant, or (2) 3 years from the date the prisoner the claimant’s duly authorized rep- of war by whom the claim is filed re- resentative, or a person acting as next turned to the jurisdiction of the Armed friend of a claimant who is not legally Forces of the United States; or competent, setting forth sufficient (3) 3 years from the date the Depart- facts to apprise the Commission of an ment of Defense makes a determina- interest to apply under the provisions tion that the prisoner of war has actu- of sections 5(i) and 6(f) of the Act, will ally died or is presumed to be dead, in be deemed to be an informal claim. the case of any prisoner of war who has Where an informal claim is received not returned to the jurisdiction of the and an official form is forwarded for Armed Forces of the United States,

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whichever of the preceding dates last is not returned within the time which occurs. may be designated by the Commission, the claim may be deemed to have been § 504.3 Official claim forms. abandoned and may be disallowed. Official forms are provided for use in the preparation of claims for submis- PART 505—PROVISIONS OF sion to the Commission for processing. GENERAL APPLICATION Claim forms are available at the Wash- ington offices of the Commission and Sec. through other offices as the Commis- 505.1 Persons eligible to file claims. sion may designate. The official claim 505.2 Persons under legal disability. form for all claims under section 5(i) 505.3 Definitions applicable under the Act. and 6(f) has been designated FCSC AUTHORITY: Sec. 2, Pub. L. 896, 80th Cong., Form 289, ‘‘Application for Compensa- as amended (50 U.S.C. App. 2001). tion for Members of the Armed Forces SOURCE: 66 FR 49844, Oct. 1, 2001, unless of the United States Held as Prisoner otherwise noted. of War in Vietnam; for Persons As- signed to Duty on board the ‘U.S.S. § 505.1 Persons eligible to file claims. Pueblo’ Captured by Military Forces of Persons eligible to file claims with North Korea; for Civilian American the Commission under the provisions of Citizens Captured or Who Went into sections 5(i) and 6(f) of the War Claims Hiding to Avoid Capture or Internment Act of 1948, as amended, are: in Southeast Asia During the Vietnam (a) Civilian American citizens cap- Conflict and, in Case of Death of any tured and held in Southeast Asia or Such Person, for Their Survivors.’’ their eligible survivors, under the provisions of section 5(i) of the Act; and § 504.4 Place of filing claims. (b) Members of the Armed Forces of Claims must be mailed or delivered the United States held as prisoners of in person to the Foreign Claims Settle- war during the Vietnam conflict or ment Commission, 600 E Street, NW, their eligible survivors, under section Room 6002, Washington, DC 20579. 6(f) of the Act.

§ 504.5 Documents to accompany § 505.2 Persons under legal disability. forms. (a) Claims may be submitted on be- All claims filed pursuant to sections half of persons who, being otherwise el- 5(a) and 6(f) of the Act must be accom- igible to make claims under the provi- panied by evidentiary documents, in- sions of sections 5(i) and 6(f), are instruments, and records as outlined in competent or otherwise under any the instruction sheet attached to the legal disability, by the natural or legal claim form. guardian, committee, conservator, curator, or any other person, including § 504.6 Receipt of claims. the spouse of the claimant, whom the (a) Claims deemed received. A claim Commission determines is charged will be deemed to have been received with the care of the claimant. by the Commission on the date post- (b) Upon the death of any individual marked, if mailed, or if delivery is for whom an award has been made, the made in person, on the date of delivery Commission may consider the initial at the offices of the Commission in application filed by or in behalf of the Washington, DC. decedent as a formal claim for the pur- (b) Claims developed. In the event that pose of reissuing the award to the next a claim has been insufficiently pre- eligible survivor in the order of pref- pared so as to preclude processing erence as set forth under sections 5(i) thereof, the Commission may request and 6(d)(4) of the Act. the claimant to furnish whatever supplemental evidence, including the com- § 505.3 Definitions applicable under pletion and execution of an official the Act. claim form, as may be essential to the Child means: processing of the claim. In case the evi- (1) A natural or adopted son or dence or official claim form requested daughter of a deceased prisoner of war

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or a deceased civilian prisoner of war nunciation of parental duties and obli- or a deceased American citizen includ- gations by the other parent. ing any posthumous son or daughter of (2) The father of an illegitimate child such deceased person. will not be recognized as such for pur- (2) Any son or daughter of a deceased poses of the Act unless evidence estab- person born out of wedlock will be lishes that: deemed to be a child of the deceased for (i) He has legitimated the child by the purpose of this Act, if: subsequent marriage with the mother; (i) Legitimated by a subsequent mar- (ii) Recognized the child as his by riage of the parents, written admission prior to enlistment (ii) Recognized as a child of the de- of the deceased in the armed forces or ceased by his or her admission, or entry into an overseas duty status; or (iii) So declared by an order or decree (iii) Prior to death of the child he has of any court of competent jurisdiction. been declared by decree of a court of Husband means the surviving male competent jurisdiction to be the fa- spouse of a deceased prisoner of war or ther. of a deceased civilian American citizen Widow means the surviving female who was married to the deceased at the spouse of a deceased prisoner of war or time of her death by a marriage valid a deceased civilian American citizen under the applicable law of the place who was married to the deceased at the entered into. time of his death by marriage valid Natural guardian means father and under the applicable law of the place mother who shall be deemed to be the where entered into. natural guardians of the person of their minor children. If either dies or is in- PART 506—ELIGIBILITY REQUIRE- capable of action, the natural guard- MENTS FOR COMPENSATION ianship of the person shall devolve upon the other. In the event of death or Subpart A—Civilian American Citizens incapacity of both parents, then the Sec. blood relative, paternal or maternal, 506.1 ‘‘Civilian American citizen’’ defined. standing in loco parentis to the minor 506.2 Other definitions. shall be deemed the natural guardian. 506.3 Rate of benefits payable. Parent means: 506.4 Survivors entitled to award of deten- (1)(i) The natural or adoptive father tion benefits. or mother of a deceased prisoner of 506.5 Persons not eligible to award of civil- war, or any other individual standing ian detention benefits. in loco parentis to the deceased person Subpart B—Prisoners of War for a period of not less than 1 year immediately preceding the date of that 506.10 ‘‘Vietnam conflict’’ defined. person’s entry into active service and 506.11 ‘‘Prisoner of war’’ defined. during at least 1 year of the person’s 506.12 Membership in the Armed Forces of the United States; establishment of. minority. Not more than one mother or 506.13 ‘‘Armed Forces of the United States’’ one father as defined shall be recog- defined. nized in any case. An individual will 506.14 ‘‘Force hostile to the United States’’ not be recognized as standing in loco defined. parentis if the natural parents or adop- 506.15 Geneva Convention of August 12, 1949. tive parents are living, unless there is 506.16 Failure to meet the conditions and affirmative evidence of abandonment requirements prescribed under the Gene- va Convention of August 12, 1949. and renunciation of parental duties and 506.17 Rate of and basis for award of com- obligations by the natural or adoptive pensation. parent or parents prior to entry into 506.18 Entitlement of survivors to award in active service by the deceased prisoner case of death of prisoner of war. or war; 506.19 Members of the Armed Forces of the (ii) An award in the full amount al- United States precluded from receiving lowable had the deceased prisoner of award of compensation. war survived may be made to only one AUTHORITY: Sec. 2, Pub. L. 896, 80th Cong., parent when it is shown that the other as amended (50 U.S.C. App. 2001). parent has died or if there is affirma- SOURCE: 66 FR 49844, Oct. 1, 2001, unless tive evidence of abandonment and re- otherwise noted.

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Subpart A—Civilian American shall take account of fractional parts Citizens of a calendar month. § 506.1 ‘‘Civilian American citizen’’ de- § 506.4 Survivors entitled to award of fined. detention benefits. Civilian American citizen means any In case of death of a civilian Amer- person who, being then a citizen of the ican citizen who would have been enti- United States, was captured in South- tled to detention benefits under the east Asia during the Vietnam conflict War Claims Act of 1948, as amended, by any force hostile to the United benefits will be awarded, if claim is States, or who went into hiding in made, only to the following persons: Southeast Asia in order to avoid cap- (a) Widow or husband if there is no ture or internment by any such hostile child or children of the deceased; force. (b) Widow or dependent husband and child or children of the deceased, one- § 506.2 Other definitions. half to the widow or dependent hus- Calendar month means the period of band and the other half to the child or time between a designated day of any children in equal shares; given month and the date preceding a (c) The child or children of the de- similarly designated day of the fol- ceased in equal shares if there is no lowing month. widow or dependent husband, if other- Citizen of the United States means a wise qualified. person who under applicable law ac- § 506.5 Persons not eligible to award of quired citizenship of the United States civilian detention benefits. by birth, by naturalization, or by derivation. An individual is disqualified as a Dependent husband means the sur- ‘‘civilian American citizen’’ under the viving male spouse of a deceased civil- Act, and thus is precluded from receiv- ian American citizen who was married ing an award of detention benefits, if to the deceased at the time of her that person: death by a marriage valid under the ap- (a) Voluntarily, knowingly, and with- plicable law of the place where entered out duress, gave aid to or collaborated into. with or in any manner served the de- Force hostile to the United States taining hostile force; or means any organization or force in (b) While detained, was a regularly Southeast Asia, or any agent or em- appointed, enrolled, enlisted, or in- ployee thereof, engaged in any military ducted member of the Armed Forces of or civil activities designed to further the United States. the prosecution of its armed conflict against the Armed Forces of the United Subpart B—Prisoners of War States during the Vietnam conflict. Southeast Asia means, but is not nec- § 506.10 ‘‘Vietnam conflict’’ defined. essarily restricted to, the areas of Viet- Vietnam conflict refers to the period nam, Laos, and Cambodia. beginning February 28, 1961, and ending Went into hiding means the action on a date to be determined by Presi- taken by a civilian American citizen dential proclamation or concurrent when that person initiated a course of resolution of the Congress. (For pur- conduct consistent with an intention poses of determining eligibility for cer- to evade capture or detention by a hos- tain veterans’ benefits, the President tile force in Southeast Asia. has proclaimed the date of May 7, 1975, to be the ending date of the ‘‘Vietnam § 506.3 Rate of benefits payable. era’’ (Presidential Proclamation No. Detention benefits awarded to a civil- 4373, 38 U.S.C. 101 note). In addition, ian American citizen will be paid at the Congress has set May 7, 1975, as the rate of $150 for each calendar month of ending date of the ‘‘Vietnam conflict’’ internment or during the period in for purposes of payment of interest on which that civilian American citizen missing military service members’ de- went into hiding to avoid capture and posits in the United States Treasury internment by a hostile force. Awards under 10 U.S.C. 1035. However, neither

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the President nor the Congress has set Vietnam which acceded to it on June an ending date for the Vietnam conflict 28, 1957. for purposes of determining eligibility for compensation under 50 U.S.C. App. § 506.16 Failure to meet the conditions 2004 and 2005.) and requirements prescribed under the Geneva Convention of August § 506.11 ‘‘Prisoner of war’’ defined. 12, 1949. Prisoner of war means any regularly For the purpose of this part, obliga- appointed, enrolled, enlisted or in- tions under the Geneva Convention of ducted member of the Armed Forces of August 12, 1949, consist of the responsi- the United States who was held by any bility assumed by the contracting par- force hostile to the United States for ties thereto with respect to prisoners any period of time during the Vietnam of war within the meaning of the Con- conflict. vention, to comply with and to fully observe the provisions of the Conven- § 506.12 Membership in the Armed tion, and particularly those articles re- Forces of the United States; estab- lating to food rations of prisoners of lishment of. war, humane treatment, protection, Regular appointment, enrollment, and labor of prisoners of war, and the enlistment or induction in the Armed failure to abide by the conditions and Forces of the United States must be es- requirements established in such Con- tablished by certification obtained vention by any hostile force with from the Department of Defense. which the Armed Forces of the United States were engaged in armed conflict. § 506.13 ‘‘Armed Forces of the United States’’ defined. § 506.17 Rate of and basis for award of compensation. Armed Forces of the United States means the United States Air Force, (a) Compensation allowed a prisoner Army, Navy, Marine Corps and Coast of war during the Vietnam conflict Guard, and commissioned officers of under section 6(f)(2) of the War Claims the U.S. Public Health Service who Act of 1948, as amended, will be paid at were detailed for active duty with the the rate of $2 per day for each day on Armed Forces of the United States. which that person was held as prisoner of war and on which the hostile force, § 506.14 ‘‘Force hostile to the United or its agents, failed to furnish the States’’ defined. quantity and quality of food prescribed Force hostile to the United States for prisoners of war under the Geneva means any organization or force in Convention of August 12, 1949. Southeast Asia, or any agent or em- (b) Compensation allowed a prisoner ployee thereof, engaged in any military of war during the Vietnam conflict or civil activities designed to further under section 6(f)(3) of the Act, will be the prosecution of its armed conflict paid at the rate of $3 per day for each against the Armed Forces of the United day on which that person was held as a States during the Vietnam conflict. prisoner of war and on which the hostile force failed to meet the conditions § 506.15 Geneva Convention of August and requirements under the provisions 12, 1949. of the Geneva Convention of August 12, The Geneva Convention of August 12, 1949 relating to labor of prisoners of 1949, as identified in section 6(f) of the war or for inhumane treatment by the War Claims Act of 1948, as amended, is hostile force by which such person was the ‘‘Geneva Convention Relative to held. the Treatment of Prisoners of War of (c) Compensation under paragraphs August 12, 1949’’ which is included (a) and (b) of this section will be paid under the ‘‘Geneva Convention of Au- to the prisoner of war or qualified ap- gust 12, 1949, for the Protection of War plicant on a lump-sum basis at a total Victims,’’ entered into by the United rate of $5 per day for each day the pris- States and other governments, includ- oner of war was entitled to compensa- ing the former government in North tion.

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§ 506.18 Entitlement of survivors to Treasury for payment out of funds ap- award in case of death of prisoner propriated for this purpose, in favor of of war. the civilian internee or prisoner of war In case of death of a prisoner of war found entitled thereto. who would have been entitled to an (b) Awards made to survivors of de- award of compensation under section ceased civilian internees or prisoners 6(f) (2) and (3) of the War Claims Act of of war will be certified to the Secretary 1948, as amended, the compensation of the Treasury for payment to the in- will be awarded, if claim is made, only dividual member or members of the to the following persons: class or classes of survivors entitled to (a) Widow or husband if there is no receive compensation in the full child or children of the deceased; amount of the share to which each sur- (b) Widow or husband and child or vivor is entitled, and if applicable, children of the deceased, one-half to under the procedure set forth in § 507.3, the widow or husband and the other except that as to persons under legal half to the child or children of the de- disability, payment will be made as ceased in equal shares; specified in § 507.2. (c) Child or children of the deceased (in equal shares) if there is no widow or § 507.2 Payments to persons under husband; and legal disability. (d) Parents (in equal shares) if there Any awards or any part of an award is no widow, husband or child. payable under sections 5(i) and 6(f) of the Act to any person under legal dis- § 506.19 Members of the Armed Forces ability may, in the discretion of the of the United States precluded from Commission, be certified for payment receiving award of compensation. for the use of the claimant, to the nat- Any member of the Armed Forces of ural or legal guardian, committee, con- the United States, who at any time, servator or curator, or if there is no voluntarily, knowingly, and without natural or legal guardian, committee, duress gave aid to or collaborated with, conservator or curator, then, in the or in any manner served any force hos- discretion of the Commission, to any tile to the United States, is precluded person, including the spouse of such from receiving an award of compensa- person, or the Chief Officer of the hos- tion based on that member’s capture pital in which the claimant may be a and internment. patient, whom the Commission may determine is charged with the care of the PART 507—PAYMENT claimant. In the case of a minor, any part of the amount payable may, in the Sec. discretion of the Commission, be cer- 507.1 Payments under the War Claims Act tified for payment to that minor. of 1948, as amended by Pub. L. 91–289. 507.2 Payments to persons under legal dis- § 507.3 Reissuance of awards. ability. Upon the death of any claimant enti- 507.3 Reissuance of awards. tled to payment of an award, the Com- AUTHORITY: Sec. 2, Pub. L. 80–896, as mission will cause the award to be can- amended (50 U.S.C. App. 2001). celed and the amount of the award will SOURCE: 66 FR 49844, Oct. 1, 2001, unless be redistributed to the survivors of the otherwise noted. same class or to members of the next class of eligible survivors, if appro- § 507.1 Payments under the War priate, in the order of preference as set Claims Act of 1948, as amended by forth under the Act. Public Law 91–289. (a) Upon a determination by the PART 508—HEARINGS Commission as to the amount and validity of each claim filed pursuant to Sec. section 5(i) and 6(f) of the War Claims 508.1 Basis for hearing. Act of 1948, as amended, any award 508.2 Request for hearing. made thereunder will be certified by 508.3 Notification to claimant. the Commission to the Secretary of the 508.4 Failure to file request for hearing.

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508.5 Purpose of hearing. fered in evidence on claimant’s behalf 508.6 Resume of hearing, preparation of. or by counsel for the Commission des- 508.7 Action by the Commission. ignated by it to represent the public in- 508.8 Application of other regulations. terest opposed to the allowance of an AUTHORITY: Sec. 2, Pub. L. 896, 80th Cong., unjust or unfounded claim or portion as amended (50 U.S.C. App. 2001). thereof, and either may cross-examine SOURCE: 66 FR 49844, Oct. 1, 2001, unless as to evidence offered through wit- otherwise noted. nesses on behalf of the other. Objec- § 508.1 Basis for hearing. tions to the admission of any such evidence will be ruled upon by the pre- Any claimant whose application is siding officer. denied or is approved for less than the (b) Hearings may be stenographically full allowable amount of his or her claim will be entitled to a hearing be- recorded either at the request of the fore the Commission or its representa- claimant or at the discretion of the tive with respect to that claim. Hear- Commission. A claimant making such ings may also be held on the Commis- a request must notify the Commission sion’s own motion. at least 10 days prior to the hearing date. When a stenographic record of a § 508.2 Request for hearing. hearing is ordered at the claimant’s re- Within 30 days after the Commis- quest, the cost of such reporting and sion’s notice of denial of a claim, or ap- transcription may be charged to the proval for a lesser amount than claimant. claimed, has been posted by the Com- (c) Such hearings will be open to the mission, the claimant, if a hearing is public. desired, must notify the Commission in writing, and must set forth in full the § 508.6 Re´sume´ of hearing, preparation reasons for requesting the hearing, in- of. cluding any statement of law or facts Following each hearing, the hearing upon which the claimant relies. officer will prepare a re´sume´ of the hearing, specifying the issues on which § 508.3 Notification to claimant. the hearing was based, and including a Upon receipt of such a request, the list of documents and contents and Commission will schedule a hearing other items relative to the issues that and notify the claimant as to the date were introduced as evidence. A brief and place the hearing is to be held. No analysis of oral testimony will also be later than 10 days prior to the sched- prepared and included in the re´sume´ of uled hearing date, the claimant must each hearing not stenographically re- submit all documents, briefs, or other ported. additional evidence relevant to his or her appeal. § 508.7 Action by the Commission. § 508.4 Failure to file request for hear- After the conclusion of the hearing ing. and a review of the re´sume´, the Com- The failure to file a request for a mission may affirm, modify, or reverse hearing within the period specified in its former action with respect to the § 509.2 of this chapter will be deemed to claim, including a denial or reduction constitute a waiver of right to a hear- in the amount of the award theretofore ing and the decision of the Commission approved. All findings of the Commis- will constitute a full and final disposi- sion concerning the persons to whom tion of the case. compensation is payable, and the amounts thereof, are conclusive and § 508.5 Purpose of hearing. not reviewable by any court. (a) Hearings will be conducted by the Commission, its designee or designees. § 508.8 Application of other regula- Oral testimony and documentary evi- tions. dence, including depositions that may To the extent they are not incon- have been taken as provided by statute sistent with the regulations set forth and the rules of practice, may be of- under provisions of this subchapter,

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the other regulations of the Commis- sion will also be applicable to the claims filed hereunder.

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PART 509—FILING OF CLAIMS AND (c) Any initial written indication of PROCEDURES THEREFOR an intention to file a claim received within 30 days prior to the expiration Sec. of the filing period thereof will be con- 509.1 Time for filing. sidered as a timely filing of a claim if 509.2 Form, content and filing of claims. formalized within 30 days after the ex- 509.3 Exhibits and documents in support of piration of the filing period. claim. 509.4 Acknowledgment and numbering. § 509.3 Exhibits and documents in sup- 509.5 Procedure for determination of claims. port of claim. 509.6 Hearings. (a) Original documents. If available, 509.7 Presettlement conference. all exhibits and documents must be filed with and at the same time as the AUTHORITY: Sec. 3, Pub. L. 455, 81st Cong., as amended (22 U.S.C. 1622). claim, and must, wherever possible, be in the form of original documents, or SOURCE: 66 FR 49844, Oct. 1, 2001, unless copies or originals certified as such by otherwise noted. their public or other official custodian. (b) Documents in a foreign language. § 509.1 Time for filing. Each copy of a document, exhibit or Claims must be filed as specified by paper filed, which is written or printed the Commission by duly promulgated in a language other than English, must notice published in the FEDERAL REG- be accompanied by an English trans- ISTER, or as specified in legislation lation thereof duly verified under oath passed by Congress, as applicable. by its translator to be a true and accurate translation thereof, together with § 509.2 Form, content and filing of the name and address of the translator. claims. (c) Preparation of papers. All claims, (a) Unless otherwise specified by law, briefs, and memoranda filed shall be or by regulations published in the FED- typewritten or printed and, if type- ERAL REGISTER, claims must be filed on written, must be on business letter official forms, which will be provided (81⁄2″ × 11″) size paper. by the Commission upon request in writing addressed to the Commission § 509.4 Acknowledgment and num- at its office at 600 E Street, NW, Suite bering. 6002, Washington, DC 20579. Each form The Commission will acknowledge must include all of the information the receipt of a claim in writing and called for in it and must be completed will notify the claimant of the claim and signed in accordance with the in- number assigned to it, which number structions accompanying the form. must be used on all further correspond- (b) Notice to the Foreign Claims Set- ence and papers filed with regard to the tlement Commission, the Department claim. of State, or any other governmental office or agency of an intention to file a § 509.5 Procedure for determination of claim against a foreign government, claims. prior to the enactment of the statute (a) The Commission may on its own authorizing a claims program, prior to motion order a hearing upon any a referral of claims to the Commission claim, specifying the questions to by the Secretary for pre-adjudication, which the hearing shall be limited. or prior to the effective date of a lump- (b) Without previous hearing, the sum claims settlement agreement, will Commission or a designated member of not be considered as a timely filing of a the staff may issue a Proposed Decision claim under the statute, referral, or in determination of a claim. This Pro- agreement. posed Decision will set forth findings of

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fact and conclusions of law on the rel- delivery to the claimant or the claim- evant elements of the claim, to the ex- ant’s attorney without further order or tent that evidence and information rel- decision by the Commission. evant to such elements is before the (h) If an objection has in the mean- Commission. The claimant will have time been filed, but no hearing re- the burden of proof in submitting evi- quested, the Commission may, after dence and information sufficient to es- due consideration thereof: tablish the elements necessary for a de- (1) Issue a Final Decision affirming termination of the validity and amount or modifying its Proposed Decision, of his or her claim. (2) Issue an Amended Proposed Deci- (c) The Proposed Decision will be de- sion, or livered to the claimant or the claim- (3) On its own motion order hearing ant’s attorney of record in person or by thereon, indicating whether for the mail. Delivery by mail will be deemed taking of evidence on specified ques- completed 5 days after the mailing of tions or for the hearing of oral argu- the Proposed Decision addressed to the ments. last known address of the claimant or (i) After the conclusion of a hearing, the claimant’s attorney of record. A upon the expiration of any time al- copy of the Proposed Decision will be lowed by the Commission for further available for public inspection at the submissions, the Commission may pro- offices of the Commission, except in ceed to issue a Final Decision in deter- cases where public disclosure of the mination of the claim. names of claimants is barred by stat- (j)(1) In case an individual claimant ute. dies prior to the issuance of the Final (d) It will be the policy of the Com- Decision, that person’s legal represent- mission to post on a bulletin board and ative will be substituted as party on its World Wide Web site (http:// claimant. However, upon failure of a www.usdoj.gov/fcsc), any information of representative to qualify for substi- general interest to claimants before tution, the Commission may issue its the Commission. decision in the name of the estate of (e) When the Proposed Decision de- the deceased and, in case of an award, nies a claim in whole or in part, the certify the award in the same manner claimant may file notice of objection to the Secretary of the Treasury for to the denial within 15 days of delivery payment, if the payment of the award of the decision. If the claimant wishes is provided for by statute. to appear at an oral hearing before the (2) Notice of the Commission’s action Commission to present his or her objec- under this paragraph will be forwarded tion, the claimant must request the to the claimant’s attorney of record, or oral hearing at the time of submission if the claimant is not represented by an of his or her objection, stating the rea- attorney, the notice will be addressed sons for objection, and may request a to the estate of the claimant at the hearing on the claim, specifying wheth- last known place of residence. er for the taking of evidence or for oral (3) The term legal representative as ap- argument on the legal issues which are plied in this paragraph means, in gen- the subject of the objection. eral, the administrator or executor, (f) Copies of objections to or requests heir(s), next of kin, or descendant(s). for hearings on Proposed Decisions will (k) After the date of filing with the be available for public inspection at Commission no claim may be amended the Commission’s offices. to reflect the assignment thereof by (g) Upon the expiration of 30 days the claimant to any other person or en- after delivery to the claimant or claim- tity except as otherwise provided by ant’s attorney, if no objection under statute. this section has in the meantime been (l) At any time after a final Decision filed, a staff Proposed Decision, upon has been issued on a claim, or a Pro- approval by the Commission, will be- posed Decision has been entered as the come the Commission’s final deter- Final Decision on a claim, but not mination and decision on the claim. A later than 60 days before the comple- Proposed Decision issued by the Com- tion date of the Commission’s affairs in mission will become final 30 days after connection with the program under

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which such claim is filed, a petition to (e) Hearings may be stenographically reopen on the ground of newly discov- reported or electronically recorded, ei- ered evidence may be filed. No such pe- ther at the request of the claimant or tition will be entertained unless it ap- upon the discretion of the Commission. pears therein that the newly discovered A claimant making such a request evidence came to the knowledge of the must notify the Commission at least party filing the petition subsequent to ten (10) days prior to the hearing date. the date of issuance of the Final Deci- When a stenographic record or tran- sion or the date on which the Proposed script of a hearing is ordered at the Decision was entered as the Final Deci- claimant’s request, the cost of the re- sion; that it was not for want of due porting and transcription will be diligence that the evidence did not charged to the claimant. come sooner to the claimant’s knowl- (f) The following rules of procedure edge; and that the evidence is material, will apply in the conduct of hearings and not merely cumulative, and that held by the Commission for presen- reconsideration of the matter on the tation of objections to Proposed Deci- basis of that evidence would produce a sions: different decision. The petition must (1) Presentation of objections to Pro- include a statement of the facts which posed Decisions. (i) Objections should the petitioner expects to prove, the focus either on the presentation of new name and address of each witness, the evidence, or on the presentation of ar- identity of documents, and the reasons guments demonstrating that, in the for failure to make earlier submission claimant’s view, the Commission erred of the evidence. in considering the evidence previously submitted. Restatements of facts, evi- § 509.6 Hearings. dence or materials already established in the record should be avoided. (a) Hearings, whether upon the Com- (ii) The Chief Counsel of the Commis- mission’s own motion or upon request sion or designated staff attorney will of claimant, will be held upon not less first introduce the objecting claimant than fifteen days’ notice of the time and any witnesses to the Commission, and place thereof. and will then present a brief summary (b) The hearings will be open to the of the case, together with reasons sup- public unless otherwise requested by porting the decision as issued. claimant and ordered by the Commis- (iii) The objecting claimant and all sion, or when required by law. witnesses will be sworn. (c) The hearings will be conducted by (iv) The objecting claimant, or the the Commission, its designee or des- claimant’s attorney, will then present ignees. Oral testimony and documen- the claimant’s objections to the Com- tary evidence, including depositions mission, specifically setting forth the that may have been taken as provided basis for the claimant’s disagreement by statute and the rules of practices, with the Proposed Decision, and the may be offered in evidence on the reasons supporting the claimant’s con- claimant’s behalf or by counsel for the tention that a more favorable decision Commission designated by it to rep- should be rendered. Claimants will nor- resent the public interest opposed to mally be limited to fifteen (15) minutes the allowance of any unjust or un- for their presentation of objections, founded claim or portion thereof; and but may request additional time if either may cross-examine as to evi- needed. dence offered through witnesses on be- (v) Following presentation of the half of the other. Objections to the ad- claimant’s objection, the Chief Counsel mission of any such evidence will be or designated staff attorney will be al- ruled upon by the presiding officer. lotted an equivalent amount of time to (d) The hearings will be conducted as question the claimant and the claim- non-adversarial proceedings. However, ant’s witnesses with respect to the tes- the claimant will be the moving party, timony and other evidence presented in and will have the burden of proof on all support of the objection. issues involved in the determination of (vi) The objecting claimant or the his or her claim. claimant’s attorney, and the Chief

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Counsel or designated staff attorney, staff attorney, must be directed to the will then be allotted up to five (5) min- Commission. Verbal exchanges between utes each for follow-up or rebuttal. the objecting claimant or the claim- (vii) The Chair and Commissioners ant’s attorney, and the Chief Counsel may direct questions to the objecting or designated staff attorney, will be claimant and the claimant’s attorney, limited to questions and answers dur- and to the Chief Counsel or designated ing the questioning phase of the pro- staff attorney, at any time during the ceeding described in paragraph (f)(1)(v) proceedings described in the foregoing. of this section, unless otherwise nec- (viii) The foregoing provisions may essary for clarification or exchange of be modified at the discretion of the documents. Chair as circumstances may require. (ii) Professional conduct and cour- (ix) At the conclusion, the Chair will tesies of the kind normally accorded in inform the participants that the Com- appellate judicial proceedings must be mission will take the matter under ad- visement, and that a written Final De- observed in all appearances and pro- cision disposing of the objection will ceedings before the Commission. issue in due course. § 509.7 Presettlement conference. (2) Submission to Questioning/Conduct of Proceedings (i) Presentation of the The Commission on its own motion claimant’s objection by the objecting or initiative, or upon the application of claimant or the claimant’s attorney, a claimant for good cause shown, may and of follow-up and rebuttal by the direct that a presettlement conference claimant or the claimant’s attorney be held with respect to any issue in- and by the Chief Counsel or designated volved in a claim.

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PART 510—FILING OF CLAIMS AND § 510.2 Time for filing. PROCEDURES THEREFOR Claims for payments under the Guam World War II Loyalty Recognition Act, Sec. Title XVII, Public Law 114–328 (the 510.1 Definitions. 510.2 Time for filing. ‘‘Act’’), must be filed not later than 510.3 Applicability of administrative provi- one year after the date on which the sions concerning claims under the Inter- Commission publishes the notice de- national Claims Settlement Act of 1949. scribed in section 1705(b)(2)(B) of the AUTHORITY: Sec.1705(a)(2), Pub. L. 114–328, Act. 114th Cong., 130 Stat. 2644. § 510.3 Applicability of administrative SOURCE: 82 FR 16126, Apr. 3, 2017, unless otherwise noted. provisions concerning claims under the International Claims Settlement § 510.1 Definitions. Act of 1949. For purposes of this subchapter: To the extent they are not incon- Personal injury means a discernible sistent with the provisions of the Act, injury (such as disfigurement, scarring, the following provisions of subchapter or burns) that is more serious than a C of this chapter shall be applicable to superficial injury. claims under this subchapter: §§ 509.2, Severe personal injury means loss of a 509.3, 509.4, 509.5, and 509.6. limb, dismemberment, paralysis, or any injury of a similar type or that is PARTS 511–599 RESERVED comparable in severity. [ ]

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Part Page 600 [Reserved] 601 Classification and declassification of national security information ...... 41 604 New restrictions on lobbying ...... 43 605 Nondiscrimination on the basis of handicap in programs or activities receiving Federal financial assistance ...... 55 606 Enforcement of nondiscrimination on the basis of handicap in programs or activities conducted by the National Science Foundation ...... 71 607 Salary offset...... 77 608 Claims collection and administrative offset ...... 81 611 Nondiscrimination in federally-assisted programs of the National Science Foundation—effectuation of title VI of the Civil Rights Act of 1964 85 612 Availability of records and information ...... 95 613 Privacy Act regulations ...... 108 614 Government in the Sunshine Act regulations of the National Science Board ...... 112 615 Testimony and production of records ...... 115 617 Nondiscrimination on the basis of age in programs or activities receiving Federal financial assistance from NSF ...... 117 618 Nondiscrimination on the basis of sex in education programs or activities receiving Federal financial assistance ...... 121 630 Governmentwide requirements for drug-free workplace (financial assistance) ...... 138 640 Compliance with the National Environmental Pol- icy Act ...... 143 641 Environmental assessment procedures for proposed National Science Foundation actions in Antarc- tica ...... 147 650 Patents ...... 152

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Part Page 660 Intergovernmental review of the National Science Foundation programs and activities ...... 161 670 Conservation of Antarctic animals and plants ...... 164 671 Waste regulation...... 177 672 Enforcement and hearing procedures ...... 185 673 Antarctic non-governmental expeditions ...... 198 674 Antarctic meteorites...... 199 675 Medical clearance process for deployment to Ant- arctica ...... 201 680 National Science Foundation Rules of Practice ..... 202 681 Program Fraud Civil Remedies Act regulations ..... 205 689 Research misconduct...... 218 690 Protection of human subjects ...... 223 691–699 [Reserved]

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under section 552 of title 5 U.S.C. (Free- rect interests in the subject matter. In- dom of Information Act) when the pro- formation that continues to meet the posed denial is based on their contin- classification requirements prescribed ued classification under Executive by Section 1.3 despite the passage of Order 12958. time will continue to be protected in [47 FR 57284, Dec. 23, 1983, as amended at 61 accordance with Executive Order 12958. FR 51021, Sept. 30, 1996] (b) Foundation documents may be declassified or downgraded by the official § 601.5 Derivative classification. who authorized the original classifica- Distinct from ‘‘original’’ classification, if that official is still serving in tion is the determination that informa- the same position; the originator’s suc- tion is in substance the same as infor- cessor; a supervisory official of either; mation currently classified, because of or officials delegated such authority in incorporating, paraphrasing, restating writing by the Director. or generating in new form information (c) The Director shall conduct inter- that is already classified, and marking nal systematic review programs for the newly developed material con- classified information originated by sistent with the marking of the source the Foundation contained in records information. Persons who only repro- determined by the Archivist to be per- duce, extract, or summarize classified manently valuable but that have not information, or who only apply classi- been accessioned into the National Ar- fication markings derived from source chives of the United States. material or as directed by a classifica- (d) The Archivist of the United tion guide, need not possess original States shall, in accordance with proce- classification authority. dures and timeframes prescribed in the (a) If a person who applies derivative Information Security Oversight Of- classification markings believes that fice’s directives implementing Execu- the paraphrasing, restating, or summa- tive Order 12958, systematically review rizing of classified information has for declassification or downgrading, changed the level of or removed the classified records accessioned into the basis for classification, that person National Archives of the United States. must consult for a determination an Such information shall be reviewed by appropriate official of the originating the Archivist for declassification or agency or office of origin who has the downgrading in accordance with sys- authority to upgrade, downgrade, or tematic review guidelines that shall be declassify the information. provided by the head of the agency (b) The person who applies derivative that originated the information, or in classification markings shall observe the case of foreign government infor- and respect original classification deci- mation, by the Director of Information sions; and carry forward to any newly Security Oversight Office in consulta- created documents any assigned au- tion with interested agency heads. thorized markings. The declassification date or event that provides the [47 FR 57284, Dec. 23, 1983, as amended at 61 longest period of classification shall be FR 51021, Sept. 30, 1996] used for documents classified on the basis of multiple sources. § 601.7 Mandatory declassification review. § 601.6 Downgrading and declassifica- (a) The Division of Administrative tion. Services is hereby designated as the of- Executive Order 12958 prescribes a fice to which members of the public or uniform system for classifying, declas- Departments may direct requests for sifying, and safeguarding national se- mandatory review for declassification curity information. under this provision. In the case of doc- (a) Information shall be declassified uments originally classified by the or downgraded as soon as national se- Foundation, this office shall, in turn, curity considerations permit. The Na- assign the request to the appropriate tional Science Foundation shall coordi- office for action within 60 days. In each nate their review of classified informa- instance, receipt of the request will be tion with other agencies that have a di- acknowledged in writing immediately

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by the office that has been assigned ac- § 601.9 Access by historical research- tion. A request for classification review ers and former Presidential ap- must reasonably describe the docu- pointees. ment. The requirement in § 601.8 that access (b) Whenever a request is deficient in to classified information may be grant- its description of the record sought, ed only as is essential to the accom- the requester should be asked to pro- plishment of lawful and authorized vide additional identifying information Government purposes may be waived to the extent possible. Whenever a refor persons who are engaged in histor- quest does not reasonably describe the ical research projects, or previously information sought, the requester shall have occupied policymaking positions be notified that unless additional infor- to which they were appointed by the mation is provided or the scope of the President, provided they execute writ- request is narrowed, no further action ten agreements to safeguard the infor- will be undertaken. Upon a determina- mation and written consent to the tion that the requested material no Foundation’s review of their notes and longer warrants classification, it shall manuscripts solely for the purpose of be declassified and made promptly determining that no classified informa- available to the requester, if not other- tion is disclosed. A precondition to any wise exempt from disclosure under 5 such access is the favorable completion U.S.C. 552(b) (Freedom of Information of an appropriate investigative inquiry. Act) or other provision of law. If the information may not be released in whole or in part the requester shall be PART 604—NEW RESTRICTIONS ON given a brief statement as to the rea- LOBBYING sons for denial, a notice of the right to appeal the determination of the Classi- Subpart A—General fication Review Committee, and a no- Sec. tice that such an appeal must be filed 604.100 Conditions on use of funds. with the Foundation within 60 days in 604.105 Definitions. order to be considered. 604.110 Certification and disclosure. (c) When the request relates to a document given derivative classification Subpart B—Activities by Own Employees by the Foundation or originated by an- 604.200 Agency and legislative liaison. other agency, the request and the docu- 604.205 Professional and technical services. ment will be forwarded to the origi- 604.210 Reporting. nator of the source document, and the requestor notified of such referral. Subpart C—Activities by Other Than Own (d) Employees presently cleared for Employees access to classified information are en- 604.300 Professional and technical services. couraged to challenge classification in cases where there is reasonable cause Subpart D—Penalties and Enforcement to believe that information is classified unnecessarily, improperly, or for an in- 604.400 Penalties. appropriate period of time. Such chal- 604.405 Penalty procedures. 604.410 Enforcement. lenges should be brought to the attention of the Security Officer (Informa- Subpart E—Exemptions tion) who will act thereon within 30 days, informing the challenger of ac- 604.500 Secretary of Defense. tions taken. Requests for confidentiality will be honored. Subpart F—Agency Reports 604.600 Semi-annual compilation. § 601.8 Access to classified materials. 604.605 Inspector General report. No person may be given access to APPENDIX A TO PART 604—CERTIFICATION RE- classified information unless that per- GARDING LOBBYING son has been determined to be trust- APPENDIX B TO PART 604—DISCLOSURE FORM worthy and unless access is essential to TO REPORT LOBBYING the accomplishment of lawful and au- AUTHORITY: Sec. 319, Pub. L. 101–121 (31 thorized Government purposes. U.S.C. 1352); 42 U.S.C. 1870.

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SOURCE: 55 FR 6737, 6754, Feb. 26, 1990, un- nection with that loan insurance or less otherwise noted. guarantee. CROSS REFERENCE: See also Office of Man- (e) Each person who requests or re- agement and Budget notice published at 54 ceives from an agency a commitment FR 52306, December 20, 1989. providing for the United States to insure or guarantee a loan shall file with Subpart A—General that agency a disclosure form, set forth in appendix B, if that person has made § 604.100 Conditions on use of funds. or has agreed to make any payment to (a) No appropriated funds may be ex- influence or attempt to influence an of- pended by the recipient of a Federal ficer or employee of any agency, a contract, grant, loan, or cooperative Member of Congress, an officer or em- ageement to pay any person for influ- ployee of Congress, or an employee of a encing or attempting to influence an Member of Congress in connection with officer or employee of any agency, a that loan insurance or guarantee. Member of Congress, an officer or employee of Congress, or an employee of a § 604.105 Definitions. Member of Congress in connection with For purposes of this part: any of the following covered Federal (a) Agency, as defined in 5 U.S.C. actions: the awarding of any Federal contract, the making of any Federal 552(f), includes Federal executive de- grant, the making of any Federal loan, partments and agencies as well as inde- the entering into of any cooperative pendent regulatory commissions and agreement, and the extension, continu- Government corporations, as defined in ation, renewal, amendment, or modi- 31 U.S.C. 9101(1). fication of any Federal contract, grant, (b) Covered Federal action means any loan, or cooperative agreement. of the following Federal actions: (b) Each person who requests or re- (1) The awarding of any Federal con- ceives from an agency a Federal contract; tract, grant, loan, or cooperative (2) The making of any Federal grant; agreement shall file with that agency a (3) The making of any Federal loan; certification, set forth in appendix A, (4) The entering into of any coopera- that the person has not made, and will tive agreement; and, not make, any payment prohibited by (5) The extension, continuation, re- paragraph (a) of this section. newal, amendment, or modification of (c) Each person who requests or re- any Federal contract, grant, loan, or ceives from an agency a Federal con- cooperative agreement. tract, grant, loan, or a cooperative agreement shall file with that agency a Covered Federal action does not in- disclosure form, set forth in appendix clude receiving from an agency a com- B, if such person has made or has mitment providing for the United agreed to make any payment using States to insure or guarantee a loan. nonappropriated funds (to include prof- Loan guarantees and loan insurance its from any covered Federal action), are addressed independently within which would be prohibited under para- this part. graph (a) of this section if paid for with (c) Federal contract means an acquisi- appropriated funds. tion contract awarded by an agency, (d) Each person who requests or re- including those subject to the Federal ceives from an agency a commitment Acquisition Regulation (FAR), and any providing for the United States to in- other acquisition contract for real or sure or guarantee a loan shall file with personal property or services not sub- that agency a statement, set forth in ject to the FAR. appendix A, whether that person has (d) Federal cooperative agreement made or has agreed to make any pay- means a cooperative agreement en- ment to influence or attempt to influ- tered into by an agency. ence an officer or employee of any (e) Federal grant means an award of agency, a Member of Congress, an offi- financial assistance in the form of cer or employee of Congress, or an em- money, or property in lieu of money, ployee of a Member of Congress in con- by the Federal Government or a direct

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appropriation made by law to any per- (l) Person means an individual, cor- son. The term does not include tech- poration, company, association, au- nical assistance which provides serv- thority, firm, partnership, society, ices instead of money, or other assist- State, and local government, regard- ance in the form of revenue sharing, less of whether such entity is operated loans, loan guarantees, loan insurance, for profit or not for profit. This term interest subsidies, insurance, or direct excludes an Indian tribe, tribal organi- United States cash assistance to an in- zation, or any other Indian organiza- dividual. tion with respect to expenditures spe- (f) Federal loan means a loan made by cifically permitted by other Federal an agency. The term does not include law. loan guarantee or loan insurance. (m) Reasonable compensation means, (g) Indian tribe and tribal organization with respect to a regularly employed have the meaning provided in section 4 officer or employee of any person, com- of the Indian Self-Determination and pensation that is consistent with the Education Assistance Act (25 U.S.C. normal compensation for such officer 450B). Alaskan Natives are included or employee for work that is not fur- under the definitions of Indian tribes in nished to, not funded by, or not fur- that Act. nished in cooperation with the Federal (h) Influencing or attempting to influ- Government. ence means making, with the intent to (n) Reasonable payment means, with influence, any communication to or ap- respect to perfessional and other tech- pearance before an officer or employee nical services, a payment in an amount or any agency, a Member of Congress, that is consistent with the amount nor- an officer or employee of Congress, or mally paid for such services in the pri- an employee of a Member of Congress vate sector. in connection with any covered Federal action. (o) Recipient includes all contractors, (i) Loan guarantee and loan insurance subcontractors at any tier, and sub- means an agency’s guarantee or insur- grantees at any tier of the recipient of ance of a loan made by a person. funds received in connection with a (j) Local government means a unit of Federal contract, grant, loan, or coop- government in a State and, if char- erative agreement. The term excludes tered, established, or otherwise recog- an Indian tribe, tribal organization, or nized by a State for the performance of any other Indian organization with re- a governmental duty, including a local spect to expenditures specifically per- public authority, a special district, an mitted by other Federal law. intrastate district, a council of govern- (p) Regularly employed means, with ments, a sponsor group representative respect to an officer or employee of a organization, and any other instrumen- person requesting or receiving a Fed- tality of a local government. eral contract, grant, loan, or coopera- (k) Officer or employee of an agency in- tive agreement or a commitment pro- cludes the following individuals who viding for the United States to insure are employed by an agency: or guarantee a loan, an officer or em- (1) An individual who is appointed to ployee who is employed by such person a position in the Government under for at least 130 working days within title 5, U.S. Code, including a position one year immediately preceding the under a temporary appointment; date of the submission that initiates (2) A member of the uniformed serv- agency consideration of such person for ices as defined in section 101(3), title 37, receipt of such contract, grant, loan, U.S. Code; cooperative agreement, loan insurance (3) A special Government employee commitment, or loan guarantee com- as defined in section 202, title 18, U.S. mitment. An officer or employee who is Code; and, employed by such person for less than (4) An individual who is a member of 130 working days within one year im- a Federal advisory committee, as de- mediately preceding the date of the fined by the Federal Advisory Com- submission that initiates agency con- mittee Act, title 5, U.S. Code appendix sideration of such person shall be con- 2. sidered to be regularly employed as

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soon as he or she is employed by such influence or attempt to influence a person for 130 working days. covered Federal action. (q) State means a State of the United (d) Any person who requests or re- States, the District of Columbia, the ceives from a person referred to in Commonwealth of Puerto Rico, a terri- paragraph (a) or (b) of this section: tory or possession of the United States, (1) A subcontract exceeding $100,000 an agency or instrumentality of a at any tier under a Federal contract; State, and a multi-State, regional, or (2) A subgrant, contract, or sub- interstate entity having governmental contract exceeding $100,000 at any tier duties and powers. under a Federal grant; § 604.110 Certification and disclosure. (3) A contract or subcontract exceeding $100,000 at any tier under a Federal (a) Each person shall file a certifi- loan exceeding $150,000; or, cation, and a disclosure form, if re- (4) A contract or subcontract exceed- quired, with each submission that ini- ing $100,000 at any tier under a Federal tiates agency consideration of such cooperative agreement, person for: (1) Award of a Federal contract, shall file a certification, and a disclo- grant, or cooperative agreement ex- sure form, if required, to the next tier ceeding $100,000; or above. (2) An award of a Federal loan or a (e) All disclosure forms, but not cer- commitment providing for the United tifications, shall be forwarded from States to insure or guarantee a loan tier to tier until received by the person exceeding $150,000. referred to in paragraph (a) or (b) of (b) Each person shall file a certifi- this section. That person shall forward cation, and a disclosure form, if re- all disclosure forms to the agency. quired, upon receipt by such person of: (f) Any certification or disclosure (1) A Federal contract, grant, or co- form filed under paragraph (e) of this operative agreement exceeding $100,000; section shall be treated as a material or representation of fact upon which all (2) A Federal loan or a commitment receiving tiers shall rely. All liability providing for the United States to in- arising from an erroneous representa- sure or guarantee a loan exceeding tion shall be borne solely by the tier $150,000, filing that representation and shall not unless such person previously filed a be shared by any tier to which the er- certification, and a disclosure form, if roneous representation is forwarded. required, under paragraph (a) of this Submitting an erroneous certification section. or disclosure constitutes a failure to (c) Each person shall file a disclosure file the required certification or disclo- form at the end of each calendar quar- sure, respectively. If a person fails to ter in which there occurs any event file a required certification or disclo- that requires disclosure or that materi- sure, the United States may pursue all ally affects the accuracy of the infor- available remedies, including those au- mation contained in any disclosure thorized by section 1352, title 31, U.S. form previously filed by such person Code. under paragraph (a) or (b) of this sec- (g) For awards and commitments in tion. An event that materially affects process prior to December 23, 1989, but the accuracy of the information re- not made before that date, certifi- ported includes: cations shall be required at award or (1) A cumulative increase of $25,000 or commitment, covering activities oc- more in the amount paid or expected to curring between December 23, 1989, and be paid for influencing or attempting the date of award or commitment. to influence a covered Federal action; However, for awards and commitments or in process prior to the December 23, (2) A change in the person(s) or indi- 1989 effective date of these provisions, vidual(s) influencing or attempting to but not made before December 23, 1989, influence a covered Federal action; or, disclosure forms shall not be required (3) A change in the officer(s), em- at time of award or commitment but ployee(s), or Member(s) contacted to shall be filed within 30 days.

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(h) No reporting is required for an ac- Law 95–507 and other subsequent tivity paid for with appropriated funds amendments. if that activity is allowable under ei- (e) Only those activities expressly au- ther subpart B or C. thorized by this section are allowable under this section. Subpart B—Activities by Own Employees § 604.205 Professional and technical services. § 604.200 Agency and legislative liai- (a) The prohibition on the use of ap- son. propriated funds, in § 604.100 (a), does (a) The prohibition on the use of ap- not apply in the case of a payment of propriated funds, in § 604.100 (a), does reasonable compensation made to an not apply in the case of a payment of officer or employee of a person request- reasonable compensation made to an ing or receiving a Federal contract, officer or employee of a person request- grant, loan, or cooperative agreement ing or receiving a Federal contract, or an extension, continuation, renewal, grant, loan, or cooperative agreement amendment, or modification of a Fed- if the payment is for agency and legis- eral contract, grant, loan, or coopera- lative liaison activities not directly re- tive agreement if payment is for pro- lated to a covered Federal action. fessional or technical services rendered (b) For purposes of paragraph (a) of directly in the preparation, submis- this section, providing any information sion, or negotiation of any bid, pro- specifically requested by an agency or posal, or application for that Federal Congress is allowable at any time. contract, grant, loan, or cooperative (c) For purposes of paragraph (a) of agreement or for meeting requirements this section, the following agency and imposed by or pursuant to law as a legislative liaison activities are allow- condition for receiving that Federal able at any time only where they are contract, grant, loan, or cooperative not related to a specific solicitation for agreement. any covered Federal action: (1) Discussing with an agency (in- (b) For purposes of paragraph (a) of cluding individual demonstrations) the this section, ‘‘professional and tech- qualities and characteristics of the per- nical services’’ shall be limited to ad- son’s products or services, conditions vice and analysis directly applying any or terms of sale, and service capabili- professional or technical discipline. ties; and, For example, drafting of a legal docu- (2) Technical discussions and other ment accompanying a bid or proposal activities regarding the application or by a lawyer is allowable. Similarly, adaptation of the person’s products or technical advice provided by an engi- services for an agency’s use. neer on the performance or operational (d) For purposes of paragraph (a) of capability of a piece of equipment ren- this section, the following agencies and dered directly in the negotiation of a legislative liaison activities are allow- contract is allowable. However, com- able only where they are prior to for- munications with the intent to influ- mal solicitation of any covered Federal ence made by a professional (such as a action: licensed lawyer) or a technical person (1) Providing any information not (such as a licensed accountant) are not specifically requested but necessary for allowable under this section unless an agency to make an informed deci- they provide advice and analysis di- sion about initiation of a covered Fed- rectly applying their professional or eral action; technical expertise and unless the ad- (2) Technical discussions regarding vice or analysis is rendered directly the preparation of an unsolicited pro- and solely in the preparation, submis- posal prior to its official submission; sion or negotiation of a covered Fed- and, eral action. Thus, for example, commu- (3) Capability presentations by per- nications with the intent to influence sons seeking awards from an agency made by a lawyer that do not provide pursuant to the provisions of the Small legal advice or analysis directly and Business Act, as amended by Public solely related to the legal aspects of

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his or her client’s proposal, but gen- dered directly in the preparation, sub- erally advocate one proposal over an- mission, or negotiation of any commit- other are not allowable under this sec- ment providing for the United States tion because the lawyer is not pro- to insure or guarantee a loan. viding professional legal services. (c) For purposes of paragraph (a) of Similarly, communications with the this section, ‘‘professional and tech- intent to influence made by an engi- nical services’’ shall be limited to ad- neer providing an engineering analysis vice and analysis directly applying any prior to the preparation or submission professional or technical discipline. of a bid or proposal are not allowable For example, drafting or a legal docu- under this section since the engineer is providing technical services but not di- ment accompanying a bid or proposal rectly in the preparation, submission by a lawyer is allowable. Similarly, or negotiation of a covered Federal ac- technical advice provided by an engi- tion. neer on the performance or operational (c) Requirements imposed by or pur- capability of a piece of equipment ren- suant to law as a condition for receiv- dered directly in the negotiation of a ing a covered Federal award include contract is allowable. However, com- those required by law or regulation, or munications with the intent to influ- reasonably expected to be required by ence made by a professional (such as a law or regulation, and any other re- licensed lawyer) or a technical person quirements in the actual award docu- (such as a licensed accountant) are not ments. allowable under this section unless (d) Only those services expressly au- they provide advice and analysis di- thorized by this section are allowable rectly applying their professional or under this section. technical expertise and unless the ad- § 604.210 Reporting. vice or analysis is rendered directly and solely in the preparation, submis- No reporting is required with respect sion or negotiation of a covered Fed- to payments of reasonable compensa- eral action. Thus, for example, commu- tion made to regularly employed officers or employees of a person. nications with the intent to influence made by a lawyer that do not provide legal advice or analysis directly and Subpart C—Activities by Other solely related to the legal aspects of Than Own Employees his or her client’s proposal, but gen- § 604.300 Professional and technical erally advocate one proposal over an- services. other are not allowable under this sec- (a) The prohibition on the use of ap- tion because the lawyer is not pro- propriated funds, in § 604.100 (a), does viding professional legal services. not apply in the case of any reasonable Similarly, communications with the payment to a person, other than an of- intent to influence made by an engi- ficer or employee of a person request- neer providing an engineering analysis ing or receiving a covered Federal ac- prior to the preparation or submission tion, if the payment is for professional of a bid or proposal are not allowable or technical services rendered directly under this section since the engineer is in the preparation, submission, or ne- providing technical services but not di- gotiation of any bid, proposal, or appli- rectly in the preparation, submission cation for that Federal contract, grant, or negotiation of a covered Federal ac- loan, or cooperative agreement or for tion. meeting requirements imposed by or (d) Requirements imposed by or pur- pursuant to law as a condition for re- suant to law as a condition for receiv- ceiving that Federal contract, grant, ing a covered Federal award include loan, or cooperative agreement. those required by law or regulation, or (b) The reporting requirements in reasonably expected to be required by § 604.110 (a) and (b) regarding filing a law or regulation, and any other re- disclosure form by each person, if requirements in the actual award docu- quired, shall not apply with respect to ments. professional or technical services ren-

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(e) Persons other than officers or em- United States from seeking any other ployees of a person requesting or re- remedy that may apply to the same ceiving a covered Federal action in- conduct that is the basis for the impo- clude consultants and trade associa- sition of such civil penalty. tions. (f) Only those services expressly au- § 604.405 Penalty procedures. thorized by this section are allowable Agencies shall impose and collect under this section. civil penalties pursuant to the provisions of the Program Fraud and Civil Subpart D—Penalties and Remedies Act, 31 U.S.C. sections 3803 Enforcement (except subsection (c)), 3804, 3805, 3806, 3807, 3808, and 3812, insofar as these pro- § 604.400 Penalties. visions are not inconsistent with the (a) Any person who makes an expend- requirements herein. iture prohibited herein shall be subject to a civil penalty of not less than § 604.410 Enforcement. $10,000 and not more than $100,000 for The head of each agency shall take each such expenditure. such actions as are necessary to ensure (b) Any person who fails to file or that the provisions herein are vigor- amend the disclosure form (see appen- ously implemented and enforced in dix B) to be filed or amended if re- that agency. quired herein, shall be subject to a civil penalty of not less than $10,000 and not Subpart E—Exemptions more than $100,000 for each such failure. § 604.500 Secretary of Defense. (c) A filing or amended filing on or (a) The Secretary of Defense may ex- after the date on which an administra- empt, on a case-by-case basis, a cov- tive action for the imposition of a civil ered Federal action from the prohibi- penalty is commenced does not prevent the imposition of such civil penalty for tion whenever the Secretary deter- a failure occurring before that date. An mines, in writing, that such an exemp- administrative action is commenced tion is in the national interest. The with respect to a failure when an inves- Secretary shall transmit a copy of each tigating official determines in writing such written exemption to Congress to commence an investigation of an al- immediately after making such a delegation of such failure. termination. (d) In determining whether to impose (b) The Department of Defense may a civil penalty, and the amount of any issue supplemental regulations to im- such penalty, by reason of a violation plement paragraph (a) of this section. by any person, the agency shall consider the nature, circumstances, ex- Subpart F—Agency Reports tent, and gravity of the violation, the effect on the ability of such person to § 604.600 Semi-annual compilation. continue in business, any prior viola- (a) The head of each agency shall col- tions by such person, the degree of cul- lect and compile the disclosure reports pability of such person, the ability of (see appendix B) and, on May 31 and the person to pay the penalty, and such November 30 of each year, submit to other matters as may be appropriate. the Secretary of the Senate and the (e) First offenders under paragraphs Clerk of the House of Representatives a (a) or (b) of this section shall be subject report containing a compilation of the to a civil penalty of $10,000, absent ag- information contained in the disclo- gravating circumstances. Second and sure reports received during the six- subsequent offenses by persons shall be month period ending on March 31 or subject to an appropriate civil penalty September 30, respectively, of that between $10,000 and $100,000, as deter- year. mined by the agency head or his or her (b) The report, including the com- designee. pilation, shall be available for public (f) An imposition of a civil penalty inspection 30 days after receipt of the under this section does not prevent the report by the Secretary and the Clerk.

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(c) Information that involves intel- President’s Budget in 1991, an evalua- ligence matters shall be reported only tion of the compliance of that agency to the Select Committee on Intel- with, and the effectiveness of, the re- ligence of the Senate, the Permanent quirements herein. The evaluation may Select Committee on Intelligence of include any recommended changes that the House of Representatives, and the may be necessary to strengthen or im- Committees on Appropriations of the prove the requirements. Senate and the House of Representa- (b) In the case of an agency that does tives in accordance with procedures not have an Inspector General, the agreed to by such committees. Such in- agency official comparable to an In- formation shall not be available for spector General shall prepare and sub- public inspection. mit the annual report, or, if there is no (d) Information that is classified such comparable official, the head of under Executive Order 12356 or any suc- the agency shall prepare and submit cessor order shall be reported only to the annual report. the Committee on Foreign Relations of (c) The annual report shall be sub- the Senate and the Committee on For- mitted at the same time the agency eign Affairs of the House of Represent- submits its annual budget justifica- atives or the Committees on Armed tions to Congress. Services of the Senate and the House of (d) The annual report shall include Representatives (whichever such com- the following: All alleged violations re- mittees have jurisdiction of matters lating to the agency’s covered Federal involving such information) and to the actions during the year covered by the Committees on Appropriations of the report, the actions taken by the head Senate and the House of Representa- of the agency in the year covered by tives in accordance with procedures the report with respect to those alleged agreed to by such committees. Such in- violations and alleged violations in formation shall not be available for previous years, and the amounts of public inspection. civil penalties imposed by the agency (e) The first semi-annual compilation in the year covered by the report. shall be submitted on May 31, 1990, and shall contain a compilation of the dis- APPENDIX A TO PART 604— closure reports received from Decem- CERTIFICATION REGARDING LOBBYING ber 23, 1989 to March 31, 1990. (f) Major agencies, designated by the Certification for Contracts, Grants, Loans, and Cooperative Agreements Office of Management and Budget (OMB), are required to provide ma- The undersigned certifies, to the best of his chine-readable compilations to the or her knowledge and belief, that: Secretary of the Senate and the Clerk (1) No Federal appropriated funds have been paid or will be paid, by or on behalf of of the House of Representatives no the undersigned, to any person for influ- later than with the compilations due encing or attempting to influence an officer on May 31, 1991. OMB shall provide de- or employee of an agency, a Member of Con- tailed specifications in a memorandum gress, an officer or employee of Congress, or to these agencies. an employee of a Member of Congress in con- (g) Non-major agencies are requested nection with the awarding of any Federal to provide machine-readable compila- contract, the making of any Federal grant, tions to the Secretary of the Senate the making of any Federal loan, the entering into of any cooperative agreement, and the and the Clerk of the House of Rep- extension, continuation, renewal, amend- resentatives. ment, or modification of any Federal con- (h) Agencies shall keep the originals tract, grant, loan, or cooperative agreement. of all disclosure reports in the official (2) If any funds other than Federal appro- files of the agency. priated funds have been paid or will be paid to any person for influencing or attempting § 604.605 Inspector General report. to influence an officer or employee of any (a) The Inspector General, or other agency, a Member of Congress, an officer or employee of Congress, or an employee of a official as specified in paragraph (b) of Member of Congress in connection with this this section, of each agency shall pre- Federal contract, grant, loan, or cooperative pare and submit to Congress each year, agreement, the undersigned shall complete commencing with submission of the and submit Standard Form-LLL, ‘‘Disclosure

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Form to Report Lobbying,’’ in accordance Statement for Loan Guarantees and Loan with its instructions. Insurance (3) The undersigned shall require that the The undersigned states, to the best of his language of this certification be included in or her knowledge and belief, that: the award documents for all subawards at all If any funds have been paid or will be paid tiers (including subcontracts, subgrants, and to any person for influencing or attempting contracts under grants, loans, and coopera- to influence an officer or employee of any tive agreements) and that all subrecipients agency, a Member of Congress, an officer or shall certify and disclose accordingly. employee of Congress, or an employee of a This certification is a material representa- Member of Congress in connection with this tion of fact upon which reliance was placed commitment providing for the United States when this transaction was made or entered to insure or guarantee a loan, the under- into. Submission of this certification is a signed shall complete and submit Standard prerequisite for making or entering into this Form-LLL, ‘‘Disclosure Form to Report Lob- transaction imposed by section 1352, title 31, bying,’’ in accordance with its instructions. U.S. Code. Any person who fails to file the Submission of this statement is a pre- required certification shall be subject to a requisite for making or entering into this civil penalty of not less than $10,000 and not transaction imposed by section 1352, title 31, U.S. Code. Any person who fails to file the more than $100,000 for each such failure. required statement shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure.

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APPENDIX B TO PART 604—DISCLOSURE FORM TO REPORT LOBBYING

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PART 605—NONDISCRIMINATION Subpart F—Health, Welfare, and Social ON THE BASIS OF HANDICAP IN Services PROGRAMS OR ACTIVITIES RE- 605.51 Application of this subpart. CEIVING FEDERAL FINANCIAL 605.52 Health, welfare, and other social serv- ASSISTANCE ices. 605.53 Drug and alcohol addicts. Subpart A—General Provisions 605.54 Education of institutionalized persons. Sec. 605.55–605.60 [Reserved] 605.0 Adoption of HHS regulations. 605.1 Purpose. Subpart G—Procedures 605.2 Application. 605.3 Definitions. 605.61 Procedures. 605.4 Discrimination prohibited. 605.62–605.90 [Reserved] 605.5 Assurances required. AUTHORITY: 29 U.S.C. 794. 605.6 Remedial action, voluntary action, and self-evaluation. SOURCE: 47 FR 8573, Mar. 1, 1982, unless oth- 605.7 Designation of responsible employee erwise noted. and adoption of grievance procedures. 605.8 Notice. Subpart A—General Provisions 605.9 Administrative requirements for small recipients. § 605.0 Adoption of HHS regulations. 605.10 Effect of state or local law or other requirements and effect of employment The regulations of the Department of opportunities. Health and Human Services on Non- discrimination on the Basis of Handi- Subpart B—Employment Practices cap, 45 CFR part 84, including any 605.11 Discrimination prohibited. amendments thereto, have been adopt- 605.12 Reasonable accommodation. ed almost in their entirety to programs 605.13 Employment criteria. or activities receiving Federal finan- 605.14 Preemployment inquiries. cial assistance from the National 605.15–605.20 [Reserved] Science Foundation. The few changes in the Foundation’s rules include a Subpart C—Accessibility newly added sub-paragraph (5) to para- 605.21 Discrimination prohibited. graph (k) of § 605.3; and modifications 605.22 Existing facilities. in paragraph (j), § 605.3; paragraph (a) of 605.23 New construction. § 605.5; paragraph (b) of § 605.46; and 605.24–605.30 [Reserved] § 605.61. Paragraph (c) of § 605.5 has been removed, and ‘‘qualified handicapped Subpart D—Preschool, Elementary, and persons’’ has been substituted for Secondary Education ‘‘handicapped persons’’ wherever that 605.31 Application of this subpart. phrase appears in § 605.4(b)(5) and in 605.32 Location and notification. subpart C (§§ 605.21 through 605.23). The 605.33 Free appropriate public education. date for compliance with § 605.33(d) has 605.34 Educational setting. been changed. 605.35 Evaluation and placement. 605.36 Procedural safeguards. [47 FR 8573, Mar. 1, 1982, as amended at 61 FR 605.37 Nonacademic services. 51021, Sept. 30, 1996; 68 FR 51381, Aug. 26, 2003] 605.38 Preschool and adult education. 605.39 Private education. § 605.1 Purpose. 605.40 [Reserved] The purpose of this part is to effectuate section 504 of the Rehabilitation Subpart E—Postsecondary Education Act of 1973, which is designed to elimi- 605.41 Application of this subpart. nate discrimination on the basis of 605.42 Admissions and recruitment. handicap in any program or activity 605.43 Treatment of students; general. receiving Federal financial assistance. 605.44 Academic adjustments. 605.45 Housing. § 605.2 Application. 605.46 Financial and employment assistance to students. This part applies to each recipient of 605.47 Nonacademic services. Federal financial assistance from the 605.48–605.50 [Reserved] National Science Foundation and to

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each program or activity that receives (i) Facility means all or any portion such assistance. of buildings, structures, equipment, [47 FR 8573, Mar. 1, 1982, as amended at 68 FR roads, walks, parking lots, or other 51381, Aug. 26, 2003] real or personal property or interest in such property. § 605.3 Definitions. (j) Handicapped person—(1) Handi- As used in this part, the term: capped persons means any person in the (a) The Act means the Rehabilitation United States who (i) has a physical or Act of 1973, Public Law 93–112, as mental impairment which substan- amended by the Rehabilitation Act tially limits one or more major life ac- Amendments of 1974, Public Law 93–516, tivities, (ii) has a record of such an im- 29 U.S.C. 794. pairment, or (iii) is regarded as having (b) Section 504 means section 504 of such an impairment. the Act. (2) As used in paragraph (j)(1) of this (c) Education of the Handicapped Act section, the phrase: means that statute as amended by the (i) Physical or mental impairment Education for all Handicapped Children means (A) any physiological disorder Act of 1975, Public Law 94–142, 20 U.S.C. or condition, cosmetic disfigurement, 1401 et seq. (d) Foundation means the National or anatomical loss affecting one or Science Foundation. more of the following body systems: (e) Director means the Director of the neurological; musculoskeletal; special National Science Foundation. sense organs; respiratory, including (f) Recipient means any state or its speech organs; cardiovascular; repro- political subdivision, any instrumen- ductive, digestive, genito-urinary; tality of a state or its political subdivi- hemic and lymphatic; skin; and endo- sion, any public or private agency, in- crine; or (B) any mental or psycho- stitution, organization, or other enti- logical disorder, such as mental retar- ty, or any person to which Federal fi- dation, organic brain syndrome, emo- nancial assistance is extended directly tional or mental illness, and specific or through another recipient, including learning disabilities. any successor, assignee, or transferee (ii) Major life activities means func- of a recipient, but excluding the ulti- tions such as caring for one’s self, per- mate beneficiary of the assistance. forming manual tasks, walking, seeing, (g) Applicant for assistance means one hearing, speaking, breathing, learning, who submits an application, request, or and working. plan required to be approved by a (iii) Has a record of such an impairment Foundation official or by a recipient as means has a history of, or has been a condition to becoming a recipient. misclassified as having, a mental or (h) Federal financial assistance means physical impairment that substantially any grant, loan, contract (other than a limits one or more major life activi- procurement contract or a contract of ties. insurance or guaranty), or any other (iv) Is regarded as having an impair- arrangement by which the Foundation ment means (A) has a physical or men- provides or otherwise makes available tal impairment that does not assistance in the form of: (1) Funds; subtantially limit major life activities (2) Services of Federal personnel; or but that is treated by a recipient as (3) Real and personal property or any constituting such a limitation; (B) has interest in or use of such property, in- a physical or mental impairment that cluding: substantially limits major life activi- (i) Transfers or leases of such prop- ties only as a result of the attitudes of erty for less than fair market value or others toward such impairment; or (C) for reduced consideration; and has none of the impairments defined in (ii) Proceeds from a subsequent paragraph (j)(2)(i) of this section but is transfer or lease of such property if the treated by a recipient as having such Federal share of its fair market value an impairment. is not returned to the Federal Govern- (k) Qualified handicapped person ment. means:

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(1) With respect to employment, a (m) Program or activity means all of handicapped person who, with reason- the operations of any entity described able accommodation, can perform the in paragraphs (m)(1) through (4) of this essential functions of the job in ques- section, any part of which is extended tion; Federal financial assistance: (2) With respect to public preschool (1)(i) A department, agency, special elementary, secondary, or adult edu- purpose district, or other instrumen- cational services, a handicapped person tality of a State or of a local govern- (i) of an age during which nonhandi- ment; or capped persons are provided such serv- (ii) The entity of such State or local ices, (ii) of any age during which it is government that distributes such as- mandatory under state law to provide sistance and each such department or such services to handicapped persons, agency (and each other State or local or (iii) to whom a state is required to government entity) to which the as- provide a free appropriate public edu- sistance is extended, in the case of as- cation under section 612 of the Edu- sistance to a State or local govern- cation of the Handicapped Act; and ment; (3) With respect to postsecondary and (2)(i) A college, university, or other vocational education services, a handi- postsecondary institution, or a public capped person who meets the academic system of higher education; or and technical standards requisite to (ii) A local educational agency (as de- admission or participation in the re- fined in 20 U.S.C. 7801), system of voca- cipient’s education program or activ- tional education, or other school sys- ity; tem; (4) With respect to other services, a (3)(i) An entire corporation, partner- handicapped person who meets the es- ship, or other private organization, or sential eligibility requirements for the an entire sole proprietorship— receipt of such services. (A) If assistance is extended to such (5) With respect to scientific and corporation, partnership, private orga- technical experimentation, observa- nization, or sole proprietorship as a tion, or field work a person who meets whole; or the academic, scientific and technical (B) Which is principally engaged in standards for participation and any the business of providing education, reasonable physical qualifications for health care, housing, social services, or participation. Physical qualifications parks and recreation; or are not ‘‘reasonable,’’ however, if they (ii) The entire plant or other com- can be obviated without unreasonable parable, geographically separate facil- burden by modifying facilities or aid, ity to which Federal financial assist- benefits, or services or by providing ance is extended, in the case of any auxiliary aids. In determining whether other corporation, partnership, private the burdens are unreasonable, factors organization, or sole proprietorship; or such as cost, risks, or sacrifice of le- (4) Any other entity which is estab- gitimate objectives may be considered. lished by two or more of the entities In exceptional cases psychological described in paragraph (m)(1), (2), or (3) qualifications may be considered ‘rea- of this section. sonable physical qualifications’ under [47 FR 8573, Mar. 1, 1982, as amended at 68 FR this paragraph. Nothing in this provi- 51380, Aug. 26, 2003] sion or these regulations requires re- versal of scientific judgments on re- § 605.4 Discrimination prohibited. search, including choice of experi- (a) General. No qualified handicapped ments, protocols for experiments, loca- person shall, on the basis of handicap, tion of observing sites, or the like that be excluded from participation in, be are considered necessary to any line of denied the benefits of, or otherwise be scientific inquiry by the research sci- subjected to discrimination under any entists involved. program or activity which receives (l) Handicap means any condition or Federal financial assistance. characteristic that renders a person a (b) Discriminatory actions prohibited. handicapped person as defined in para- (1) A recipient, in providing any aid, graph (j) of this section. benefit, or service, may not, directly or

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through contractual, licensing, or participate in such programs or activi- other arrangements, on the basis of ties that are not separate or different. handicap: (4) A recipient may not, directly or (i) Deny a qualified handicapped per- through contractual or other arrange- son the opportunity to participate in ments, utilize criteria or methods of or benefit from the aid, benefit, or administration (i) that have the effect service; of subjecting qualified handicapped (ii) Afford a qualified handicapped persons to discrimination on the basis person an opportunity to participate in of handicap, (ii) that have the purpose or benefit from the aid, benefit, or or effect of defeating or substantially service that is not equal to that af- impairing accomplishment of the ob- forded others; jectives of the recipient’s program or (iii) Provide a qualified handicapped activity with respect to handicapped person with an aid, benefit, or service persons, or (iii) that perpetuate the dis- that is not as effective as that provided crimination of another recipient if to others; both recipients are subject to common (iv) Provide different or separate aid, administrative control or are agencies benefits, or services to handicapped of the same State. persons or to any class of handicapped (5) In determining the site or loca- persons unless such action is necessary tion of a facility, an applicant for as- to provide qualified handicapped per- sistance or a recipient may not make sons with aid, benefits, or services that selections (i) that have the effect of ex- are as effective as those provided to cluding qualified handicapped persons others; from, denying them the benefits of, or (v) Aid or perpetuate discrimination otherwise subjecting them to discrimi- against a qualified handicapped person nation under any program or activity by providing significant assistance to an agency, organization, or person that that receives Federal financial assist- discriminates on the basis of handicap ance or (ii) that have the purpose or ef- in providing any aid, benefit, or service fect of defeating or substantially im- to beneficiaries of the recipient’s pro- pairing the accomplishment of the ob- gram or activity; jectives of the program or activity (vi) Deny a qualified handicapped with respect to qualified handicapped person the opportunity to participate persons. as a member of planning or advisory (6) As used in this section, the aid, boards; or benefit, or service provided under a (vii) Otherwise limit a qualified program or activity receiving Federal handicapped person in the enjoyment financial assistance includes any aid, of any right, privilege, advantage, or benefit, or service provided in or opportunity enjoyed by others receiv- through a facility that has been con- ing an aid, benefit, or service. structed, expanded, altered, leased or (2) For purposes of this part, aids, rented, or otherwise acquired, in whole benefits, and services, to be equally ef- or in part, with Federal financial as- fective, are not required to produce the sistance. identical result or level of achievement (c) Aid, benefits, or services limited by for handicapped and nonhandicapped Federal law. The exclusion of nonhandi- persons, but must afford handicapped capped persons from aid, benefits, or persons equal opportunity to obtain services limited by Federal statute or the same result, to gain the same ben- executive order to handicapped persons efit, or to reach the same level of or the exclusion of a specific class of achievement, in the most integrated handicapped persons from aid, benefits, setting appropriate to the person’s or services limited by Federal statute needs. or executive order to a different class (3) Despite the existence of separate of handicapped persons is not prohib- or different aid, benefits, or services ited by this part. provided in accordance with this part, a recipient may not deny a qualified [47 FR 8573, Mar. 1, 1982, as amended at 68 FR handicapped person the opportunity to 51381, Aug. 26, 2003]

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§ 605.5 Assurances required. participants in the recipient’s program or activity but who were participants (a) Assurances. Recipients of Federal in the program when such discrimina- financial assistance to which this part tion occurred or (ii) with respect to applies will assure NSF, in a manner handicapped persons who would have specified by the Director, that the pro- been participants in the program or ac- grams or activities will be operated in tivity had the discrimination not oc- compliance with this part. curred. (b) (1) In the Duration of obligation. (b) Voluntary action. A recipient may case of Federal financial assistance ex- take steps, in addition to any action tended in the form of real property or that is required by this part, to over- to provide real property or structures come the effects of conditions that re- on the property, the assurance will ob- sulted in limited participation in the ligate the recipient or, in the case of a recipient’s program or activity by subsequent transfer, the transferee, for qualified handicapped persons. the period during which the real prop- (c) Self-evaluation. (1) A recipient erty or structures are used for the pur- shall, within one year of the effective pose for which Federal financial assist- date of this part: ance is extended or for another purpose (i) Evaluate, with the assistance of involving the provision of similar serv- interested persons, including handi- ices or benefits. capped persons or organizations rep- (2) In the case of Federal financial as- resenting handicapped persons, its cur- sistance extended to provide personal rent policies and practices and the ef- property, the assurance will obligate fects thereof that do not or may not the recipient for the period during meet the requirements of this part; which it retains ownership or posses- (ii) Modify, after consultation with sion of the property. interested persons, including handi- (3) In all other cases the assurance capped persons or organizations rep- will obligate the recipient for the pe- resenting handicapped persons, any riod during which Federal financial as- policies and practices that do not meet sistance is extended. the requirements of this part; and [47 FR 8573, Mar. 1, 1982, as amended at 68 FR (iii) Take, after consultation with in- 51381, Aug. 26, 2003] terested persons, including handicapped persons or organizations rep- § 605.6 Remedial action, voluntary ac- resenting handicapped persons, appro- tion, and self-evaluation. priate remedial steps to eliminate the (a) Remedial action. (1) If the Director effects of any discrimination that re- finds that a recipient has discriminated sulted from adherence to these policies against persons on the basis of handi- and practices. cap in violation of section 504 or this (2) A recipient that employs fifteen part, the recipient shall take such re- or more persons shall, for at least three medial action as the Director deems years following completion of the eval- necessary to overcome the effects of uation required under paragraph (c)(1) the discrimination. of this section, maintain on file, make (2) Where a recipient is found to have available for public inspection, and discriminated against persons on the provide to the Director upon request: basis of handicap in violation of sec- (i) A list of the interested person con- tion 504 or this part and where another sulted (ii) a description of areas exam- recipient exercises control over the re- ined and any problems identified, and cipient that has discriminated, the Di- (iii) a description of any modifications rector, where appropriate, may require made and any remedial steps taken. either or both recipients to take reme- [47 FR 8573, Mar. 1, 1982, as amended at 68 FR dial action. 51381, Aug. 26, 2003] (3) The Director may, where necessary to overcome the effects of dis- § 605.7 Designation of responsible em- crimination in violation of section 504 ployee and adoption of grievance or this part, require a recipient to take procedures. remedial action (i) with respect to (a) Designation of responsible employee. handicapped persons who are no longer A recipient that employs fifteen or

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more persons shall designate at least and reprinting the materials and publi- one person to coordinate its efforts to cations. comply with this part. [47 FR 8573, Mar. 1, 1982, as amended at 68 FR (b) Adoption of grievance procedures. A 51381, Aug. 26, 2003] recipient that employs fifteen or more persons shall adopt grievance proce- § 605.9 Administrative requirements dures that incorporate appropriate due for small recipients. process standards and that provide for The Director may require any recipi- the prompt and equitable resolution of ent with fewer than fifteen employees, complaints alleging any action prohib- or any class of such recipients, to com- ited by this part. Such procedures need ply with §§ 605.7 and 605.8, in whole or in not be established with respect to com- part, when the Director finds a viola- plaints from applicants for employ- tion of this part or finds that such ment or from applicants for admission compliance will not significantly im- to postsecondary educational institu- pair the ability of the recipient or class tions. or recipients to provide benefits or services. § 605.8 Notice. (a) A recipient that employs fifteen § 605.10 Effect of state or local law or or more persons shall take appropriate other requirements and effect of initial and continuing steps to notify employment opportunities. participants, beneficiaries, applica- (a) The obligation to comply with tions, and employees, including those this part is not obviated or alleviated with impaired vision or hearing, and by the existence of any state or local unions or professional organizations law or other requirement that, on the holding collective bargaining or profes- basis of handicap, imposes prohibitions sional agreements with the recipient or limits upon the eligibility of quali- that it does not discriminate on the fied handicapped persons to receive basis of handicap in violation of sec- services or to practice any occupation tion 504 and this part. The notification or profession. shall state, where appropriate, that the (b) The obligation to comply with recipient does not discriminate in ad- this part is not obviated or alleviated mission or access to, or treatment or because employment opportunities in employment in, its programs or activi- any occupation or profession are or ties. The notification shall also include may be more limited for handicapped an identification of the responsible em- persons than for nonhandicapped per- ployee designated pursuant to § 605.7(a). sons. A recipient shall make the initial notification required by this paragraph Subpart B—Employment Practices within 90 days of the effective date of this part. Methods of initial and con- § 605.11 Discrimination prohibited. tinuing notification may include the (a) General. (1) No qualified handi- posting of notices, publication in news- capped person shall, on the basis of papers and magazines, placement of no- handicap, be subjected to discrimina- tices in recipient’s publication, and tion in employment under any program distribution of memoranda or other or activity to which this part applies. written communications. (2) A recipient that receives assist- (b) If a recipient publishes or uses re- ance under the Education of the Handi- cruitment materials or publications capped Act shall take positive steps to containing general information that it employ and advance in employment makes available to participants, bene- qualified handicapped persons in pro- ficiaries, applicants, or employees, it grams or activities assisted under that shall include in those materials or pub- Act. lications a statement of the policy de- (3) A recipient shall make all deci- scribed in paragraph (a) of this section. sions concerning employment under A recipient may meet the requirement any program or activity to which this of this paragraph either by including part applies in a manner which ensures appropriate inserts in existing mate- that discrimination on the basis of rials and publications or by revising handicap does not occur and may not

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limit, segregate, or classify applicants § 605.12 Reasonable accommodation. or employees in any way that ad- (a) A recipient shall make reasonable versely affects their opportunities or accommodation to the known physical status because of handicap. or mental limitations of an otherwise (4) A recipient may not participate in qualified handicapped applicant or em- a contractual or other relationship ployee unless the recipient can dem- that has the effect of subjecting quali- onstrate that the accommodation fied handicapped applicants or employ- would impose an undue hardship on the ees to discrimination prohibited by operation of its program or activity. this subpart. The relationships referred (b) Reasonable accommodation may to in this subparagraph include rela- include: (1) Making facilities used by tionships with employment and refer- employees readily accessible to and us- ral agencies, with labor unions, with able by handicapped persons, and (2) organizations providing or admin- job restructuring, part-time or modi- istering fringe benefits to employees of fied work schedules, acquisition or the recipient, and with organizations modification or equipment or devices, providing training and apprenticeships. the provision of readers or interpreters, (b) Specific activities. The provisions and other similar actions. of this subpart apply to: (c) In determining pursuant to para- (1) Recruitment, advertising, and the graph (a) of this section whether an accommodation would impose an undue processing of applications for employ- hardship on the operation of a recipi- ment; ent’s program or activity, factors to be (2) Hiring, upgrading, promotion, considered include: award of tenure, demotion, transfer, (1) The overall size of the recipient’s layoff, termination, right of return program or activity with respect to from layoff and rehiring; number of employees, number and type (3) Rates of pay or any other form of of facilities, and size of budget; compensation and changes in com- (2) The type of the recipient’s oper- pensation; ation, including the composition and (4) Job assignments, job classifica- structure of the recipient’s workforce; tions, organizational structures, posi- and tion descriptions, lines of progression, (3) The nature and cost of the accom- and seniority lists; modation needed. (5) Leaves of absence, sick leave, or (d) A recipient may not deny any em- any other leave; ployment opportunity to a qualified (6) Fringe benefits available by vir- handicapped employee or applicant if tue of employment, whether or not ad- the basis for the denial is the need to ministered by the recipient; make reasonable accommodation to (7) Selection and financial support the physical or mental limitations of for training, including apprenticeship, the employee or applicant. professional meetings, conferences, and [47 FR 8573, Mar. 1, 1982, as amended at 68 FR other related activities, and selection 51381, Aug. 26, 2003] for leaves of absence to pursue training; § 605.13 Employment criteria. (8) Employer sponsored activities, in- (a) A recipient may not make use of cluding those that are social or rec- any employment test or other selection reational; and criterion that screens out or tends to (9) Any other term, condition, or screen out handicapped persons or any privilege of employment. class of handicapped persons unless: (1) (c) A recipient’s obligation to comply The test score or other selection criterion, as used by the recipient, is with this subpart is not affected by any shown to be job-related for the position inconsistent term of any collective in question, and (2) alternative job-re- bargaining agreement to which it is a lated tests or criteria that do not party. screen out or tend to screen out as [47 FR 8573, Mar. 1, 1982, as amended at 68 FR many handicapped persons are not 51381, Aug. 26, 2003] shown by the Director to be available.

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(b) A recipient shall select and ad- (c) Nothing in this section shall pro- minister tests concerning employment hibit a recipient from conditioning an so as best to ensure that, when admin- offer of employment on the results of a istered to an applicant or employee medical examination conducted prior who has a handicap that impairs sen- to the employee’s entrance on duty, sory, manual, or speaking skills, the Provided, That: (1) All entering employ- test results accurately reflect the ap- ees are subjected to such an examina- plicant’s or employee’s job skills, apti- tion regardless of handicap, and (2) the tude, or whatever other factor the test results of such an examination are used purports to measure, rather than re- only in accordance with the require- flecting the applicant’s or employee’s ments of this part. impaired sensory, manual, or speaking (d) Information obtained in accord- skills (except where those skills are ance with this section as to the med- the factors that the test purports to ical condition or history of the appli- measure). cant shall be collected and maintained on separate forms that shall be ac- § 605.14 Preemployment inquiries. corded confidentiality as medical (a) Except as provided in paragraphs records, except that: (b) and (c) of this section, a recipient (1) Supervisors and managers may be may not conduct a preemployment informed regarding restrictions on the medical examination or may not make work or duties of handicapped persons preemployment inquiry of an applicant and regarding necessary accommoda- as to whether the applicant is a handi- tions; capped person or as to the nature or se- (2) First aid and safety personnel verity of a handicap. A recipient may, may be informed, where appropriate, if however, make preemployment inquiry the condition might require emergency into an applicant’s ability to perform treatment; and job-related functions. (3) Government officials inves- (b) When a recipient is taking reme- tigating compliance with the Act shall dial action to correct the effects of be provided relevant information upon past discrimination pursuant to request. § 605.6(a), when a recipient is taking voluntary action to overcome the ef- §§ 605.15–605.20 [Reserved] fects of conditions that resulted in limited participation in its federally as- Subpart C—Accessibility sisted program or activity pursuant to § 605.6(b), or when a recipient is taking § 605.21 Discrimination prohibited. affirmative action pursuant to section No qualified handicapped person 503 of the Act, the recipient may invite shall, because a recipient’s facilities applicants for employment to indicate are inaccessible to or unusable by whether and to what extent they are handicapped persons, be denied the handicapped, Provided, That: benefits of, be excluded from participa- (1) The recipient states clearly on tion in, or otherwise be subjected to any written questionnaire used for this discrimination under any program or purpose or makes clear orally if no activity to which this part applies. written questionnaire is used that the information requested is intended for § 605.22 Existing facilities. use solely in connection with its reme- (a) Accessibility. A recipient shall op- dial action obligations or its voluntary erate each program or activity to or affirmative action efforts; and which this part applies so that when (2) The recipient states clearly that each part is viewed in its entirety it is the information is being requested on a readily accessible to qualified handi- voluntary basis, that it will be kept capped persons. This paragraph does confidential as provided in paragraph not require a recipient to make each of (d) of this section, that refusal to pro- its existing facilities or every part of a vide it will not subject the applicant or facility accessible to and usable by employee to any adverse treatment, qualified handicapped persons. and that it will be used only in accord- (b) Methods. A recipient may comply ance with this part. with the requirements of paragraph (a)

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of this section through such means as capped persons. A copy of the transi- redesign of equipment, reassignment of tion plan shall be made available for classes or other services to accessible public inspection. The plan shall, at a buildings, assignment of aides to bene- minimum: ficiaries, home visits, delivery of (1) Identify physical obstacles in the health, welfare, or other social services recipient’s facilities that limit the ac- at alternate accessible sites, alteration cessibility of its program or activity to of existing facilities and construction qualified handicapped persons; of new facilities in conformance with (2) Describe in detail the methods the requirements of § 605.23, or any that will be used to make the facilities other methods that result in making accessible; its program or activity accessible to (3) Specify the schedule for taking qualified handicapped persons. A re- the steps necessary to achieve full ac- cipient is not required to make struc- cessibility under paragraph (a) of this tural changes in existing facilities section and, if the time period of the where other methods are effective in transition plan is longer than one year, achieving compliance with paragraph identify the steps of that will be taken (a) of this section. In choosing among available methods for meeting the re- during each year of the transition pe- quirement of paragraph (a) of this sec- riod; and tion, a recipient shall give priority to (4) Indicate the person responsible for those methods that serve qualified implementation of the plan. handicapped persons in the most inte- (f) Notice. The recipient shall adopt grated setting appropriate. and implement procedures to ensure (c) Small health, welfare, or other social that interested persons, including per- service providers. If a recipient with sons with impaired vision or hearing, fewer than fifteen employees that pro- can obtain information as to the exist- vides health, welfare, or other social ence and location of services, activi- services finds, after consultation with ties, and facilities that are accessible a qualified handicapped person seeking to and usuable by qualified handi- its services, that there is no method of capped persons. complying with paragraph (a) of this [47 FR 8573, Mar. 1, 1982, as amended at 68 FR section other than making a signifi- 51381, Aug. 26, 2003] cant alteration in its existing facilities, the recipient may, as an alter- § 605.23 New construction. native, refer the qualified handicapped person to other providers of those serv- (a) Design and construction. Each fa- ices that are accessible. cility or part of a facility constructed (d) Time period. A recipient shall com- by, on behalf of, or for the use of a reply with the requirement of paragraph cipient shall be designed and con- (a) of this section within sixty days of structed in such manner that the facil- the effective date of this part except ity or part of the facility is readily ac- that where structural changes in facili- cessible to and usable by qualified ties are necessary, such changes shall handicapped persons, if the construc- be made within three years of the ef- tion was commenced after the effective fective date of this part, but in any date of this part. event as expeditiously as possible. (b) Alteration. Each facility or part of (e) Transition plan. In the event that a facility which is altered by, on behalf structural changes to facilities are nec- of, or for the use of a recipient after essary to meet the requirement of the effective date of this part in a man- paragraph (a) of this section, a recipi- ner that affects or could affect the ent shall develop, within six months of usability of the facility or part of the the effective date of this part, a transi- facility shall, to the maximum extent tion plan setting forth the steps nec- feasible, be altered in such manner essary to complete such changes. The that the altered portion of the facility plan shall be developed with the assist- is readily accessible to and usable by ance of interested persons, including qualified handicapped persons. qualified handicapped persons or orga- (c) Conformance with Uniform Federal nizations representing qualified handi- Accessibility Standards. (1) Effective as

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of January 18, 1991, design, construc- (b) Take appropriate steps to notify tion, or alteration of buildings in con- handicapped persons and their parents formance with sections 3-8 of the Uni- or guardians or the recipient’s duty form Federal Accessibility Standards under this subpart. (USAF) (appendix A to 41 CFR subpart 101–19.6) shall be deemed to comply § 605.33 Free appropriate public edu- with the requirements of this section cation. with respect to those buildings. Depar- (a) General. A recipient that operates tures from particular technical and a public elementary or secondary edu- scoping requirements of UFAS by the cation program shall provide a free ap- use of other methods are permitted propriate public education to each where substantially equivalent or qualified handicapped person who is in greater access to and usability of the the recipient’s jurisdiction, regardless building is provided. of the nature or severity of the per- (2) For purposes of this section, sec- son’s handicap. tion 4.1.6(1)(g) of UFAS shall be inter- (b) Appropriate education. (1) For the preted to exempt from the require- purpose of this subpart, the provision ments of UFAS only mechanical rooms of an appropriate education is the pro- and other spaces that, because of their vision of regular or special education intended use, will not require accessi- and related aids and services that (i) bility to the public or beneficiaries or are designed to meet individual edu- result in the employment or residence cational needs of handicapped persons therein of persons with physical handi- as adequately as the needs of nonhandi- caps. capped persons are met and (ii) are (3) This section does not require re- based upon adherence to procedures cipients to make building alterations that satisfy the requirements of that have little likelihood of being ac- §§ 605.34, 605.35 and 605.36. complished without removing or altering a load-bearing structural member. (2) Implementation of an Individual- ized Education Program developed in [47 FR 8573, Mar. 1, 1982, as amended at 55 FR accordance with the Education of the 52138, 52142, Dec. 19, 1990] Handicapped Act is one means of meeting the standard established in para- §§ 605.24–605.30 [Reserved] graph (b)(1)(i) of this section. (3) A recipient may place a handi- Subpart D—Preschool, Elementary, capped person or refer such person for and Secondary Education aid, benefits, or services other than those that it operates or provides as its § 605.31 Application of this subpart. means of carrying out the require- Subpart D applies to preschool, elements of this subpart. If so, the recipi- mentary, secondary, and adult edu- ent remains responsible for ensuring cation programs or activities that re- that the requirements of this subpart ceive or benefit from Federal financial are met with respect to any handi- assistance and to recipients that oper- capped person so placed or referred. ate, or that receive Federal financial (c) Free education—(1) General. For assistance for the operation of, such the purpose of this section, the provi- programs or activities. sion of a free education is the provision [47 FR 8573, Mar. 1, 1982, as amended at 68 FR of educational and related services 51381, Aug. 26, 2003] without cost to the handicapped person or to his or her parents or guardian, ex- § 605.32 Location and notification. cept for those fees that are imposed on A recipient that operates a public el- non-handicapped persons or their par- ementary or secondary education pro- ents or guardian. It may consist either gram shall annually: of the provision of free services or, if a (a) Undertake to identify and locate recipient places a handicapped person every qualified handicapped person re- or refers such person for aid, benefits, siding in the recipient’s jurisdiction or services not operated or provided by who is not receiving a public edu- the recipient as its means of carrying cation; and out the requirements of this subpart, of

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payment for the costs of the aid, bene- such requirements at the earliest prac- fits, or services. Funds available from ticable time and in no event later than any public or private agency may be July 1, 1983. used to meet the requirements of this [47 FR 8573, Mar. 1, 1982, as amended at 68 FR subpart. Nothing in this section shall 51381, Aug. 26, 2003] be construed to relieve an insurer or similar third party from an otherwise § 605.34 Educational setting. valid obligation to provide or pay for (a) Academic setting. A recipient to services provided to a handicapped per- which this subpart applies shall edu- son. cate, or shall provide for the education (2) Transportation. If a recipient of, each qualified handicapped person places a handicapped person or refers in its jurisdiction with persons who are such person for aid, benefits, or serv- not handicapped to the maximum ex- ices not operated or provided by the re- tent appropriate to the needs of the cipient as its means of carrying out the handicapped person. A recipient shall requirements of this subpart, the replace a handicapped person in the reg- cipient shall ensure that adequate ular educational environment operated transportation to and from the aid, by the recipient unless it is dem- benefits, or services is provided at no onstrated by the recipient that the greater cost than would be incurred by education of the person in the regular the person or his or her parents or environment with the use of supple- guardian if the person were placed in mentary aids and services cannot be the program operated by the recipient. achieved satisfactorily. Whenever a re- (3) Residential placement. If a public or cipient places a person in a setting private residential placement is nec- other than the regular educational en- essary to provide a free appropriate vironment pursuant to this paragraph, public education to a handicapped per- it shall take into account the prox- son because of his or her handicap, the imity of the alternate setting to the placement, including non-medical care person’s home. and room and board, shall be provided (b) Nonacademic settings. In providing at no cost to the person or his or her or arranging for the provision of non- parents or guardian. academic and extracurricular services (4) Placement of handicapped persons and activities, including meals, recess by parents. If a recipient has made periods, and the services and activities available, in conformance with the re- set forth in § 605.37(a)(2), a recipient quirements of this section and § 605.34, shall ensure that handicapped persons a free appropriate public education to a participate with nonhandicapped per- handicapped person and the person’s sons in such activities and services to parents or guardian chooses to place the maximum extent appropriate to the person in a private school, the re- the needs of the handicapped person in cipient is not required to pay for the question. person’s education in the private (c) Comparable facilities. If a recipient, school. Disagreements between a par- in compliance with paragraph (a) of ent or guardian and a recipient regard- this section, operates a facility that is ing whether the recipient has made a identifiable as being for handicapped free appropriate public education avail- persons, the recipient shall ensure that able or otherwise regarding the ques- the facility and the services and activi- tion of financial responsibility are sub- ties provided therein are comparable to ject to the due process procedures of the other facilities, services, and ac- § 605.36. tivities of the recipient. (d) Compliance. A recipient may not exclude any qualified handicapped per- § 605.35 Evaluation and placement. son from a public elementary or sec- (a) Preplacement evaluation. A recipi- ondary education after the effective ent that operates a public elementary date of this part. A recipient that is or secondary education program or ac- not, on the effective date of this regu- tivity shall conduct an evaluation in lation, in full compliance with the accordance with the requirements of other requirements of the preceding paragraph (b) of this section of any per- paragraphs of this section shall meet son who, because of handicap, needs or

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is believed to need special education or (b) of this section, for periodic reevalu- related services before taking any ac- ation of students who have been pro- tion with respect to the initial place- vided special education and related ment of the person in regular or special services. A reevaluation procedure con- education and any subsequent signifi- sistent with the Education for the cant change in placement. Handicapped Act is one means of meet- (b) Evaluation procedures. A recipient ing this requirement. to which this subpart applies shall es- [47 FR 8573, Mar. 1, 1982, as amended at 68 FR tablish standards and procedures for 51381, Aug. 26, 2003] the evaluation and placement of persons who, because of handicap, need or § 605.36 Procedural safeguards. are believed to need special education A recipient that operates a public el- or related services which ensure that: ementary or secondary education pro- (1) Tests and other evaluation mate- gram shall establish and implement, rials have been validated for the spe- with respect to actions regarding the cific purpose for which they are used identification, evaluation, or edu- and are administered by trained per- cational placement of persons who, be- sonnel in conformance with the in- cause of handicap, need or are believed structions provided by their producer; to need special instruction or related (2) Tests and other evaluation mate- services, a system of procedural safe- rials include those tailored to assess guards that includes notice, an oppor- specific areas of educational need and tunity for the parents or guardian of not merely those which are designed to the person to examine relevant records, provide a single general intelligence an impartial hearing with opportunity quotient; and for participation by the person’s par- (3) Tests are selected and adminis- ents or guardian and representation by tered so as best to ensure that, when a counsel, and a review procedure. Com- test is administered to a student with pliance with the procedural safeguards impaired sensory, manual, or speaking of section 615 of the Education of the skills, the test results accurately re- Handicapped Act is one means of meet- flect the student’s aptitude or achieve- ing this requirement. ment level or whatever other factor the test purports to measure, rather than § 605.37 Nonacademic services. reflecting the student’s impaired sen- (a) General. (1) A recipient to which sory, manual, or speaking skills (ex- this subpart applies shall provide non- cept where those skills are the factors academic and extracurricular services that the test purports to measure). and activities in such manner as is nec- (c) Placement procedures. In inter- essary to afford handicapped students preting evaluation data and in making an equal opportunity for participation placement decisions, a recipient shall in such services and activities. (1) draw upon information from a vari- (2) Nonacademic and extracurricular ety of sources, including aptitude and services and activities may include achievement tests, teacher rec- counseling services, physical recommendations, physical condition, so- reational athletics, transportation, cial or cultural background, and adapt- health services, recreational activities, ive behavior, (2) establish procedures to special interest groups or clubs spon- ensure that information obtained from sored by the recipients, referrals to all such sources is documented and agencies which provide assistance to carefully considered, (3) ensure that handicapped persons, and employment the placement decision is made by a of students, including both employ- group of persons, including persons ment by the recipient and assistance in knowledgeable about the child, the making available outside employment. meaning of the evaluation data, and (b) Counseling services. A recipient to the placement options, and (4) ensure which this subpart applies that pro- that the placement decision is made in vides personal, academic, or vocational conformity with § 605.34. counseling, guidance, or placement (d) Reevaluation. A recipient to which services to its students shall provide this section applies shall establish pro- these services without discrimination cedures, in accordance with paragraph on the basis of handicap. The recipient

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shall ensure that qualified handicapped handicapped persons except to the ex- students are not counseled toward tent that any additional charge is jus- more restrictive career objectives than tified by a substantial increase in cost are nonhandicapped students with to the recipient. similar interests and abilities. (c) A recipient to which this section (c) Physical education and athletics. (1) applies that provides special education In providing physical education courses shall do so in accordance with the pro- and athletics and similar aid, benefits, visions of §§ 605.35 and 605.36. Each re- or services to any of its students, a recipient to which this section applies is cipient to which this subpart applies subject to the provisions of §§ 605.34, may not discriminate on the basis of 605.37 and 605.38. handicap. A recipient that offers physical education courses or that operates [47 FR 8573, Mar. 1, 1982, as amended at 68 FR 51381, Aug. 26, 2003] or sponsors interscholastic, club, or intramural athletics shall provide to § 605.40 [Reserved] qualified handicapped students an equal opportunity for participation. (2) A recipient may offer to handi- Subpart E—Postsecondary capped students physical education and Education athletic activities that are separate or different from those offered to non- § 605.41 Application of this subpart. handicapped students only if separa- Subpart E applies to postsecondary tion or differentiation is consistent education programs or activities, in- with the requirements of § 605.34 and cluding postsecondary vocational edu- only if no qualified handicapped stu- cation programs or activities, that re- dent is denied the opportunity to com- ceive Federal financial assistance and pete for teams or to participate in to recipients that operate, or that re- courses that are not separate or dif- ceive Federal financial assistance for ferent. the operation of, such programs or activities. [47 FR 8573, Mar. 1, 1982, as amended at 68 FR 51381, Aug. 26, 2003] [47 FR 8573, Mar. 1, 1982, as amended at 68 FR 51381, Aug. 26, 2003] § 605.38 Preschool and adult education. § 605.42 Admissions and recruitment. A recipient to which this subpart ap- (a) General. Qualified handicapped plies that provides preschool education persons may not, on the basis of handi- or day care or adult education may cap, be denied admission or be sub- not, on the basis of handicap, exclude jected to discrimination in admission qualified handicapped persons and shall or recruitment by a recipient to which take into account the needs of such this subpart applies. persons in determining the aid, bene- (b) Admissions. In administering its fits, or services to be provided. admission policies, a recipient to which [47 FR 8573, Mar. 1, 1982, as amended at 68 FR this subpart applies: 51381, Aug. 26, 2003] (1) May not apply limitations upon the number or proportion of handi- § 605.39 Private education. capped persons who may be admitted; (a) A recipient that provides private (2) May not make use of any test or elementary or secondary education criterion for admission that has a dis- may not, on the basis of handicap, ex- proportionate, adverse effect on handi- clude a qualified handicapped person if capped persons or any class of handi- the person can, with minor adjust- capped persons unless (i) the test or ments, be provided an appropriate edu- criterion, as used by the recipient, has cation, as defined in § 605.33(b)(1), with- been validated as a predictor of success in that recipient’s program or activity. in the education program or activity in (b) A recipient to which this section question and (ii) alternate tests or cri- applies may not charge more for the teria that have a less disproportionate, provision of an appropriate education adverse effect are not shown by the Di- to handicapped persons than to non- rector to be available.

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(3) Shall assure itself that (i) admis- (d) Validity studies. For the purpose of sions tests are selected and adminis- paragraph (b)(2) of this section, a re- tered so as best to ensure that, when a cipient may base prediction equations test is administered to an applicant on first year grades, but shall conduct who has a handicap that impairs sen- periodic validity studies against the sory, manual, or speaking skills, the criterion of overall success in the edu- test results accurately reflect the ap- cation program or activity in question plicant’s aptitude or achievement level in order to monitor the general valid- or whatever other factor the test pur- ity of the test scores. ports to measure, rather than reflecting the applicant’s impaired sensory, § 605.43 Treatment of students; gen- manual, or speaking skills (except eral. where those skills are the factors that (a) No qualified handicapped student the test purports to measure); (ii) ad- shall, on the basis of handicap, be ex- missions tests that are designed for cluded from participation in, be denied persons with impaired sensory, man- the benefits of, or otherwise be sub- ual, or speaking skills are offered as jected to discrimination under any aca- often and in as timely a manner as are demic, research, occupational training, other admissions tests; and (iii) admissions tests are administered in facili- housing, health insurance, counseling, ties that, on the whole, are accessible financial aid, physical education, ath- to handicapped persons; and letics, recreation, transportation, (4) Except as provided in paragraph other extracurricular, or other postsec- (c) of this section, may not make ondary education aid, benefits, or serv- preadmission inquiry as to whether an ices to which this subpart applies. applicant for admission is a handi- (b) A recipient to which this subpart capped person but, after admission, applies that considers participation by may make inquiries on a confidential students in education programs or ac- basis as to handicaps that may require tivities not operated wholly by the re- accommodation. cipient as part of, or equivalent to, an (c) Preadmission inquiry exception. education program or activity operated When a recipient is taking remedial ac- by the recipient shall assure itself that tion to correct the effects of past dis- the other education program or activ- crimination pursuant to § 605.6(a) or ity, as a whole, provides an equal op- when a recipient is taking voluntary portunity for the participation of action to overcome the effects of condi- qualified handicapped persons. tions that resulted in limited partici- (c) A recipient to which this subpart pation in its federally assisted program applies may not, on the basis of handi- or activity pursuant to § 605.6(6), the re- cap, exclude any qualified handicapped cipient may invite applicants for ad- student from any course, course of mission to indicate whether and to study, or other part of its education what extent they are handicapped, Pro- program or activity. vided, That: (d) A recipient to which this subpart (1) The recipient states clearly on applies shall operate its program or ac- any written questionnaire used for this tivity in the most integrated setting purpose or makes clear orally if no appropriate. written questionnaire is used that the information requested is intended for [47 FR 8573, Mar. 1, 1982, as amended at 68 FR use solely in connection with its reme- 51381, Aug. 26, 2003] dial action obligations or its voluntary action efforts; and § 605.44 Academic adjustments. (2) The recipient states clearly that (a) Academic requirements. A recipient the information is being requested on a to which this subpart applies shall voluntary basis, that it will be kept make such modifications to its aca- confidential, that refusal to provide it demic requirements as are necessary to will not subject the applicant to any ensure that such requirements do not adverse treatment, and that it will be discriminate or have the effect of dis- used only in accordance with this part. criminating, on the basis of handicap,

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against a qualified handicapped appli- for use by students with manual im- cant or student. Academic require- pairments, and other similar services ments that the recipient can dem- and actions. Recipients need not pro- onstrate are essential to the instruc- vide attendents, individually pre- tion being pursued by such student or scribed devices, readers for personal to any directly related licensing reuse or study, or other devices or serv- quirement will not be regarded as dis- ices of a personal nature. criminatory within the meaning of this [47 FR 8573, Mar. 1, 1982, as amended at 68 FR section. Modifications may include 51381, Aug. 26, 2003] changes in the length of time permitted for the completion of degree re- § 605.45 Housing. quirements, substitution of specific (a) Housing provided by the recipient. A courses required for the completion of recipient that provides housing to its degree requirements, and adaptation of nonhandicapped students shall provide the manner in which specific courses comparable, convenient, and accessible are conducted. housing to handicapped students at the (b) Other rules. A recipient to which same cost as to others. At the end of this subpart applies may not impose the transition period provided for in upon handicapped students other rules, subpart C, such housing shall be avail- such as the prohibition of tape record- able in sufficient quantity and variety ers in classrooms or of dog guides in so that the scope of handicapped stu- campus buildings, that have the effect dents’ choice of living accommodations of limiting the participation of handi- is, as a whole, comparable to that of capped students in the recipient’s edu- nonhandicapped students. cation program or activity. (b) Other housing. A recipient that as- (c) Course examinations. In its course sists any agency, organization, or per- examinations or other procedures for son in making housing available to any evaluating students’ academic achieve- of its students shall take such action ment, a recipient to which this subpart as may be necessary to assure itself applies shall provide such methods for that such housing is, as a whole, made evaluating the achievement of students available in a manner that does not re- who have a handicap that impairs sen- sult in discrimination on the basis of sory, manual, or speaking skills as will handicap. best ensure that the results of the evaluation represents the student’s § 605.46 Financial and employment as- achievement in the course, rather than sistance to students. reflecting the student’s impaired sen- (a) Provision of financial assistance. (1) sory, manual, or speaking skills (ex- In providing financial assistance to cept where such skills are the factors qualified handicapped persons, a recipi- that the test purports to measure). ent to which this subpart applies may (d) Auxiliary aids. (1) A recipient to not (i), on the basis of handicap, pro- which this subpart applies shall take vide less assistance than is provided to such steps as are necessary to ensure nonhandicapped persons, limit eligi- that no handicapped student is denied bility for assistance, or otherwise dis- the benefits of, excluded from partici- criminate or (ii) assist any entity or pation in, or otherwise subjected to person that provides assistance to any discrimination under the education of the recipient’s students in a manner program or activity operated by the re- that discriminates against qualified cipient because of the absence of edu- handicapped persons on the basis of cational auxiliary aids for students handicap. with impaired sensory, manual, or (2) A recipient may administer or as- speaking skills. sist in the administration of scholar- (2) Auxiliary aids may include taped ships, fellowships, or other forms of fi- texts, interpreters or other effective nancial assistance established under methods of making orally delivered wills, trusts, bequests, or similar legal materials available to students with instruments that require awards to be hearing impairments, readers in librar- made on the basis of factors that dis- ies for students with visual impair- criminate or have the effect of dis- ments, classroom equipment adapted criminating on the basis of handicap

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only if the overall effect of the award persons in their pursuit of particular of scholarships, fellowships, and other careers. forms of financial assistance is not dis- (c) Social organizations. A recipient criminatory on the basis of handicap. that provides significant assistance to (b) Assistance in making available out- fraternities, sororities, or similar orga- side employment. A recipient that helps nizations shall assure itself that the its students to obtain employment membership practices of such organiza- shall assure itself that the employment tions do not permit discrimination oth- opportunities it helps to make avail- erwise prohibited by this subpart. able to students are, as a whole, made [47 FR 8573, Mar. 1, 1982, as amended at 68 FR available in a manner that would not 51381, Aug. 26, 2003] violate subpart B if they were provided by the recipient. §§ 605.48–605.50 [Reserved] (c) Employment of students by recipients. A recipient that employs any of Subpart F—Health, Welfare, and its students may not do so in a manner that violates subpart B. Social Services

§ 605.47 Nonacademic services. § 605.51 Application of this subpart. (a) Physical education and athletics. (1) Subpart F applies to health, welfare, In providing physical education courses and other social service programs or and athletics and similar aid, benefits, activities that receive Federal finan- or services to any of its students, a re- cial assistance and to recipients that cipient to which this subpart applies operate, or that receive Federal finan- may not discriminate on the basis of cial assistance for the operation of, handicap. A recipient that offers phys- such programs or activities. ical education courses or that operates [47 FR 8573, Mar. 1, 1982, as amended at 68 FR or sponsors intercollegiate, club, or in- 51381, Aug. 26, 2003] tramural athletics shall provide to qualified handicapped students an § 605.52 Health, welfare, and other so- equal opportunity for participation in cial services. these activities. (a) General. In providing health, wel- (2) A recipient may offer to handi- fare, or other social services or bene- capped students physical education and fits, a recipient may not, on the basis athletic activities that are separate or of handicap: different only if separation or differen- (1) Deny a qualified handicapped per- tiation is consistent with the require- son these benefits or services; ments of § 605.43(d) and only if no quali- (2) Afford a qualified handicapped fied handicapped student is denied the person an opportunity to receive bene- opportunity to compete for teams or to fits or services that is not equal to that participate in courses that are not sep- offered nonhandicapped persons; arate or different. (3) Provide a qualified handicapped (b) Counseling and placement services. person which benefits or services that A recipient to which this subpart ap- are not as effective (as defined in plies that provides personal, academic, § 605.4(b)) as the benefits or services or vocational counseling, guidance, or provided to others; placement services to its students shall (4) Provide benefits or services in a provide these services without dis- manner that limits or has the effect of crimination on the basis of handicap. limiting the participation of qualified The recipient shall ensure that quali- handicapped persons; or fied handicapped students are not (5) Provide different or separate ben- counseled toward more restrictive ca- efits or services to handicapped persons reer objectives than are nonhandi- except where necessary provide quali- capped students with similar interests fied handicapped persons with benefits and abilities. This requirement does and services that are as effective as not preclude a recipient from providing those provided to others. factual information about licensing (b) Notice. A recipient that provides and certification requirements that notice concerning benefits or services may present obstacles to handicapped or written material concerning waivers

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of rights or consent to treatment shall in any way the obligations of recipi- take such steps as are necessary to en- ents under subpart D. sure that qualified handicapped per- [47 FR 8573, Mar. 1, 1982, as amended at 68 FR sons, including those with impaired 51381, Aug. 26, 2003] sensory or speaking skills, are not denied effective notice because of their §§ 605.55–605.60 [Reserved] handicap. (c) Emergency treatment for the hearing Subpart G—Procedures impaired. A recipient hospital that provides health services or benefits shall § 605.61 Procedures. establish a procedure for effective com- The procedural provisions applicable munication with persons with impaired to title VI of the Civil Rights Act of hearing for the purpose of providing 1964 apply to this part. These proce- emergency health care. dures are found in §§ 611.6 through 611.10 (d) Auxiliary aids. (1) A recipient to of this title (45 CFR). In the event that which this subpart applies that em- the Department of Education or the ploys fifteen or more persons shall pro- Department of Health and Human vide appropriate auxiliary aids to per- Services conducts a hearing under this part on behalf of NSF, the provisions of sons with impaired sensory, manual, or 45 CFR 84.61 shall also apply except speaking skills, where necessary to af- that the Director of NSF or his des- ford such persons an equal opportunity ignee shall also be ‘‘the responsible De- to benefit from the service in question. partment official’’ for purposes of 45 (2) The Director may require recipi- CFR 81.102 and 81.121 and ‘‘the review- ents with fewer than fifteen employees ing authority’’ for purposes of 45 CFR to provide auxiliary aids where the pro- 81.103, 81.104, and 81.105. Also, in such vision of aids would not significantly cases, the Director of NSF rather than impair the ability of the recipient to the Secretary of HHS or Education provide its benefits or services. shall conduct the review provided for (3) For the purpose of this paragraph, in 45 CFR 81.106. auxiliary aids may include brailled and taped material, interpreters, and other §§ 605.62–605.90 [Reserved] aids for persons with impaired hearing or vision. PART 606—ENFORCEMENT OF NONDISCRIMINATION ON THE § 605.53 Drug and alcohol addicts. BASIS OF HANDICAP IN PRO- A recipient to which this subpart ap- GRAMS OR ACTIVITIES CON- plies that operates a general hospital DUCTED BY THE NATIONAL or outpatient facility may not dis- SCIENCE FOUNDATION criminate in admission or treatment against a drug or alcohol abuser or al- Sec. coholic who is suffering from a medical 606.1 Purpose. condition, because of the person’s drug 606.2 Application. or alcohol abuse or alcoholism. 606.3 Definitions. 606.4–606.9 [Reserved] 606.10 Self-evaluation. § 605.54 Education of institutionalized 606.11 Notice. persons. 606.12–606.29 [Reserved] A recipient to which this subpart ap- 606.30 General prohibitions against dis- plies and that operates or supervises a crimination. 606.31–606.39 [Reserved] program or activity that provides aid, 606.40 Employment. benefits, or services for persons who 606.41–606.49 [Reserved] are institutionalized because of handi- 606.50 Program accessibility: Discrimina- cap shall ensure that each qualified tion prohibited. handicapped person, as defined in 606.51 Program accessibility: Existing fa- § 605.3(k)(2), in its program or activity cilities. 606.52 Program accessibility: New construc- is provided an appropriate education, tion and alterations. as defined in § 605.33(b). Nothing in this 606.53–606.59 [Reserved] section shall be interpreted as altering 606.60 Communications.

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606.61–606.69 [Reserved] form the Foundation of the nature and 606.70 Complaint procedures. date of the alleged violation of section 606.71–606.99 [Reserved] 504. It shall be signed by the complain- AUTHORITY: 29 U.S.C. 794. ant or by someone authorized to do so SOURCE: 54 FR 4791, Jan. 31, 1989, unless on his or her behalf. Complaints filed otherwise noted. on behalf of classes or third parties shall describe or identify (by name, if § 606.1 Purpose. possible) the alleged victims of dis- The purpose of this part is to effec- crimination. tuate section 119 of the Rehabilitation, Facility means all or any portion of Comprehensive Services, and Develop- buildings, structures, equipment, mental Disabilities Amendments of roads, walks, parking lots, rolling 1978, which amended section 504 of the stock or other conveyances, or other Rehabilitation Act of 1973 to prohibit real or personal property. discrimination on the basis of handicap Foundation means the National in programs or activities conducted by Science Foundation. Executive agencies or the United Individual with handicaps means any States Postal Service. person in the United States who has a physical or mental impairment that § 606.2 Application. substantially limits one or more major This part applies to all programs or life activities, has a record of such an activities conducted by the Founda- impairment, or is regarded as having tion, except for programs or activities such an impairment. As used in this conducted outside the United States definition, the phrase: that do not involve individuals with (1) Physical or mental impairment in- handicaps in the United States. Pro- cludes— grams and activities receiving Federal (i) Any physiological disorder or con- financial assistance from the Founda- dition, cosmetic disfigurement, or ana- tion are covered by 45 CFR part 605. tomical loss affecting one or more of the following body systems: neuro- § 606.3 Definitions. logical; musculoskeletal; special sense For purposes of this part, the term— organs; respiratory, including speech Assistant Attorney General means the organs; cardiovascular; reproductive; Assistant Attorney General, Civil digestive; genitourinary; hemic and Rights Division, Department of Jus- lymphatic; skin; and endocrine; or tice. (ii) Any mental or psychological dis- Auxiliary aids means services or de- order, such as mental retardation, or- vices that enable persons with im- ganic brain syndrome, emotional or paired sensory, manual, or speaking mental illness, and specific learning skills to have an equal opportunity to disabilities. The term physical or mental participate in, and enjoy the benefits impairment includes, but is not limited of, programs or activities conducted by to, such diseases and conditions as or- the Foundation. For example, auxiliary thopedic, visual, speech, and hearing aids useful for persons with impaired impairments, cerebral palsy, epilepsy, vision include readers, Brailled mate- muscular dystrophy, multiple sclerosis, rials, audio recordings, and other simi- cancer, heart disease, diabetes, mental lar services and devices. Auxiliary aids retardation, emotional illness, and useful for persons with impaired hear- drug addiction and alcoholism. ing include telephone handset ampli- (2) Major life activities includes func- fiers, telephones compatible with hear- tions such as caring for one’s self, per- ing aids, telecommunication devices forming manual tasks, walking, seeing, for deaf persons (TDD’s), interpreters, hearing, speaking, breathing, learning, note takers, written materials, and and working. other similar services and devices. (3) Has a record of such an impairment Complete complaint means a written means has a history of, or has been statement that contains the complain- misclassified as having, a mental or ant’s name and address and describes physical impairment that substantially the Foundation’s alleged discrimina- limits one or more major life activi- tory action in sufficient detail to in- ties.

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(4) Is regarded as having an impairment §§ 606.4–606.9 [Reserved] means— (i) Has a physical or mental impair- § 606.10 Self-evaluation. ment that does not substantially limit (a) The Foundation shall, within one major life activities but is treated by year of the effective date of this part, the Foundation as constituting such a evaluate its current policies and prac- limitation; tices, and the effects thereof, that do (ii) Has a physical or mental impair- not or may not meet the requirements ment that substantially limits major of this part, and, to the extent modi- life activities only as a result of the at- fication of any such policies and prac- titudes of others toward such impair- tices is required, the Foundation shall ment; or proceed to make the necessary modi- (iii) Has none of the impairments de- fications. fined in paragraph (1) of this definition (b) The Foundation shall provide an but is treated by the Foundation as opportunity to interested persons, in- having such an impairment. cluding individuals with handicaps or Qualified individual with handicaps organizations representing individuals means— with handicaps, to participate in the (1) With respect to any Foundation self-evaluation process by submitting comments (both oral and written). program or activity under which a person is required to perform services or (c) The Foundation shall, for at least three years following completion of the to achieve a level of accomplishment, evaluation required under paragraph an individual with handicaps who (a) of this section, maintain on file and meets the essential eligibility require- make available for public inspection: ments and who can achieve the purpose (1) A list of the interested persons of the program or activity without who made comments; modifications in the program or activ- (2) A description of areas examined ity that the Foundation can dem- and any problems identified; and onstrate would result in a fundamental alteration in its nature; (3) A description of any modifications made. (2) With respect to any other program or activity, an individual with § 606.11 Notice. handicaps who meets the essential eligibility requirements for participation The Foundation shall make available in, or receipt of benefits from, that pro- to employees, applicants, participants, gram or activity; and beneficiaries, and other interested persons such information regarding the (3) Qualified handicapped person as provisions of this part and its applica- that term is defined for purposes of em- bility to the programs or activities ployment in 29 CFR 1613.702(f), which is conducted by the Foundation and make made applicable to this part by § 606.40. such information available to them in Section 504 means section 504 of the such manner as the Director of the Rehabilitation Act of 1973 (Pub. L. 93– Foundation finds necessary to apprise 112, 87 Stat. 394 (29 U.S.C. 794)), as such persons of the protections against amended by the Rehabilitation Act discrimination assured them by section Amendments of 1974 (Pub. L. 93–516, 88 504 and this regulation. Stat. 1617); and the Rehabilitation, Comprehensive Services, and Develop- §§ 606.12–606.29 [Reserved] mental Disabilities Amendments of 1978 (Pub. L. 95–602, 92 Stat. 2955); the § 606.30 General prohibitions against Rehabilitation Act Amendments of 1986 discrimination. (Pub. L. 99–506, 100 Stat. 1810); and the (a) No qualified individual with Civil Rights Restoration Act of 1987 handicaps shall, on the basis of handi- (Pub. L. 100–259, 102 Stat. 28). As used cap, be excluded from participation in, in this part, section 504 applies only to be denied the benefits of, or otherwise programs or activities conducted by be subjected to discrimination under Executive agencies and not to federally any program or activity conducted by assisted programs. the Foundation.

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(b)(1) The Foundation, in providing (4) The Foundation may not, in de- any aid, benefit, or service, may not, termining the site or location of a fa- directly or through contractual, licens- cility, make selections the purpose or ing, or other arrangements, on the effect of which would— basis of handicap— (i) Exclude qualified individuals with (i) Deny a qualified individual with handicaps from, deny them the benefits handicaps the opportunity to partici- of, or otherwise subject them to dis- pate in or benefit from the aid, benefit, crimination under any program or ac- or service; tivity conducted by the Foundation; or (ii) Afford a qualified individual with (ii) Defeat or substantially impair handicaps an opportunity to partici- the accomplishment of the objectives pate in or benefit from the aid, benefit, of a program or activity with respect or service that is not equal to that af- to individuals with handicaps. forded others; (5) The Foundation, in the selection (iii) Provide a qualified individual of procurement contractors, may not with handicaps with an aid, benefit, or use criteria that subject qualified indi- service that is not as effective in af- viduals with handicaps to discrimina- fording equal opportunity to obtain the tion on the basis of handicap. same result, to gain the same benefit, (c) The exclusion of nonhandicapped or to reach the same level of achieve- persons from the benefits of a program ment as that provided to others; limited by Federal statute or Execu- (iv) Provide different or separate aid, tive order to individuals with handi- benefits, or services to individuals with caps or the exclusion of a specific class handicaps or to any class of individuals of individuals with handicaps from a with handicaps than is provided to oth- program limited by Federal statute or ers unless such action is necessary to Executive order to a different class of provide qualified individuals with individuals with handicaps is not pro- handicaps with aid, benefits, or serv- hibited by this part. ices that are as effective as those pro- (d) The Foundation shall administer vided to others; programs and activities in the most in- (v) Deny a qualified individual with tegrated setting appropriate to the handicaps the opportunity to partici- needs of qualified individuals with pate as a member of planning or advi- handicaps. sory boards; or (vi) Otherwise limit a qualified indi- §§ 606.31–606.39 [Reserved] vidual with handicaps in the enjoyment of any right, privilege, advan- § 606.40 Employment. tage, or opportunity enjoyed by others No qualified individual with handi- receiving the aid, benefit, or service. caps shall, on the basis of handicap, be (2) The Foundation may not deny a subjected to discrimination in employ- qualified individual with handicaps the ment under any program or activity opportunity to participate in programs conducted by the Foundation. The defi- or activities that are not separate or nitions, requirements, and procedures different, despite the existence of per- of section 501 of the Rehabilitation Act missibly separate or different programs of 1973 (29 U.S.C. 791), as established by or activities. the Equal Employment Opportunity (3) The Foundation may not, directly Commission in 29 CFR part 1613, shall or through contractual or other ar- apply to employment in federally con- rangements, utilize criteria or methods ducted programs or activities. of administration the purpose or effect of which would— §§ 606.41–606.49 [Reserved] (i) Subject qualified individuals with handicaps to discrimination on the § 606.50 Program accessibility: Dis- basis of handicap; or crimination prohibited. (ii) Defeat or substantially impair ac- Except as otherwise provided in complishment of the objectives of a § 606.51, no qualified individual with program or activity with respect to in- handicaps shall, because the Founda- dividuals with handicaps. tion’s facilities are inaccessible to or

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unusable by individuals with handi- ties and construction of new facilities, caps, be denied the benefits of, be ex- use of accessible rolling stock, or any cluded from participation in, or other- other methods that result in making wise be subjected to discrimination its programs or activities readily ac- under any program or activity con- cessible to and usable by individuals ducted by the Foundation. with handicaps. The Foundation is not required to make structural changes in § 606.51 Program accessibility: Exist- existing facilities where other methods ing facilities. are effective in achieving compliance (a) General. The Foundation shall op- with this section. The Foundation, in erate each program or activity so that making alterations to existing build- the program or activity, when viewed ings, shall meet accessibility require- in its entirety, is readily accessible to ments to the extent compelled by the and usable by individuals with handi- Architectural Barriers Act of 1968, as caps. This paragraph does not— amended (42 U.S.C. 4151–4157), and any (1) Necessarily require the Founda- regulations implementing it. In choos- tion to make each of its existing facili- ing among available methods for meet- ties accessible to and usable by individ- ing the requirements of this section, uals with handicaps; or the Foundation shall give priority to (2) Require the Foundation to take those methods that offer programs and any action that it can demonstrate activities to qualified individuals with would result in a fundamental alter- handicaps in the most integrated set- ation in the nature of a program or acting appropriate. tivity or in undue financial and admin- (c) Time period for compliance. The istrative burdens. In those cir- Foundation shall comply with the obli- cumstances where Foundation per- gations established under this section sonnel believe that the proposed action within 60 days of the effective date of would fundamentally alter the program this part except that where structural or activity or would result in undue fi- changes in facilities are undertaken, nancial and administrative burdens, such changes shall be made within the Foundation has the initial burden three years of the effective date of this of establishing that compliance with part, but in any event as expeditiously § 606.51(a) would result in such alter- as possible. ation or burdens. The decision that compliance would result in such alter- (d) Transition plan. In the event that ation or burdens must be made by the structural changes to facilities will be Foundation Director or his or her des- undertaken to achieve program acces- ignee after considering all Foundation sibility, the Foundation shall develop, resources available for use in the fund- within six months of the effective date ing and operation of the conducted proof this part, a transition plan setting gram or activity, and must be accom- forth the steps necessary to complete panied by a written statement of the such changes. The Foundation shall reasons for reaching that conclusion. If provide an opportunity to interested an action would result in such an alter- persons, including individuals with ation or burdens, the Foundation shall handicaps or organizations rep- take any other action that would not resenting individuals with handicaps, result in such an alteration or such to participate in the development of burdens but would nevertheless ensure the transition plan by submitting com- that individuals with handicaps receive ments (both oral and written). A copy the benefits and services of the proof the transition plan shall be made gram or activity. available for public inspection. The (b) Methods. The Foundation may plan shall, at a minimum— comply with the requirements of this (1) Identify physical obstacles in the section through such means as redesign Foundation’s facilities that limit the of equipment, reassignment of services accessibility of its programs or activi- to accessible buildings, assignment of ties to individuals with handicaps; aides to beneficiaries, home visits, de- (2) Describe in detail the methods livery of services at alternate acces- that will be used to make the facilities sible sites, alteration of existing facili- accessible;

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(3) Specify the schedule for taking with impaired vision or hearing, can the steps necessary to achieve compli- obtain information as to the existence ance with this section and, if the time and location of accessible services, ac- period of transition plan is longer than tivities, and facilities. one year, identify steps that will be (c) The Foundation shall provide taken during each year of the transi- signage at a primary entrance to each tion period; and of its inaccessible facilities, directing (4) Indicate the official responsible users to a location at which they can for implementation of the plan. obtain information about accessible facilities. The international symbol for § 606.52 Program accessibility: New accessibility shall be used at each pri- construction and alterations. mary entrance of an accessible facility. Each building or part of a building (d) This section does not require the that is constructed or altered by, on Foundation to take any action that it behalf of, or for the use of the Founda- can demonstrate would result in a fun- tion shall be designed, constructed, or damental alteration in the nature of a altered so as to be readily accessible to program or activity or in undue finan- and usable by individuals with handi- cial and administrative burdens. In caps. The definitions, requirements, those circumstances where Foundation and standards of the Architectural Bar- personnel believe that the proposed ac- riers Act (42 U.S.C. 4151–4157), as estab- tion would fundamentally alter the lished in 41 CFR 101–19.600 to 101–19.607, program or activity or would result in apply to buildings covered by this sec- undue financial and administrative tion. burdens, the Foundation has the initial burden of establishing that compliance §§ 606.53–606.59 [Reserved] with § 606.60 would result in such alteration or burdens. The decision that § 606.60 Communications. compliance would result in such alter- (a) The Foundation shall take appro- ation or burdens must be made by the priate steps to ensure effective commu- Foundation Director or his or her des- nication with applicants, participants, ignee after considering all Foundation personnel of other Federal entities, and resources available for use in the fund- members of the public. ing and operation of the conducted pro- (1) The Foundation shall furnish ap- gram or activity and must be accom- propriate auxiliary aids where nec- panied by a written statement of the essary to afford an individual with reasons for reaching that conclusion. If handicaps an equal opportunity to par- an action required to comply with this ticipate in, and enjoy the benefits of, a section would result in such an alter- program or activity conducted by the ation or such burdens, the Foundation Foundation. shall take any other action that would (i) In determining what type of auxil- not result in such an alteration or such iary aid is necessary, the Foundation burdens but would nevertheless ensure shall give primary consideration to the that, to the maximum extent possible, requests of the individual with handi- individuals with handicaps receive the caps. benefits and services of the program or (ii) The Foundation need not provide activity. individually prescribed devices, readers for personal use or study, or other de- §§ 606.61–606.69 [Reserved] vices of a personal nature. (2) Where the Foundation commu- § 606.70 Complaint procedures. nicates with applicants and bene- (a) Except as provided in paragraph ficiaries by telephone, telecommuni- (b) of this section, this section applies cations devices for deaf persons to all allegations of discrimination on (TDD’s) or equally effective tele- the basis of handicap in programs or communication systems shall be used activities conducted by the Founda- to communicate with persons with im- tion. paired hearing. (b) The Foundation shall process (b) The Foundation shall ensure that complaints alleging violations of sec- interested persons, including persons tion 504 with respect to employment

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according to the procedures established dation. Such appeals must be in writ- by the Equal Employment Opportunity ing and must state fully the basis for Commission in 29 CFR part 1613 pursu- the appeal, proposed alternative find- ant to section 501 of the Rehabilitation ings of fact, conclusions of law, or rem- Act of 1973 (29 U.S.C. 791). edies. They must be sent (as evidenced (c) The Director, Office of Equal Op- by an appropriate postmark or other portunity Programs (OEOP), shall co- satisfactory evidence) within 90 days ordinate implementation of this sec- after the date of receipt from the Foun- tion. dation of the letter described in para- (d) Persons wishing to submit com- graph (f) of this section. The Founda- plaints should submit complete com- tion may extend this time for good plaints (see § 606.03) to the Office of cause. Equal Opportunity Programs, National (2) The Director shall notify the com- Science Foundation, 4201 Wilson Boule- plainant of the results of the appeal vard, Arlington, VA 22230. In accord- within 30 days of the receipt of the ap- ance with the procedures outlined peal. If the Director determines that below, the Foundation will accept all additional information is needed from complete complaints and will either the complainant, the Director shall undertake to investigate them if they have 30 days from the date such addi- are within the jurisdiction of the Foun- tional information is received from the dation and submitted within 180 days complainant to make a determination of the alleged acts of discrimination or on the appeal. in the case of complaints not within (h) The time limits for sending a let- the jurisdiction of the Foundation, it ter to the complainant in paragraph (f) shall promptly notify the complainant and for deciding an appeal in paragraph and shall make reasonable efforts to (g)(2) of this section may be extended refer the complaint to the appropriate with the permission of the Assistant government entity. Complete com- Attorney General. plaints submitted after the 180 day [54 FR 4791, Jan. 31, 1989, as amended at 59 time limit may also be acted upon at FR 37437, July 22, 1994] the discretion of the Foundation if good cause for the delay in submission §§ 606.71–606.99 [Reserved] is found. (e) The Foundation shall notify the PART 607—SALARY OFFSET Architectural and Transportation Bar- riers Compliance Board upon receipt of Sec. any complaint alleging that a building 607.1 Purpose and scope. or a facility that is subject to the Ar- 607.2 Definitions. chitectural Barriers Act of 1968, as 607.3 Applicability. amended (42 U.S.C. 4151–4157), is not 607.4 Notice requirements before offset. readily accessible to and usable by in- 607.5 Hearing. 607.6 Written decision. dividuals with handicaps. 607.7 Coordinating offset with another Fed- (f) Within 180 days of the receipt of a eral agency. complete complaint, the Director, Of- 607.8 Procedures for salary offset. fice of Equal Opportunity Programs 607.9 Refunds. (OEOP), or his or her designee or dele- 607.10 Statute of limitations. gate, will investigate the complaint 607.11 Non-waiver of rights. and shall notify the complainant of the 607.12 Interest, penalties, and administrative costs. results of the investigation in a letter containing— AUTHORITY: 5 U.S.C. 5514; E.O. 12107, 3 CFR, (1) Findings of fact and conclusions 1978 Comp., p. 264; 5 CFR part 550, subpart K. of law; SOURCE: 58 FR 68769, Dec. 29, 1993, unless (2) A description of a remedy for each otherwise noted. violation found; and (3) A notice of a right to appeal to § 607.1 Purpose and scope. the Director of the Foundation. (a) This part provides procedures for (g)(1) A complainant may appeal the collection by administrative offset findings of fact, conclusions of law, or of a federal employee’s salary without remedies to the Director of the Foun- his or her consent to satisfy certain

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debts owed to the Federal government. Rate Commission; a military depart- This part applies to all Federal em- ment as defined at 5 U.S.C. 102; an ployees who owe debts to the National agency or court in the judicial branch; Science Foundation (NSF) and to cur- an agency of the legislative branch, in- rent employees of NSF who owe debts cluding the U.S. Senate and House of to other Federal agencies. This part Representatives; and other independent does not apply when the employee con- establishments that are entities of the sents to recovery from his or her cur- Federal government. rent pay account. Certification means a written debt (b) This part does not apply to debts claim received from a creditor agency or claims arising under: which requests the paying agency to (1) The Internal Revenue Code of 1954, offset the salary of an employee. as amended, 26 U.S.C. 1 et seq.; Chief Financial Officer means the (2) The Social Security Act, 42 U.S.C. Chief Financial Officer of NSF or such 301 et seq.; other official of NSF who is designated (3) The tariff laws of the United by the Chief Financial Officer to deter- States; or mine whether an employee is indebted (4) Any case where a collection of a to the United States and to take action debt by salary offset is explicitly pro- to collect such debts. vided for or prohibited by another stat- Creditor agency means an agency of ute. the Federal Government to which the (c) This part does not apply to any debt is owed. adjustment to pay arising out of an Debt means an amount owed by a employee’s selection of coverage or a Federal employee to the United States change in coverage under a Federal from sources which include loans in- benefits program requiring periodic de- sured or guaranteed by the United ductions from pay if the amount to be States and all other amounts due the recovered was accumulated over four United States from fees, leases, rents, pay periods or less. royalties, services, sales of real or per- (d) This part does not preclude the sonal property, overpayments, pen- compromise, suspension, or termi- alties, damages, interests, fines, for- nation of collection action where ap- feitures (except those arising under the propriate under the standards imple- Uniform Code of Military Justice), and menting the Federal Claims Collection all other similar sources. Act, 31 U.S.C. 3711 et seq., and 4 CFR Disposable pay means the amount parts 101 through 105. that remains from an employee’s Fed- (e) This part does not preclude an eral pay after required deductions for employee from requesting waiver of an social security, Federal, State or local overpayment under 5 U.S.C. 5584, 10 income tax, health insurance pre- U.S.C. 2774, or 32 U.S.C. 716, or in any miums, retirement contributions, life way questioning the amount or valid- insurance premiums, Federal employ- ity of the debt by submitting a subse- ment taxes, and any other deductions quent claim to the General Accounting that are required to be withheld by Office. This part does not preclude an law. employee from requesting a waiver Hearing official means an individual pursuant to other statutory provisions responsible for conducting a hearing applicable to the particular debt being with respect to the existence or collected. amount of a debt claimed, or the repay- (f) Matters not addressed in this part ment schedule of a debt, and who ren- should be reviewed in accordance with ders a decision on the basis of such the Federal Claims Collection Stand- hearing. A hearing official may not be ards at 4 CFR 101.1 et seq. under the supervision or control of the Chief Financial Officer or of persons § 607.2 Definitions. having supervision or control over the For the purposes of this part the fol- Chief Financial Officer. lowing definitions will apply: NSF means the National Science Agency means an executive agency as Foundation. defined at 5 U.S.C. 105, including the Paying agency means the agency that U.S. Postal Service and the U.S. Postal employs the individual who owes the

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debt and authorizes the payment of his ence or the amount of the debt, or the or her current pay. terms of the repayment schedule; Salary offset means an administrative (8) The procedures and time period offset to collect a debt pursuant to 5 for petitioning for a hearing; U.S.C. 5514 by deduction(s) at one or (9) A statement that a timely filing more officially established pay inter- of a petition for a hearing will stay the vals from the current pay account of commencement of collection pro- an employee without his or her con- ceedings; sent. (10) A statement that a final decision on the hearing (if requested) will be § 607.3 Applicability. issued by the hearing official not later The regulations in this part are to be than 60 days after the filing of the peti- followed when: tion requesting the hearing unless the (a) NSF is owed a debt by an indi- employee requests and the hearing offi- vidual who is a current employee of the cial grants a delay in the proceedings; NSF; or (11) A statement that knowingly (b) NSF is owed a debt by an indi- false or frivolous statements, represen- vidual currently employed by another tations, or evidence may subject the Federal agency; or employee to appropriate disciplinary (c) NSF employs an individual who procedures and/or statutory penalties; owes a debt to another Federal agency. (12) A statement of other rights and remedies available to the employee § 607.4 Notice requirements before off- under statutes or regulations gov- set. erning the program for which the col- (a) Salary offset shall not be made lection is being made; against an employee’s pay unless the (13) Unless there are contractual or employee is provided with written no- statutory provisions to the contrary, a tice signed by the Chief Financial Offi- statement that amounts paid on or de- cer of the debt at least 30 days before ducted for the debt which are later salary offset commences. waived or found not owed to the United (b) The written notice shall contain: States will be promptly refunded to the (1) A statement that the debt is owed employee; and and an explanation of its nature and (14) A statement that the proceedings amount; regarding such debt are governed by (2) The agency’s intention to collect section 5 of the Debt Collection Act of the debt by deducting from the employ- 1982 (5 U.S.C. 5514). ee’s current disposable pay account; (3) The amount, frequency, proposed § 607.5 Hearing. beginning date, and duration of the in- (a) Request for hearing. (1) An em- tended deduction(s); ployee may file a petition for an oral or (4) An explanation of interest, pen- paper hearing in accordance with the alties, and administrative charges, in- instructions outlined in the agency’s cluding a statement that such charges notice to offset. will be assessed unless excused in ac- (2) A hearing may be requested by fil- cordance with the Federal Claims Col- ing a written petition addressed to the lections Standards at 4 CFR 101.1; Chief Financial Officer stating why the (5) The employee’s right to inspect, employee disputes the existence or request, and receive a copy of govern- amount of the debt or, in the case of an ment records relating to the debt; individual whose repayment schedule (6) The employee’s opportunity to es- has been established other than by a tablish a written schedule for the vol- written agreement, concerning the untary repayment of the debt in lieu of terms of the repayment schedule. The offset; petition for a hearing must be received (7) The employee’s right to an oral by the Chief Financial Officer not later hearing or a determination based on a than fifteen (15) calendar days after the review of the written record (‘‘paper employee’s receipt of the offset notice, hearing’’) conducted by an impartial or notice of the terms of the payment hearing official concerning the exist- schedule, unless the employee can show

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good cause for failing to meet the fil- (b) When the NSF is the creditor ing deadline. agency and the employee is in the proc- (b) Hearing procedures. (1) The hearing ess of separating from the Federal serv- will be presided over by an impartial ice, the NSF must submit its debt hearing official. claim to the paying agency as provided (2) The hearing shall conform to pro- in this part. The paying agency must cedures contained in the Federal certify the total amount collected, give Claims Collection Standards, 4 CFR a copy of the certification to the em- 102.3(c). The burden shall be on the employee, and send a copy of the certifi- ployee to demonstrate that the exist- cation and notice of the employee’s ence or the amount of the debt is in separation to the NSF. If the paying error. agency is aware that the employee is entitled to Civil Service Retirement § 607.6 Written decision. and Disability Fund or other similar (a) The hearing official shall issue a payments, it must certify to the agen- final written opinion no later than 60 cy responsible for making such pay- days after the filing of the petition. ments that the debtor owes a debt, in- (b) The written opinion will include a cluding the amount of the debt, and statement of the facts presented to that the provisions of 5 CFR 550.1108 demonstrate the nature and origin of have been followed. the alleged debt; the hearing official’s (c) When the NSF is the creditor analysis, findings, and conclusions; the agency and the employee has already amount and validity of the debt, if any; separated from Federal service and all and the repayment schedule, if any. payments due from the paying agency have been paid, the Chief Financial Of- § 607.7 Coordinating offset with another Federal agency. ficer may request, unless otherwise prohibited, that money payable to the (a) When the NSF is the creditor employee from the Civil Service Re- agency and the Chief Financial Officer tirement and Disability Fund or other determines that an employee of an- similar funds be collected by adminis- other agency (i.e., the paying agency) trative offset. owes a debt to the NSF, the Chief Fi- (d) When the NSF is the paying agen- nancial Officer shall, as appropriate: cy, upon receipt of a properly certified (1) Certify in writing to the paying debt claim from another agency, de- agency that the employee owes the ductions will be scheduled to begin at debt, the amount and basis of the debt, the next established pay interval. The the date on which payment was due, employee must receive written notice and the date the Government’s right to that NSF has received a certified debt collect the debt accrued, and that this part 607 has been approved by the Of- claim from the creditor agency, the fice of Personnel Management. amount of the debt, the date salary off- (2) Unless the employee has con- set will begin, and the amount of the sented to salary offset in writing or deduction(s). NSF shall not review the signed a statement acknowledging re- merits of the creditor agency’s deter- ceipt of the required procedures, and mination of the validity or the amount the written consent is sent to the pay- of the certified claim. If the employee ing agency, the Chief Financial Officer transfers to another agency after the must advise the paying agency of the creditor agency has submitted its debt action(s) taken under this part 607, and claim to NSF and before the debt is the date(s) they were taken. collected completely, NSF must certify (3) Request the paying agency to col- the amount collected. One copy of the lect the debt by salary offset. If deduc- certification must be furnished to the tions must be made in installments, employee. A copy must be furnished to the Chief Financial Officer may rec- the creditor agency with notice of the ommend to the paying agency the employee’s transfer. amount or percentage of disposable pay to be collected in each installment; § 607.8 Procedures for salary offset. (4) Arrange for a hearing upon the (a) Deductions to liquidate an em- proper petitioning by the employee. ployee’s debt will be by the method and

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in the amount stated in the Chief Fi- § 607.11 Non-waiver of rights. nancial Officer’s notice of intention to An employee’s involuntary payment offset as provided in § 607.4. Debts will of all or any part of a debt collected be collected in one lump sum where under the regulations in this part will possible. If the employee is financially not be construed as a waiver of any unable to pay in one lump sum, collec- rights that the employee may have tion must be made in installments. under 5 U.S.C. 5514 or any other provi- (b) Debts will be collected by deduc- sion of law. tion at officially established pay intervals from an employee’s current pay § 607.12 Interest, penalties, and admin- account unless alternative arrange- istrative costs. ments for repayment are made. Charges may be assessed on a debt (c) Installment deductions will be for interest, penalties, and administra- made over a period not greater than tive costs in accordance with 31 U.S.C. the anticipated period of employment. 3717 and the Federal Claims Collection The size of installment deductions Standards, 4 CFR 101.1. must bear a reasonable relationship to the size of the debt and the employee’s ability to pay. The deduction for the PART 608—CLAIMS COLLECTION pay intervals for any period must not AND ADMINISTRATIVE OFFSET exceed 15% of disposable pay unless the employee has agreed in writing to a de- Sec. duction of a greater amount. 608.1 Purpose and scope. 608.2 Collection, compromise, and use of (d) Unliquidated debts may be offset consumer reporting agencies. against any financial payment due to a 608.3 Administrative offset. separated employee including but not 608.4 Reductions of tax refunds. limited to final salary or leave pay- AUTHORITY: 31 U.S.C. 3711, 3716, 3718 and ment in accordance with 31 U.S.C. 3716. 3720A. § 607.9 Refunds. SOURCE: 58 FR 68772, Dec. 29, 1993, unless otherwise noted. (a) NSF will promptly refund to an employee any amounts deducted to sat- § 608.1 Purpose and scope. isfy debts owed to NSF when the debt (a) This part sets forth policies and is waived, found not owed to NSF, or procedures for the collection and com- when directed by an administrative or promise claims and the administrative judicial order. offset of claims by the National (b) Another creditor agency will Science Foundation (NSF) pursuant to promptly return to NSF any amounts 31 U.S.C. 3711, 3716, 3718 and 3720A. It is deducted by NSF to satisfy debts owed not intended to limit or govern the to the creditor agency when the debt is rights of the NSF or the United States waived, found not owed, or when di- to collect, compromise, or administra- rected by an administrative or judicial tively offset debts or claims under order. other authority and procedures that (c) Unless required by law, refunds may be legally available to it. under this section shall not bear inter- (b) Matters not addressed in this part est. should be reviewed and handled in accordance with applicable statutory pro- § 607.10 Statute of limitations. visions and the Federal Claims Collec- If a debt has been outstanding for tion Standards issued jointly by the more than 10 years after NSF’s right to Attorney General and the Comptroller collect the debt first accrued, the agen- General (4 CFR parts 101 through 105). cy may not collect by salary offset un- (c) Any action other than the less facts material to the Government’s issuance of regulations specifically re- right to collect were not known and quired to be done by the head of the could not reasonably have been known agency by any of the statutes or regu- by the official or officials who were lations referred to in paragraphs (a) charged with the responsibility for dis- and (b) of this section shall be done on covery and collection of such debts. behalf of NSF by its Chief Financial

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Officer or by those to whom the Chief the individual shall be consistent with Financial Officer delegates authority. the provisions of 4 CFR 102.3(c). If NSF This is not intended to prevent the does not have a current address for the Chief Financial Officer from issuing ad- individual in its files, it will take rea- ditional internal procedures and guid- sonable action to locate the individual, ance consistent with this part. but if unsuccessful will mail the notice to the individual’s last known address. § 608.2 Collection, compromise, and NSF will disclose information only to a use of consumer reporting agencies. consumer reporting agency that gives (a) Subject to the specific limitations satisfactory assurances that it is com- and procedures of 31 U.S.C. 3711 and in plying with all laws of the United accordance with the applicable provi- States relating to providing consumer sions of the Federal Claims Collection credit information. The information Standards, NSF, acting through its provided by NSF shall be limited to the Chief Financial Officer or those to type of information described in 31 whom he or she delegates authority or U.S.C. 3711(f)(1)(F). Moreover, NSF will assigns responsibilities, shall try to not provide such information until it collect claims of the United States has established internal procedures to Government for money or property disclose promptly to a consumer re- arising out of the activities of NSF or porting agency to which disclosure is that are referred to NSF and may com- made of any substantial changes in the promise or suspend or end collection condition or amount of the claim and action of certain claims. In making de- to verify or correct promptly informa- mands for payment, NSF will follow tion about the claim on request of a the guidance set forth at 4 CFR 102.2. consumer reporting agency for In appropriate cases, as authorized by verification of information disclosed. and subject to 31 U.S.C. 3718 and 4 CFR (c) If in response to the notice re- 102.6, NSF may contract for collection ferred to in paragraph (b) of this sec- services. Before compromising or sus- tion, the individual repays or agrees in pending or ending the collection of a writing with NSF to a repayment plan, claim in excess of $5,000, the matter the information will not be disclosed to shall be referred to the NSF Office of a consumer reporting agency. If in re- General Counsel for legal review. sponse to the notice referred to in (b) When trying to collect a claim of paragraph (b) the individual requests a the Government (except for claims review or reconsideration of the claim, under the Internal Revenue Code of information shall not be disclosed to 1986, 26 U.S.C. 1 et seq.), NSF may dis- the consumer reporting agency until close to a consumer reporting agency such a review is provided. information from a system of records that an individual is responsible for a (d) The review referred to in para- claim if (1) a notice published pursuant graph (c) of this section shall be based to 5 U.S.C. 552a(3)(4) indicates that in- only on the written documentation in formation in the system of records may the file, including any additional writ- be disclosed to a consumer reporting ten information provided by the indi- agency that an individual is respon- vidual in response to the notice re- sible for a claim and (2) if the Chief Fi- ferred to in paragraph (b). A written nancial Officer of NSF decides that the summary briefly describing the nature claim is valid and overdue. Such disclo- of the review performed and the con- sures to a consumer reporting agency clusion reached shall be made. The will be done only under the conditions written summary and conclusion shall and procedures specified in 31 U.S.C. be referred to the NSF Office of Gen- 3711(f) and in the Federal Claims Col- eral Counsel for legal review. After lections Standards. Specifically, before legal review, a copy of the written NSF provides the information to the summary shall be sent to the indi- consumer reporting agency, the individual. vidual will be given the notice required by 31 U.S.C. 3711(f)(1)(C); and in accord- § 608.3 Administrative offset. ance with 4 CFR 102.5(c), the right of (a) If NSF is unable to collect a claim administrative review to be provided to from a person after trying to do so in

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accordance with § 608.2, NSF may col- writing that (i) the debtor owes the lect the claim by administrative offset United States a debt and the amount of subject to the procedures and limita- the debt; (ii) NSF has complied with tions of 31 U.S.C. 3716 and the applica- applicable regulations and procedures; ble provisions of the Federal Claims and (iii) NSF has followed the require- Collection Standards. Determinations ments of the Federal Claims Collection to pursue administrative offset shall be Standards as made applicable by this made on a case-by-case basis taking section. Once NSF decides to request into account the considerations speci- offset from a Federal retirement fund, fied at 31 U.S.C. 3716(b) and 4 CFR it will make the request as soon as 102.3(a). Before employing administra- practical after completion of the appli- tive offset, NSF will comply with the cable procedures in order that the fund notice, hearing, review, or other proce- servicing agency may identify and flag dural requirements of 31 U.S.C. 3716(a) the debtor’s account in anticipation of and 4 CFR 102.3(b) and (c). Further- the time when the debtor requests or more, before an administrative offset is becomes eligible to receive payments taken by NSF pursuant to the author- from the fund and to ensure that offset ity of this part 608, the matter shall be will be initiated prior to the expiration referred to the Office of General Coun- of the statute of limitations. sel for legal review to ensure that the (3) If NSF collects part or all of the required procedures have been fol- debt by other means before deductions lowed. are made or completed pursuant to this (b) When another agency requests paragraph (c), NSF shall act promptly NSF to administratively offset a claim to modify or terminate its request for owing to that agency, NSF will nor- offset. mally comply with such request if the (4) This paragraph (c) does not re- requesting agency has provided the cer- quire or authorize the fund servicing tification required by 4 CFR 102.3(f) and agency to review the merits of (i) offset would not be contrary to law. NSF’s determination with respect to Before imposing administrative offsets the amount and validity of the debt, at the request of another agency under (ii) NSF’s determination as to waiver this part 608, the matter shall be re- under an applicable statute, or (iii) ferred to the NSF Office of General NSF’s determination to provide or not Counsel for legal review. provide an oral hearing. (c)(1) In appropriate cases, NSF may request another agency to administra- (d) No collection by administrative tively setoff a claim owed to NSF. Be- offset shall be made on any debt that fore making the certification to the has been outstanding for more than ten other agency required by 4 CFR 102.3(f), years unless facts material to the Gov- the matter shall be referred to the NSF ernment’s right to collect the debt Office of General Counsel for legal re- were not known, and reasonably could view. not have been known, by the official or (2) Unless otherwise prohibited by officials responsible for discovering the law, NSF may request that moneys debt. that are due and payable to a debtor (e) Administrative offset under this from the Civil Service Retirement and section will not be initiated against: Disability Fund, the Foreign Service (1) A debt in which administrative Retirement Fund or any other Federal offset of the type of debt involved is ex- retirement fund be administratively plicitly provided for or prohibited by a offset in reasonable amounts in order statutes other than 31 U.S.C. 3716, in- to collect in one full payment or a cluding debts subject to the Salary off- minimal number of payments debts set procedures at 45 CFR part 607; owed the United States by the debtor. (2) Debts owed by other agencies of Such requests shall be made to the ap- the United States or by any State or propriate officials of the respective local Government; or fund servicing agency in accordance (3) Debts arising under the Internal with such regulations as may be pre- Revenue Code of 1954; the Social Secu- scribed by that agency. The requests rity Act; or the tariff laws of the for administrative offset will certify in United States.

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§ 608.4 Reductions of tax refunds. (c) NSF will make a request for reduction of an IRS tax refund only after (a) In accordance with regulations the NSF determines that an amount is and guidance issued by the Secretary owed and past-due and provides the of the Treasury at 26 CFR 301.6402–6 debtor with 60 days written notice. and the requirements of 31 U.S.C. 3720A, NSF will participate in the Fed- NSF’s notice of intention to collect by eral Tax Refund Offset Program for off- IRS tax refund offset (Notice of Intent) set against income tax refunds of per- will state: sons owing past due legally enforceable (1) The amount of the debt; debts to NSF. (2) That unless the debt is repaid (b) For purposes of this section, a within 60 days from the date of the past-due legally enforceable debt ref- NSF’s Notice of Intent, NSF intends to erable to the IRS is a debt which is collect the debt by requesting the IRS owed to the United States and: to reduce any amounts payable to the (1) Except in the case of a judgment debtor as refunds of Federal taxes paid debt, has been delinquent for at least by an amount equal to the amount of three months but has not been delin- the debt and all accumulated interest quent for more than ten years at the and other charges; time the offset is made; (3) That the debtor has a right to (2) Cannot be currently collected pur- present evidence that all or part of the suant to the salary offset provisions of debt is not past-due or legally enforce- 5 U.S.C. 5514(a)(1); able; and (3) Is ineligible for administrative (4) A mailing address for forwarding offset under 31 U.S.C. 3716(a) by reason any written correspondence and a con- of 31 U.S.C. 3716(c)(2) or cannot be col- tact name and phone number for any lected by administrative offset under 31 questions. U.S.C. 3716(a) by NSF against amounts (d) A debtor who receives a Notice of payable to or on behalf of the debtor by Intent has the right to present evi- or on behalf of NSF; dence that all or part of the debt is not (4) With respect to which NSF has past-due or not legally enforceable. To notified or has made a reasonable at- exercise this right, the debtor must: tempt to notify the taxpayer that the (1) Send a written request for a re- debt is past-due and, unless repaid view of the evidence to the address pro- within 60 days thereafter, the debt will vided in the notice. be referred to the IRS for offset against (2) State in the request the amount any overpayment of tax; disputed and the reasons why the debt- (5) With respect to which NSF has or believes that the debt is not past- given the taxpayer at least 60 days due or is not legally enforceable. from the date of notification to present (3) Include with the request any doc- evidence that all or part of the debt is uments which the debtor wishes to be not past-due or legally enforceable, has considered or state that additional in- considered the evidence presented by formation will be submitted within the such taxpayer, and has determined remainder of the 60-day period. that an amount of such debt is past- (e) The failure of a debtor to respond due and legally enforceable; as provided in paragraph (d) of this sec- (6) Has been disclosed by NSF to a tion will result in an automatic refer- consumer reporting agency as author- ral of the debt to the IRS without fur- ized by 31 U.S.C. 3711(f), unless a con- ther action by NSF. If the debtor re- sumer reporting agency would be pro- sponds, NSF will consider all available hibited from using such information by evidence related to the debt and issue a 15 U.S.C. 1681c, or unless the amount of written determination, including sup- the debt does not exceed $100.00; porting rationale, whether its prior de- (7) Is at least $25.00; termination that the debt is past-due (8) All other requirements of 31 and legally enforceable is sustained, U.S.C. 3720A and the Internal Revenue amended, or canceled. Before this de- Service regulations at 26 CFR 301.6402– termination is made the matter shall 6 relating to the eligibility of a debt for be referred to the NSF Office of Gen- tax return offset have been satisfied. eral Counsel for legal review. NSF will

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give prompt notification of this deter- Federal financial assistance by way of mination to the debtor. insurance or guaranty contract, (b) money paid, property transferred, or PART 611—NONDISCRIMINATION other assistance extended before the ef- IN FEDERALLY-ASSISTED PRO- fective date of this part, (c) any assistance to any individual who is the ulti- GRAMS OF THE NATIONAL mate beneficiary, or (d) any employ- SCIENCE FOUNDATION—EFFEC- ment practice, under any such pro- TUATION OF TITLE VI OF THE gram, of any employer, employment CIVIL RIGHTS ACT OF 1964 agency, or labor organization, except to the extent described in § 611.3. The Sec. fact that a type of Federal financial as- 611.1 Purpose. sistance is not listed in the appendix 611.2 Application of part. shall not mean, if title VI of the Act is 611.3 Discrimination prohibited. otherwise applicable, that a program is 611.4 Assurances required. not covered. Other types of Federal fi- 611.5 Illustrative applications. 611.6 Compliance information. nancial assistance under statutes now 611.7 Conduct of investigations. in force or hereafter enacted may be 611.8 Procedure for effecting compliance. added to this list by notice published in 611.9 Hearings. the FEDERAL REGISTER. 611.10 Decisions and notices. [29 FR 16305, Dec. 4, 1964, as amended at 68 611.11 Judicial review. FR 51382, Aug. 26, 2003] 611.12 Effect on other regulations; forms and instructions. § 611.3 Discrimination prohibited. 611.13 Definitions. APPENDIX A TO PART 611 (a) General. No person in the United States, shall, on grounds of race, color, AUTHORITY: Sec. 11(a), National Science or national origin be excluded from Foundation Act of 1950, as amended, 42 participation in, be denied the benefits U.S.C. 1870(a); 42 U.S.C. 2000d–1. of, or be otherwise subjected to dis- SOURCE: 29 FR 16305, Dec. 4, 1964, unless crimination under any program to otherwise noted. which this part applies. (b) Specific discriminatory actions pro- § 611.1 Purpose. hibited. (1) A recipient to which this The purpose of this part is to effec- part applies may not directly or tuate the provisions of title VI of the through contractual or other arrange- Civil Rights Act of 1964 (hereafter re- ments, on the ground of race, color, or ferred to as the ‘‘Act’’) to the end that national origin: no person in the United States shall, (i) Deny an individual any service, fi- on the grounds of race, color, or na- nancial aid, or other benefit provided tional origin, be excluded from partici- under the program; pation in, be denied the benefits of, or (ii) Provide any service, financial aid, be otherwise subjected to discrimina- or other benefit to an individual which tion under any program or activity re- is different, or is provided in a different ceiving Federal financial assistance manner, from that provided to others from the National Science Foundation. under the program; (iii) Subject an individual to segrega- § 611.2 Application of part. tion or separate treatment in any mat- This part applies to any program for ter related to his receipt of any service, which Federal financial assistance is financial aid, or other benefit under authorized under a law administered by the program; the Foundation, including the types of (iv) Restrict an individual in any way Federal financial assistance listed in in the enjoyment of any advantage or appendix A of this part. It applies to privilege enjoyed by others receiving money paid, property transferred, or any service, financial aid, or other ben- other Federal financial assistance ex- efit under the program; tended after the effective date of the (v) Treat an individual differently regulation pursuant to an application from others in determining whether he approved prior to such effective date. satisfies any admission, enrollment, This part does not apply to (a) any quota, eligibility, membership or other

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requirement or condition which indi- (5) The enumeration of specific forms viduals must meet in order to be proof prohibited discrimination in this vided any service, financial aid, or paragraph and paragraph (c) of this other benefit provided under the pro- section does not limit the generality of gram; the prohibition in paragraph (a) of this (vi) Deny an individual an oppor- section. tunity to participate in the program (6) This regulation does not prohibit through the provision of services or the consideration of race, color, or na- otherwise or afford him an opportunity tional origin if the purpose and effect to do so which is different from that af- are to remove or overcome the con- forded others under the program (in- sequences of practices or impediments cluding the opportunity to participate which have restricted the availability in the program of an employee but only of, or participation in, the program or to the extent set forth in paragraph (c) activity receiving Federal financial as- of this section). sistance, on the grounds of race, color, (2) A recipient, in determining the or national origin. Where previous dis- types of services, financial aid, or other criminatory practice or usage tends, on benefits, or facilities which will be pro- the grounds of race, color, or national vided under any such program, or the origin, to exclude individuals from par- class of individuals to whom, or the sit- ticipation in, to deny them the benefits uations in which, such services, finan- of, or to subject them to discrimina- cial aid, other benefits, or facilities tion under any program or activity to will be provided under any such pro- which this regulation applies the appli- gram, or the class of individuals to be cant or recipient has an obligation to afforded an opportunity to participate take reasonable action to remove or in any such program, may not directly overcome the consequences of the prior or through contractual or other ar- discriminatory practice or usage, and rangements, utilize criteria or methods to accomplish the purposes of the Act. of administration which have the effect (c) Employment practices. (1) Where a of subjecting individuals to discrimina- primary objective of the Federal finan- tion because of their race, color, or na- cial assistance to a program to which tional origin, or have the effect of de- this part applies is to provide employ- feating or substantially impairing ac- ment, a recipient may not directly or complishment of the objectives of the through contractual or other arrange- program as respects individuals of a ments subject an individual to dis- particular race, color, or national ori- crimination on the ground of race, gin. color, or national origin in its employ- (3) In determining the site or loca- ment practices under such program (in- tion of facilities, a recipient or appli- cluding recruitment or recruitment ad- cant may not make selections with the vertising, employment, layoff or termi- purpose or effect of excluding individ- nation, upgrading, demotion, or trans- uals from, denying them the benefits fer, rates of pay or other forms of com- of, or subjecting them to discrimina- pensation and use of facilities), includ- tion under any program to which this ing programs where a primary objec- regulation applies, on the grounds of tive of the Federal financial assistance race, color, or national origin; or with is (i) to assist such individuals through the purpose or effect of defeating or employment to meet expenses incident substantially impairing the accom- to the commencement or continuation plishment of the objectives of the Act of their education or training or (ii) to or this regulation. provide work experience which contrib- (4) As used in this section the serv- utes to the education or training of ices, financial aid, or other benefits such individuals. provided under a program receiving (2) Types of Federal financial assist- Federal financial assistance shall be ance listed in appendix A as respects deemed to include any service, finan- employment opportunities provided cial aid, or other benefit provided in or thereunder, or in facilities provided through a facility provided with the thereunder, which are limited, or for aid of Federal financial assistance. which preference is given, to students,

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fellows, or other persons, including re- program will be conducted or the facil- search associates, where in training for ity operated in compliance with all re- the same or related employments, have quirements imposed by or pursuant to one of the above purposes as a primary this part. In the case where the Federal purpose. financial assistance is to provide or is (3) The requirements applicable to in the form of personal property, or construction employment under any real property or interest therein or such program shall be those specified structures thereon, the assurance shall in or pursuant to part III of Executive obligate the recipient, or, in the case of Order 11246 or any Executive order a subsequent transfer, the transferee, which supersedes it. for the period during which the prop- (4) Where a primary objective of the Federal financial assistance is not to erty is used for a purpose for which the provide employment, but discrimina- Federal financial assistance is ex- tion on the grounds of race, color, or tended or for another purpose involving national origin in the employment the provision of similar services and practices of the recipient or other per- benefits, or for as long as the recipient sons subject to the regulation tends, on retains ownership or possession of the the grounds of race, color, or national property, whichever is longer. In all origin, to exclude individuals from par- other cases the assurance shall obli- ticipation in, to deny them the benefits gate the recipient for the period during of, or to subject them to discrimina- which Federal Financial assistance is tion under any program to which this extended pursuant to the application. regulation applies, the provisions of The responsible Foundation official paragraph (c)(3) of this section shall shall specify the form of the foregoing apply to the employment practices of assurances and the extent to which the recipient or other persons subject like assurances will be required of sub- to the regulation, to the extent nec- grantees, contractors and subcontrac- essary to assure equality of oppor- tors, successors in interest, and other tunity to, and nondiscriminatory participants. Any such assurance shall treatment of, beneficiaries. include provisions which give the (d) Medical emergencies. Notwith- United States a right to seek its judi- standing the foregoing provisions of cial enforcement. this section, a recipient of Federal fi- (2) In the case where Federal finan- nancial assistance shall not be deemed cial assistance is provided in the form to have failed to comply with para- of a transfer of real property, struc- graph (a) of this section if immediate provision of a service or other benefit tures, or improvements thereon, or in- to an individual is necessary to prevent terest therein, from the Federal Gov- his death or serious impairment of his ernment, the instrument effecting or health, and such service or other ben- recording the transfer shall contain a efit cannot be provided except by or covenant running with the land assur- through a medical institution which ing nondiscrimination for the period refuses or fails to comply with para- during which the real property is used graph (a) of this section. for a purpose for which the Federal financial assistance is extended or for [29 FR 16305, Dec. 4, 1964, as amended at 38 another purpose involving the provi- FR 17985, July 5, 1973; 68 FR 51382, Aug. 26, 2003] sion of similar services or benefits. Where no transfer of property or inter- § 611.4 Assurances required. est therein from the Federal Govern- (a) General. (1) Every application for ment is involved, but property is ac- Federal financial assistance to which quired or improved with Federal finan- this part applies, and every application cial assistance, the recipient shall for Federal financial assistance to pro- agree to include such covenant in any vide a facility shall, as a condition to subsequent transfer of such property. its approval and the extension of any When the property is obtained from the Federal financial assistance pursuant Federal Government, such covenant to the application, contain or be ac- may also include a condition coupled companied by an assurance that the with a right to be reserved by the

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Foundation to revert title to the prop- revised to conform to such final order, erty in the event of a breach of the cov- including any future modification of enant where, in the discretion of the such order. responsible Foundation official, such a (c) Assurances from institutions. (1) In condition and right of reverter is ap- the case of any application for Federal propriate to the statute under which financial assistance to an institution of the real property is obtained and to the higher education (including assistance nature of the grant and the grantee. In for construction, for research for a spe- such event if a transferee of real prop- cial training project, or for any other erty proposes to mortgage or otherwise purpose), the assurance required by encumber the real property as security this section shall extend to admission for financing construction of new, or practices and to all other practices re- improvement of existing, facilities on lating to the treatment of students. such property for the purposes for (2) The assurance required with re- which the property was transferred, spect to an institution of higher edu- the responsible Foundation official cation, hospital, or any other institu- may agree, upon request of the trans- tion, insofar as the assurance relates to feree and if necessary to accomplish the institution’s practices with respect such financing, and upon such condi- to admission or other treatment of in- tions as he deems appropriate, to sub- dividuals as students, patients, or cli- ordinate such right of reversion to the ents of the institution or to the oppor- lien of such mortgage or other encum- tunity to participate in the provision brance. of services or other benefits to such in- (3) Transfers of surplus property are dividuals, shall be applicable to the en- subject to regulations issued by the tire institution. Administrator of the General Services Administration. (41 CFR 101–6.2.) [29 FR 16305, Dec. 4, 1964, as amended at 38 FR 17985, July 5, 1973; 68 FR 51382, Aug. 26, (b) Elementary and secondary schools. 2003] The requirements of paragraph (a) of this section with respect to any ele- § 611.5 Illustrative applications. mentary or secondary school or school system shall be deemed to be satisfied The following examples will illus- if such school or school system (1) is trate the application of the foregoing subject to a final order of a court of the provisions to some of the programs United States for the desegregation of aided by the Foundation. (In all cases such school or school system, and pro- the discrimination prohibited is dis- vides an assurance that it will comply crimination on the ground of race, with such order, including any future color, or national origin prohibited by modification of such order, or (2) subtitle VI of the Act and this part, as a mits a plan for the desegregation of condition of the receipt of Federal fi- such school or school system which the nancial assistance.) responsible Official of the Department 1. For support to elementary or secondary of Health, Education, and Welfare de- schools such as for the acquisition of equip- termines is adequate to accomplish the ment discrimination by the recipient school purposes of the Act and this part, and district in any of its elementary or sec- provides reasonable assurance that it ondary schools, or by the recipient private institution, in the admission of students, or will carry out such plan. In any case of in the treatment of its students in any as- continuing Federal financial assistance pect of the educational process, is prohib- the responsible Official of the Depart- ited. In this and the following illustration ment of Health, Education, and Welfare the prohibition of discrimination in the may reserve the right to redetermine, treatment of students or other trainees in- after such period as may be specified cludes the prohibition of discrimination by him, the adequacy of the plan to ac- among the students or trainees in the avail- complish the purposes of the Act and ability or use of any academic, dormitory, eating, recreational, or other facilities of the this part. In any case in which a final grantee or other recipient. order of a court of the United States 2. In a research, training, or other grant to for the desegregation of such school or a university for activities to be conducted in school system is entered after submis- a graduate school, discrimination in the ad- sion of such a plan, such plan shall be mission and treatment of students in the

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graduate school is prohibited, and the prohi- widely available to such groups, not then bition extends to the entire university. being adequately served. For example, where 3. In a training grant to a hospital or other a university is not adequately serving mem- nonacademic institution, discrimination is bers of a particular racial or nationality prohibited in the selection of individuals to group, it may establish special recruitment be trained and in their treatment by the policies to make its program better known grantee during their training. In a research and more readily available to such group, or demonstration grant to such an institu- and take other steps to provide that group tion, discrimination is prohibited with re- with more adequate service. spect to any educational activity, any provi- [29 FR 16305, Dec. 4, 1964, as amended at 38 sion of medical or other services and any fi- FR 17985, July 5, 1973; 68 FR 51382, Aug. 26, nancial aid to individuals incident to the 2003] program. 4. In grants to assist in the construction of facilities for research or for the provision of § 611.6 Compliance information. educational services, assurances will be re- (a) Cooperation and assistance. The required that services will be provided without sponsible Foundation official shall, to discrimination, to the same extent that dis- the fullest extent practicable, seek the crimination would be prohibited as a condi- cooperation of recipients in obtaining tion of Federal operating grants for the support of such services. Thus, as a condition of compliance with this part and shall grants for the construction of academic, re- provide assistance and guidance to research, or other facilities at institutions of cipients to help them comply volun- higher education, assurances will be required tarily with this part. that there will be no discrimination in the (b) Compliance reports. Each recipient admission or treatment of students. In other shall keep such records and submit to construction grants the assurances required the responsible Foundation official will similarly be adapted to the nature of the activities to be conducted in the facilities timely, complete and accurate compli- for construction of which the grants have ance reports at such times, and in such been authorized by Congress. form and containing such information, 5. Upon transfers of real or personal prop- as the responsible Foundation official erty for research or educational uses, dis- may determine to be necessary to en- crimination is prohibited to the same extent able him to ascertain whether the reas in the case of grants for the construction cipient has complied or is complying of facilities or the provision of equipment for with this part. In the case in which a like purposes. 6. In some situations even though past dis- primary recipient extends Federal fi- criminatory practices have been abandoned, nancial assistance to any other recipi- the consequences of such practices continue ent, such other recipient shall also sub- to impede the full availability of a benefit. If mit such compliance reports to the pri- the efforts required of the applicant or re- mary recipient as may be necessary to cipient under § 611.6(d) to provide informa- enable the primary recipient to carry tion as to the availability of the program or out its obligations under this part. activity, and the rights of beneficiaries under this regulation, have failed to over- (c) Access to sources of information. come these consequences, it will become nec- Each recipient shall permit access by essary for such applicant or recipient to take the responsible Foundation official or additional steps to make the benefits fully his designee during normal business available to racial and nationality groups hours to such of its books, records, ac- previously subjected to discrimination. This counts, and other sources of informa- action might take the form, for example, of tion, and its facilities as may be perti- special arrangements for obtaining referrals nent to ascertain compliance with this which will insure that groups previously subjected to discrimination are adequately part. Where any information required served but not the establishment of discrimi- of a recipient is in the exclusive posses- natory qualifications for participation in sion of any other agency, institution or any program. person and this agency, institution or 7. Even though an applicant or recipient person shall fail or refuse to furnish has never used discriminatory policies, the this information, the recipient shall so services and benefits of the program or activ- certify in its report and shall set forth ity it administers may not in fact be equally what efforts it has made to obtain the available to some racial or nationality groups. In such circumstances an applicant information. or recipient may properly give special con- (d) Information to beneficiaries and sideration to race, color, or national origin participants. Each recipient shall make to make the benefits of its program more available to participants, beneficiaries,

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and other interested persons such in- (2) If an investigation does not war- formation regarding the provisions of rant action pursuant to paragraph this part and its applicability to the (d)(1) of this section the responsible program for which the recipient re- Foundation official will so inform the ceives Federal financial assistance, and recipient and the complainant, if any, make such information available to in writing. them in such manner, as the respon- (e) Intimidatory or retaliatory acts pro- sible Foundation official finds nec- hibited. No recipient or other person essary to apprise such persons of the shall intimidate, threaten, coerce, or protections against discrimination as- discriminate against any individual for sured them by the Act and this part. the purpose of interfering with any (Approved by the Office of Management and right or privilege secured by section 601 Budget under control number 3l45–0087) of the Act or this part, or because he [29 FR 16305, Dec. 4, 1964, as amended at 49 has made a complaint, testified, as- FR 37595, Sept. 25, 1984; 68 FR 51382, Aug. 26, sisted, or participated in any manner 2003] in an investigation, proceeding, or hearing under this part. The identity of § 611.7 Conduct of investigations. complainants shall be kept confiden- (a) Periodic compliance reviews. The re- tial except to the extent necessary to sponsible Foundation official shall carry out the purposes of this part, in- from time to time review the practices cluding the conduct of any investiga- of recipients to determine whether tion, hearing, or judicial proceeding they are complying with this part. arising thereunder. (b) Complaints. Any person who believes himself or any specific class of § 611.8 Procedure for effecting compli- individuals to be subjected to discrimi- ance. nation prohibited by this part may by (a) General. If there appears to be a himself or by a representative file with failure or threatened failure to comply the responsible Foundation official a with this part, and if the noncompli- written complaint. A complaint must ance or threatened noncompliance can- be filed not later than 90 days from the not be corrected by informal means, date of the alleged discrimination, un- compliance with this part may be ef- less the time for filing is extended by fected by the suspension or termi- the responsible Foundation official. nation of or refusal to grant or to con- (c) Investigations. The responsible Foundation official will make a prompt tinue Federal financial assistance or by investigation whenever a compliance any other means authorized by law. review, report, complaint, or any other Such other means may include, but are information indicates a possible failure not limited to (1) a reference to the De- to comply with this part. The inves- partment of Justice with a rec- tigation should include, where appro- ommendation that appropriate propriate, a review of the pertinent prac- ceedings be brought to enforce any tices and policies of the recipient, the rights of the United States under any circumstances under which the possible law of the United States (including noncompliance with this part occurred, other titles of the Act), or any assur- and other factors relevant to a deter- ance or other contractual undertaking, mination as to whether the recipient and (2) any applicable proceeding under has failed to comply with this part. State or local law. (d) Resolution of matters. (1) If an in- (b) Noncompliance with § 611.4. If an vestigation pursuant to paragraph (c) applicant fails or refuses to furnish an of this section indicates a failure to assurance required under § 611.4 or oth- comply with this regulation, the re- erwise fails to comply with that sec- sponsible Foundation official will so tion, Federal financial assistance may inform the recipient and the matter be refused in accordance with the pro- will be resolved by informal means cedures of paragraph (c) of this section. whenever possible. If it has been deter- The Foundation shall not be required mined that the matter cannot be re- to provide assistance in such a case solved by informal means, action will during the pendency of the administra- be taken as provided for in § 611.8. tive proceedings under such subsection,

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except that the Foundation shall con- take such corrective action as may be tinue assistance during the pendency of appropriate. such proceedings where such assistance is due and payable pursuant to an ap- [29 FR 16305, Dec. 4, 1964, as amended at 38 plication therefor approved prior to the FR 17985, July 5, 1973; 51 FR 22938, June 24, 1986] effective date of this part. (c) Termination of or refusal to grant § 611.9 Hearings. or to continue Federal financial assistance. No order suspending, termi- (a) Opportunity for hearing. Whenever nating, or refusing to grant or continue an opportunity for a hearing is re- Federal financial assistance shall be- quired by § 611.8(b), reasonable notice come effective until: shall be given by registered or certified (1) The responsible Foundation offi- mail, return receipt requested, to the cial has advised the applicant or recipi- affected applicant or recipient. This ent of his failure to comply and has de- notice shall advise the applicant or re- termined that compliance cannot be cipient of the action proposed to be secured by voluntary means, taken, the specific provision under (2) There has been an express finding which the proposed action against it is on the record, after opportunity for to be taken, and the matters of fact or hearings, of a failure by the applicant law asserted as the basis for this ac- or recipient to comply with a require- tion, and either (1) fix a date not less ment imposed by or pursuant to this than twenty days after the date of such part, notice within which the applicant or (3) The action has been approved by recipient may request of the respon- the Director pursuant to § 611.10(e) and sible Foundation official that the mat- (4) The expiration of thirty days after ter be scheduled for hearing or (2) ad- the Director has filed with the Com- vise the applicant or recipient that the mittee of the House and the Committee matter in question has been set down of the Senate having legislative juris- for hearing at a stated place and time. diction over the program involved, a The time and place so fixed shall be full written report of the cir- reasonable and shall be subject to cumstances and the grounds for such change for cause. The complainant, if action. any, shall be advised of the time and Any action to suspend or terminate or place of the hearing. An applicant or to refuse to grant or to continue Fed- recipient may waive a hearing and sub- eral financial assistance shall be lim- mit written information and argument ited to the particular political entity, for the record. The failure of an appli- or part thereof, or other applicant or cant or recipient to request a hearing recipient as to whom such a finding has under this paragraph or to appear at a been made and shall be limited in its hearing for which a date has been set effect to the particular program, or shall be deemed to be a waiver of the part thereof, in which such noncompliance has been so found. right to a hearing under section 602 of (d) Other means authorized by law. No the Act and § 611.8(c) and consent to the action to effect compliance by any making of a decision on the basis of other means authorized by law shall be such information as is available. taken until (1) the responsible Founda- (b) Time and place of hearing. Hear- tion official has determined that com- ings shall be held at the offices of the pliance cannot be secured by voluntary Foundation in Arlington, VA, at a time means, (2) the recipient or other person fixed by the responsible Foundation of- has been notified of its failure to com- ficial unless he determines that the ply and of the action to be taken to ef- convenience of the applicant or recipi- fect compliance, and (3) the expiration ent or of the Foundation requires that of at least ten days from the mailing of another place be selected. Hearings such notice to the recipient or other shall be held before the responsible person. During this period of at least Foundation official or, at the discre- ten days additional efforts shall be tion of the Director, a hearing exam- made to persuade the recipient or other iner designated in accordance with 5 person to comply with this part and to U.S.C. 3105 and 3344.

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(c) Right to counsel. In all proceedings partments or agencies, where applica- under this section, the applicant or re- ble, provide for the conduct of consoli- cipient and the Foundation shall have dated or joint hearings, and for the ap- the right to be represented by counsel. plication to such hearings of rules of (d) Procedures, evidence, and record. (1) procedure not inconsistent with this The hearing, decision, and any admin- part. Final decisions in such cases, in- istrative review thereof shall be con- sofar as this part is concerned, shall be ducted in conformity with 5 U.S.C. 554 made in accordance with § 611.10. through 557, and in accordance with such rules of procedure as are proper [29 FR 16305, Dec. 4, 1964, as amended at 38 (and not inconsistent with this section) FR 17985, July 5, 1973; 59 FR 37437, July 22, relating to the conduct of the hearing, 1994; 68 FR 51382, Aug. 26, 2003] giving of notices subsequent to those § 611.10 Decisions and notices. provided for in paragraph (a) of this section, taking of testimony, exhibits, (a) Decision by a person or persons arguments and briefs, requests for find- other than the responsible Foundation of- ings, and other related matters. Both ficial. If the hearing is held by a hear- the Foundation and the applicant or ing examiner, such hearing examiner recipient shall be entitled to introduce shall either make an initial decision, if all relevant evidence on the issues as so authorized, or certify the entire stated in the notice for hearing or as record including recommended findings determined by the officer conducting and proposed decision to the respon- the hearing at the outset of or during sible Foundation official for a final de- the hearing. cision, and a copy of such initial deci- (2) Technical rules of evidence shall sion or certification shall be mailed to not apply to hearings conducted pursu- the applicant or recipient. Where the ant to this part, but rules or principles initial decision is made by the hearing designed to assure production of the examiner, the applicant or recipient most credible evidence available and to may within 30 days of the mailing of subject testimony to test by cross-ex- such notice of initial decision file with amination shall be applied where rea- the responsible Foundation official his sonably necessary by the officer con- exceptions to the initial decision, with ducting the hearing. The hearing offi- his reasons therefor. In the absence of cer may exclude irrelevant, immate- exceptions, the responsible Foundation rial, or unduly repetitious evidence. All official may on his own motion within documents and other evidence offered 45 days after the initial decision serve or taken for the record shall be open to on the applicant or recipient a notice examination by the parties and oppor- that he will review the decision. Upon tunity shall be given to refute facts the filing of such exceptions or of such and arguments advanced on either side notice of review the responsible Foun- of the issues. A transcript shall be dation official shall review the initial made of the oral evidence except to the extent the substance thereof is stipu- decision and issue his own decision lated for the record. All decisions shall thereon including the reasons therefor. be based upon the hearing record and In the absence of either exceptions or a written findings shall be made. notice of review the initial decision (e) Consolidated or joint hearings. In shall constitute the final decision of cases in which the same or related the responsible Foundation official. facts are asserted to constitute non- (b) Decisions on record or review by the compliance with this part with respect responsible Foundation official. When- to two or more Federal statutes, au- ever, after hearing, a record is certified thorities, or other means by which to the responsible Foundation official Federal financial assistance is ex- for decision or he reviews the decision tended and to which this part applies of a hearing examiner pursuant to or noncompliance with this part and paragraph (a) of this section, or when- the regulations of one or more other ever the responsible Foundation offi- Federal departments or agencies issued cial conducts the hearing, the appli- under title VI of the Act, the Director cant or recipient shall be given reason- may, by agreement with such other de- able opportunity to file with him briefs

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or other written statements of its con- fected by an order issued under para- tentions, and a copy of the final deci- graph (f) of this section shall be re- sion of the responsible Foundation offi- stored to full eligibility to receive Fed- cial shall be given in writing to the ap- eral financial assistance if it satisfies plicant or recipient, and to the com- the terms and conditions of that order plainant, if any. for such eligibility or if it brings itself (c) Decisions on record where a hearing into compliance with this regulation is waived. Whenever a hearing is waived and provides reasonable assurance that pursuant to § 611.9(a), a decision shall it will fully comply with this regula- be made by the responsible Foundation tion. official on the record and a copy of (2) Any applicant or recipient ad- such decision shall be given in writing versely affected by an order entered to the applicant or recipient, and to pursuant to paragraph (f) of this sec- the complainant, if any. tion may at any time request the re- (d) Rulings required. Each decision of sponsible Foundation official to restore a hearing officer, panel, or responsible fully its eligibility to receive Federal Foundation official shall set forth the financial assistance. Any such request ruling on each finding, conclusion, or shall be supported by information exception presented, and shall identify showing that the applicant or recipient the requirement or requirements im- has met the requirements of paragraph posed by or pursuant to this part with (g)(1) of this section. If the responsible which it is found that the applicant or Foundation official determines that recipient has failed to comply. those requirements have been satisfied, (e) Approval by Director. Any final de- he shall restore such eligibility. cision of a responsible Foundation offi- (3) If the responsible Foundation official (other than the Director) which cial denies any such request, the appli- provides for the suspension or termi- cant or recipient may submit a request nation of, or the refusal to grant or for a hearing in writing, specifying why continue Federal financial assistance, it believes such official to have been in or the imposition of any other sanction error. It shall thereupon be given an available under this part or the Act, expeditious hearing, with a decision on shall promptly be transmitted to the the record, in accordance with rules of Director who may approve such deci- procedure issued by the responsible sion, may vacate it, or remit or miti- Foundation official. The applicant or gate any sanction imposed. recipient will be restored to such eligi- (f) Content of orders. The final deci- bility if it proves at such a hearing sion may provide for suspension or ter- that it satisfied the requirements of mination of, or refusal to grant or con- paragraph (g)(1) of this section. While tinue Federal financial assistance, in proceedings under this paragraph are whole or in part, to which this regula- pending, the sanctions imposed by the tion applies, and may contain such order issued under paragraph (f) of this terms, conditions, and other provisions section shall remain in effect. as are consistent with and will effec- [29 FR 16305, Dec. 4, 1964, as amended at 38 tuate the purposes of the Act and this FR 17985, July 5, 1973; 51 FR 22939, June 24, part, including provisions designed to 1986; 68 FR 51382, Aug. 26, 2003] assure that no Federal financial assistance to which this regulation applies § 611.11 Judicial review. will thereafter be extended to the ap- Action taken pursuant to section 602 plicant or recipient determined by such of the Act is subject to judicial review decision to be in default in its perform- as provided in section 603 of the Act. ance of an assurance given by it pursuant to this part, or to have otherwise § 611.12 Effect on other regulations; failed to comply with this part, unless forms and instructions. and until it corrects its noncompliance (a) Effect on other regulations. All reg- and satisfies the responsible Founda- ulations, orders, or like directions tion official that it will fully comply heretofore issued by any officer of the with this part. Foundation which impose requirements (g) Posttermination proceedings. (1) An designed to prohibit any discrimina- applicant or recipient adversely af- tion against individuals on the ground

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of race, color, or national origin under such action had been taken by the re- any program to which this part applies, sponsible official of this agency. and which authorize the suspension or [29 FR 16305, Dec. 4, 1964, as amended at 38 termination of or refusal to grant or to FR 17985, July 5, 1973; 68 FR 51382, Aug. 26, continue Federal financial assistance 2003] to any applicant for or recipient of such assistance for failure to comply § 611.13 Definitions. with such requirements, are hereby su- As used in this part: perseded to the extent that such discrimination is prohibited by this part, (a) The term Foundation means the except that nothing in this part shall National Science Foundation, and in- be deemed to relieve any person of any cludes each of its organizational units. obligation assumed or imposed under (b) The term Director means the Di- any such superseded regulation, order, rector of the National Science Founda- instruction, or like direction prior to tion. the effective date of this part. Nothing (c) The term responsible Foundation in this part, however, supersedes any of official with respect to any program re- the following (including future amend- ceiving Federal financial assistance ments thereof): (1) Executive Order means the Director or other official of 11246 and regulation issued thereunder, the Foundation designated by the Di- or (2) any other orders, regulations, or rector. instructions, insofar as such orders, (d) The term United States means the regulations, or instructions prohibit States of the United States, the Dis- discrimination on the ground of race, trict of Columbia, Puerto Rico, the color, or national origin in any pro- Virgin Islands, American Samoa, gram or situation to which this part is Guam, Wake Island, the Canal Zone, inapplicable, or prohibit discrimina- and the territories and possessions of tion on any other ground. the United States, and the term State (b) Forms and instructions. Each re- means any one of the foregoing. sponsible Foundation official shall (e) The term Federal financial assist- issue and promptly make available to ance includes (1) grants and loans of interested persons forms and detailed Federal funds, (2) the grant or the do- instructions and procedures for effec- nation of Federal property and inter- tuating this part as applied to pro- ests in property, (3) the detail of Fed- grams to which this part applies and eral personnel, (4) the sale and lease of, for which he is responsible. and the permission to use (on other (c) Supervision and coordination. The than a casual or transient basis), Fed- Director may from time to time assign eral property or any interest in such to officials of other departments or property without consideration or at a agencies of the Government, with the nominal consideration, or at a consid- consent of such departments or agen- eration which is reduced for the pur- cies, responsibilities in connection pose of assisting the recipient, or in with the effectuation of the purposes of recognition of the public interest to be title VI of the Act and this part (other served by such sale or lease to the re- than responsibility for final decision as cipient, and (5) any Federal agreement, provided in § 611.10), including the arrangement, or other contract which achievement of effective coordination has as one of its purposes the provision and maximum uniformity within the of assistance. Foundation and within the Executive (f) The terms program or activity and Branch of the Government in the appli- program mean all of the operations of cation of title VI and this regulation to any entity described in paragraphs similar programs and in similar situa- (f)(1) through (4) of this section, any tions. Any action taken, determination part of which is extended Federal fi- made, or requirement imposed by an nancial assistance: official of another Department or agen- (1)(i) A department, agency, special cy acting pursuant to an assignment of purpose district, or other instrumen- responsibility under this subsection tality of a State or of a local govern- shall have the same effect as though ment; or

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(ii) The entity of such State or local (j) The term applicant means one who government that distributes such as- submits an application, request, or sistance and each such department or plan required to be approved by a re- agency (and each other State or local sponsible Foundation official, or by a government entity) to which the as- primary recipient, as a condition to sistance is extended, in the case of as- eligibility for Federal financial assist- sistance to a State or local governance, and the term application means ment; such an application, request, or plan. (2)(i) A college, university, or other postsecondary institution, or a public [29 FR 16305, Dec. 4, 1964, as amended at 68 system of higher education; or FR 51382, Aug. 26, 2003] (ii) A local educational agency (as defined in 20 U.S.C. 7801), system of voca- APPENDIX A TO PART 611 tional education, or other school sys- Statutory Provisions under which the Na- tem; tional Science Foundation provides Federal (3)(i) An entire corporation, partner- financial assistance: ship, or other private organization, or The National Science Foundation Act of an entire sole proprietorship— 1950, as amended (42 U.S.C. 1861–1875). (A) If assistance is extended to such [38 FR 17986, July 5, 1973, as amended at 59 corporation, partnership, private orga- FR 37437, July 22, 1994] nization, or sole proprietorship as a whole; or (B) Which is principally engaged in PART 612—AVAILABILITY OF the business of providing education, RECORDS AND INFORMATION health care, housing, social services, or parks and recreation; or Sec. (ii) The entire plant or other com- 612.1 General provisions. parable, geographically separate facil- 612.2 Public reading room. ity to which Federal financial assist- 612.3 Requirements for making requests. ance is extended, in the case of any 612.4 Responding to requests. other corporation, partnership, private 612.5 Timing of responses to requests. organization, or sole proprietorship; or 612.6 Responses to requests. (4) Any other entity which is estab- 612.7 Exemptions. lished by two or more of the entities 612.8 Business information. described in paragraph (f)(1), (2), or (3) 612.9 Appeals. of this section. 612.10 Fees. (g) The term facility includes all or 612.11 Other rights and services. any portion of structures, equipment, AUTHORITY: 5 U.S.C. 552, as amended. or other real or personal property or SOURCE: 78 FR 53278, Aug. 29, 2013, unless interests therein, and the provision of otherwise noted. facilities includes the construction, expansion, renovation, remodeling, alter- § 612.1 General provisions. ation or acquisition of facilities. (h) The term recipient means any (a) This part contains the rules that State, political subdivision of any the National Science Foundation (NSF) State, or instrumentality of any State follows in processing requests for or political subdivision, any public or records under the Freedom of Informa- private agency, institution, or organi- tion Act (FOIA), 5 U.S.C. 552. Informa- zation, or other entity or any indi- tion routinely made available to the vidual, in any State, to whom Federal public as part of a regular Foundation financial assistance is extended, di- activity (for example, program an- rectly or through another recipient, in- nouncements and solicitations, sum- cluding any successor, assign, or trans- mary of awarded proposals, statistical feree thereof, but such term does not reports on U.S. science, press releases include any ultimate beneficiary. issued by the Office of Legislative and (i) The term primary recipient means Public Affairs) may be provided to the any recipient which is authorized or republic without reliance on this part. As quired to extend Federal financial as- a matter of policy, the Foundation also sistance to another recipient. makes discretionary disclosures of

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records or information otherwise ex- by the NSF OIG, you may write di- empt under the FOIA whenever disclo- rectly to the Office of Inspector Gen- sure would not foreseeably harm an in- eral, National Science Foundation, 4201 terest protected by a FOIA exemption. Wilson Boulevard, Suite 1135, Arling- This policy, however, does not create ton, VA 22230. Requests may also be any right enforceable in court. When sent to the OIG by facsimile to (703) individuals seek records about them- 292–9158. The NSF FOIA Officer and the selves under the Privacy Act of 1974, 5 OIG component will also forward re- U.S.C. 552a, NSF processes those requests as appropriate. quests under both NSF’s Privacy regu- (b) Form of request. A FOIA request lations at part 613 of this chapter, and need not be in any particular format, this part. but it must be in writing, include the (b) As used in this part, NSF includes requester’s name and mailing address, one component, the Office of the In- and be clearly identified both on the spector General (OIG) of the National envelope and in the letter, or in a fac- Science Foundation. simile or electronic mail message as a Freedom of Information Act or ‘‘FOIA’’ § 612.2 Public reading room. request. It must describe the records (a) The Foundation maintains a pub- sought with sufficient specificity to lic reading room located in the NSF Li- permit identification, and include brary at 4201 Wilson Boulevard, Suite agreement to pay applicable fees as de- 225, Arlington, Virginia, open during scribed in § 612.10. NSF and its OIG regular working hours Monday through component are not obligated to act Friday. It contains the records that the upon a request until it meets these pro- FOIA requires to be made regularly cedural requirements. available for public inspection and (c) Personal records. (1) If you are copying and has computers and print- making a request for records about ers available for public use in accessing yourself and the records are not con- records. Also available for public in- tained in a Privacy Act system of spection and copying are current sub- records, your request will be processed ject matter indexes of reading room only under the FOIA, since the Privacy records. Act does not apply. If the records about (b) Information about FOIA and Pri- you are contained in a Privacy Act sys- vacy at NSF and copies of frequently tem of records, NSF will respond with requested FOIA releases are available information on how to make a Privacy online at www.nsf.gov/policies/foia/jsp. Act request (see NSF Privacy Act regu- Most NSF policy documents, staff in- lations at 45 CFR 613.2). structions, manuals, and other publica- (2) If you are making a request for tions that affect a member of the pub- personal information about another in- lic, are available in electronic form dividual, either a written authorization through the ‘‘Publications’’ option on signed by that individual in accordance the tool bar on NSF’s Home Page on with § 613.2(f) of this chapter permit- the World Wide Web at www.nsf.gov. ting disclosure of those records to you, or proof that that individual is de- § 612.3 Requirements for making re- ceased (for example, a copy of a death quests. certificate or a published obituary) will (a) Where to send a request. You may help the agency process your request. make a FOIA request for records of the (d) Description of records sought. Your National Science Foundation by writ- request must describe the records that ing directly to the NSF FOIA Officer, you seek in enough detail to enable Office of the General Counsel, National NSF personnel to locate them with a Science Foundation, 4201 Wilson Boule- reasonable amount of effort. A record vard, Suite 1265, Arlington, VA 22230. must have been created or obtained by Requests may also be sent by facsimile NSF and be under the control of NSF to (703) 292–9041 or by email to at the time of the request to be subject [email protected]. The National Science to the FOIA. NSF has no obligation Foundation includes one agency com- under the FOIA to create, compile, or ponent, the NSF Office of the Inspector obtain a record to satisfy a FOIA re- General (OIG). For records maintained quest. Whenever possible, your request

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should include specific descriptive in- § 612.4 Processing requests. formation about each record sought, (a) Monitoring of requests. The NSF such as the date, title or name, author, Office of the General Counsel (OGC), or recipient, and subject matter of the such other office as may be designated record. As a general rule, the more spe- by the Director, will serve as the cen- cific you are about the records or type tral office for administering these reg- of records that you want, the more ulations. For records maintained by likely the Foundation will be able to the Office of Inspector General, that locate those records in response to Office will control incoming requests your request, and the more likely fees made directly or referred to it, dis- will be reduced or eliminated. If NSF patch response letters, and maintain determines that your request does not administrative records. For all other reasonably describe records, you will records maintained by NSF, OGC (or be advised what additional information such other office as may be designated is needed to perfect your request or by the Director) will control incoming why your request is otherwise insuffi- requests, assign them to appropriate cient. action offices, monitor compliance, (e) Agreement to pay fees. Your re- consult with action offices on disclo- quest must state that you will prompt- sure, approve necessary extensions, dis- ly pay the total fees chargeable under patch denial and other letters, and this regulation or set a maximum maintain administrative records. amount you are willing to pay. NSF (b) Consultations and referrals. When does not charge if fees total less than the NSF receives a request for a record $25.00. If you seek a waiver of fees, in its possession that originated with please see § 612.10(k) for a discussion of another agency or in which another the factors you must address. If you agency has a substantial interest, it place an inadequate limit on the may decide that the other agency of amount you will pay, or have failed to the Federal Government is better able make payments for previous requests, to determine whether the record should NSF may require advance payment (see or should not be released under the § 612.10(i)). FOIA. (f) Receipt date. A request that meets (1) If the NSF determines that it is the requirements of this section will be the agency best able to process the considered received on the date it is record in response to the request, then properly received by the Office of the it will do so, after consultation with the other interested agencies where ap- General Counsel or the Office of the In- propriate. spector General. In determining which records are responsive to a FOIA re- (2) If it determines that it is not the agency best able to process the record, quest, the NSF will include only then it will refer the request regarding records in its possession as of the date that record (or portion of the record) to the NSF or OIG begins its search. If the agency that originated or has a any other date is used, the NSF or OIG substantial interest in the record in shall inform the requester of that date. question (but only if that agency is (g) Publications excluded. For the pur- subject to the FOIA). Ordinarily, the pose of public requests for records the agency that originated a record will be term ‘‘record’’ does not include publi- presumed to be best able to determine cations which are available to the pub- whether to disclose it. lic in the FEDERAL REGISTER, or by sale (3) Whenever NSF refers all or any or free distribution. Such publications part of the responsibility for respond- may be obtained from the Government ing to a request to another agency, it Printing Office, the National Technical ordinarily will notify the requester of Information Service, or through NSF’s the referral and inform the requester of Home Page on the World Wide Web at the name of each agency to which the http://www.nsf.gov/publications/. Re- request has been referred and of the quests for such publications will be re- part of the request that has been referred to or the requester informed of ferred, unless such notification would the appropriate source. disclose information otherwise exempt.

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§ 612.5 Timing of responses to re- ponent for processing the request or a quests. modified request. (a) In general. The NSF and its com- (3) Where the NSF reasonably be- ponent, OIG, ordinarily will initiate lieves that multiple requests submitted processing of requests according to by a requester, or by a group of re- their order of receipt. questers acting in concert, constitute a (b) Multitrack processing. (1) NSF and single request that would otherwise in- OIG may use two or more processing volve unusual circumstances, and the tracks by distinguishing between sim- requests involve clearly related mat- ple and more complex requests based ters, they may be aggregated. Multiple on the amount of work and/or time requests involving unrelated matters needed to process the request, includ- will not be aggregated. ing through limits based on the num- (e) Expedited processing. (1) If you ber of pages involved. If NSF or OIG want to receive expedited processing, does so, it shall advise requesters in its you must submit a statement, certified slower track(s) of the limits of its fast- to be true and correct to the best of er track(s). your knowledge and belief, explaining (2) NSF or OIG using multitrack in detail the basis for requesting expe- processing may provide requesters in dited processing. its slower track(s) with an opportunity (2)(i) Requests and appeals will be to limit the scope of their requests in given expedited treatment whenever it order to qualify for faster processing is determined that a requester has within the specified limits of the NSF’s demonstrated compelling need by pre- or OIG’s faster track(s). The requester senting: may be contacted by telephone, email, (A) Circumstances in which the lack or letter, whichever is more efficient in of expedited treatment could reason- each case. ably be expected to pose an imminent (c) Time for response. The NSF will threat to the life or physical safety of seek to take appropriate action within an individual; or 20 days of when a request is properly (B) An urgency to inform the public received or is perfected (excluding the about an actual or alleged Federal gov- date of receipt, weekends, and legal ernment activity, if made by a person holidays), whichever is later. A request primarily engaged in disseminating in- which otherwise meets the require- formation. ments of § 612.3 is perfected when you (ii) For example, a requester who is have reasonably described the records not a full-time member of the news sought under § 612.3(d), and agreed to media must establish that he or she is pay fees under § 612.3(e), or otherwise a person whose main professional ac- met the fee requirements under § 612.10. tivity or occupation is information dis- (d) Unusual circumstances. (1) Where semination, though it need not be his the time limits for processing a request or her sole occupation. Such requester cannot be met because of unusual cir- also must establish a particular ur- cumstances, as defined in the FOIA, gency to inform the public about the the NSF FOIA Officer or the OIG com- government activity involved in the re- ponent will notify the requester as quest, beyond the public’s right to soon as practicable in writing of the know about government activity gen- unusual circumstances and may extend erally, and that the information sought the response period for up to ten work- has particular value that would be lost ing days. if not disseminated quickly. (2) Where the extension is for more (3) Within ten calendar days of re- than ten working days, the FOIA Offi- ceipt of a request for expedited proc- cer or the OIG component will provide essing, the NSF FOIA Officer or OIG the requester with an opportunity ei- component will decide whether to ther to modify the request so that it grant it, and will notify the requester may be processed within the ten day of the decision orally or in writing. If a extension period or to arrange an request for expedited treatment is agreed upon alternative time period granted, the request will be processed with the FOIA Officer or the OIG com- as soon as practicable. If a request for

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expedited processing is denied, any ap- may be withholdable as exempt in full peal of that decision will be acted on or in part from mandatory public dis- expeditiously. closure: (1) Exemption 1–5 U.S.C. 552(b)(1). § 612.6 Responses to requests. Records specifically authorized and (a) Acknowledgment of requests. The properly classified pursuant to Execu- NSF or OIG will ordinarily send an tive Order to be kept secret in the in- email acknowledgment of all FOIA re- terest of national defense or foreign quests with an assigned request num- policy. NSF does not have classifying ber for further reference and an esti- authority and normally does not deal mated response date. with classified materials. (b) Grants of requests. Once the NSF (2) Exemption 2–5 U.S.C. 552(b)(2). makes a determination to grant a re- Records related solely to the internal quest in whole or in part, it will notify personnel rules and practices of NSF. the requester in writing. The NSF will Examples of records normally exempt inform the requester in the notice of from disclosure include, but are not any applicable fee and will disclose limited to: Information relating to po- records to the requester promptly on sition management and manpower uti- payment of applicable fees. Records lization, such as internal staffing disclosed in part will be marked or an- plans, authorizations or controls, or in- notated to show both the amount and volved in determination of the quali- the location of the information deleted fications of candidates for employ- where practicable. ment, advancement, or promotion in- (c) Denials of requests. (1) Denials of cluding examination questions and an- FOIA requests will be made by the Of- swers. fice of the General Counsel, the Office of the Inspector General, or such other (3) Exemption 3–5 U.S.C. 552(b)(3). office as may be designated by the Di- Records specifically exempted from rector. The response letter will briefly disclosure by another statute that ei- set forth the reasons for the denial, in- ther requires that the information be cluding any FOIA exemption(s) applied withheld in a such way that the agency in denying the request. It will also pro- has no discretion in the matter; or es- vide the name and title or position of tablishes particular criteria for with- the person responsible for the denial, holding or refers to particular types of will inform the requester of the right information to be withheld; and, if en- to appeal, and will, where appropriate, acted after the date of enactment of include an estimate of the volume of the OPEN FOIA Act of 2009, October 28, any requested materials withheld. An 2009, specifically cites to 5 U.S.C. estimate need not be provided when the 552(b)(3). Examples of records exempt volume is otherwise indicated through from disclosure include, but are not deletions on records disclosed in part, limited to: or if providing an estimate would harm (i) Records that disclose any inven- an interest protected by an applicable tion in which the Federal Government exemption. owns or may own a right, title, or in- (2) Requesters can appeal an agency terest (including a nonexclusive li- determination to withhold all or part cense), 35 U.S.C. 205; of any requested record; a determina- (ii) Contractor proposals not specifi- tion that a requested record does not cally set forth or incorporated by ref- exist or cannot be located; a deter- erence into a contract, 41 U.S.C. mination that what has been requested 253b(m); is not a record subject to the Act; a (iii) Information protected by the disapproval of a fee category claim by Procurement Integrity Act, 41 U.S.C. a requester; denial of a fee waiver or 423; reduction; or a denial of a request for (iv) Statistical information protected expedited treatment (see § 612.9). by section 14(i) of the NSF Act of 1950, as amended, 42 U.S.C. 1873(i) and/or the § 612.7 Exemptions. Confidential Information Protection (a) Exemptions from disclosure. The fol- and Statistical Efficiency Act of 2002, lowing types of records or information 44 U.S.C. 3501 note.

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(4) Exemption 4–5 U.S.C. 552(b)(4). contained in such records will be con- Trade secrets and commercial or finan- sidered for release if it can be reason- cial information obtained from a per- ably segregated and is not otherwise son, and privileged or confidential. In- exempt. Examples of records exempt formation subject to this exemption is from disclosure include, but are not that customarily held in confidence by limited to: the originator(s), including nonprofit (i) Those portions of reports, memo- organizations and their employees. Re- randa, correspondence, workpapers, lease of such information is likely to minutes of meetings, and staff papers, cause substantial harm to the competi- containing evaluations, advice, opin- tive position of the originator or sub- ions, suggestions, or other deliberative mitter, or impair the Foundation’s material that are prepared for use ability to obtain such information in within NSF or within the Executive the future. NSF will process informa- Branch of the Government by agency tion potentially exempted from disclo- personnel and others acting in a con- sure by Exemption 4 under § 612.8. sultant or advisory capacity; Examples of records or information (ii) Advance information on proposed normally exempt from disclosure in- NSF plans to procure, lease, or other- clude, but are not limited to: wise acquire, or dispose of materials, (i) Information received in con- real estate, facilities, services or func- fidence, such as grant applications, fel- tions, when such information would lowship applications, and research pro- provide undue or unfair competitive posals prior to award; advantage to private interests or im- (ii) Confidential scientific and manu- pede legitimate government functions; facturing processes or developments, (iii) Negotiating positions or limits and technical, scientific, statistical at least until the execution of a con- data or other information developed by tract (including a grant or cooperative a grantee; agreement) or the completion of the (iii) Technical, scientific, or statis- action to which the negotiating posi- tical data, and commercial or financial tions were applicable. They may also information privileged or received in be exempt pursuant to other provisions confidence from an existing or poten- of this section; tial contractor or subcontractor, in (iv) Trade secret or other confiden- connection with bids, proposals, or con- tial research development, or commer- tracts, concerning contract perform- cial information owned by the Govern- ance, income, profits, losses, and ex- ment, where premature release is like- penditures, as well as trade secrets, in- ly to affect the Government’s negoti- ventions, discoveries, or other propri- ating position or other commercial in- etary data. When the provisions of 41 terest; U.S.C. 253b(m) or 41 U.S.C. 423 are met, (iv) Records prepared for use in pro- certain proprietary and source selec- ceedings before any Federal or State tion information may also be withheld court or administrative body; under Exemption 3; (vi) Evaluations of and comments on (iv) Confidential proprietary infor- specific grant applications, research mation submitted on a voluntary basis; projects or proposals, fellowship appli- (v) Statements or information col- cations or nominations or other indi- lected in the course of inspections, in- vidual awards, or potential contractors vestigations, or audits, when such and their products, whether made by statements are received in confidence NSF personnel or by external reviewers from the individual and retained in acting either individually or in panels, confidence because they reveal trade committees or similar groups; secrets or commercial or financial in- (vii) Preliminary, draft or unap- formation normally considered con- proved documents, such as opinions, fidential or privileged. recommendations, evaluations, deci- (5) Exemption 5–5 U.S.C. 552(b)(5). sions, or studies conducted or sup- Inter-agency or intra-agency memo- ported by NSF; randa or letters which would not be (viii) Proposed budget requests, and available by law to a private party in supporting projections used or arising litigation with NSF. Factual material in the preparation and/or execution of

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a budget; proposed annual and multi- not sufficient to outweigh the privacy year policy, priorities, program and fi- interest. nancial plan and supporting papers; (7) Exemption 7–5 U.S.C. 552(b)(7). (ix) Those portions of official reports Records or information compiled for of inspection, reports of the Inspector civil or criminal law enforcement pur- General, audits, investigations, or sur- poses, including the implementation of veys pertaining to safety, security, or Executive Orders or regulations issued the internal management, administra- pursuant to law. This exemption may tion, or operation of NSF, when these exempt from mandatory disclosure records have traditionally been treated records not originally created, but by the courts as privileged against dis- later gathered, for law enforcement closure in litigation. purposes. (6) Exemption 6–5 U.S.C. 552(b)(6). Per- (i) This exemption applies only to the sonnel and medical files and similar extent that the production of such law files, the disclosure of which would enforcement records or information: constitute a clearly unwarranted inva- (A) Could reasonably be expected to sion of personal privacy. The exemp- interfere with enforcement pro- tion may apply to protect the privacy ceedings; of living persons and of living close (B) Would deprive a person of the survivors of a deceased person identi- right to a fair trial or an impartial ad- fied in a record. Information in such judication; files which is not otherwise exempt (C) Could reasonably be expected to from disclosure pursuant to other pro- constitute an unwarranted invasion of visions of this section will be released personal privacy of a living person, or to the subject or to his designated legal living close survivors of a deceased per- representative, and may be disclosed to son identified in a record; others with the subject’s written con- (D) Could reasonably be expected to sent. Examples of records exempt from disclose the identity of a confidential disclosure include, but are not limited source, including a source within the to: Federal Government, or a State, local, (i) Reports, records, and other mate- or foreign agency or authority, or any rials pertaining to individual cases in private institution, that furnished in- which disciplinary or other administra- formation on a confidential basis; and tive action has been or may be taken. information furnished by a confidential Opinions and orders resulting from source and obtained by a criminal law those administrative or disciplinary enforcement authority in a criminal proceedings shall be disclosed without investigation; identifying details if used, cited, or re- (E) Would disclose techniques and lied upon as precedent; procedures for law enforcement inves- (ii) Records compiled to evaluate or tigations or prosecutions, or would dis- adjudicate the suitability of candidates close guidelines for law enforcement for employment, and the eligibility of investigations or prosecutions if such individuals (civilian or contractor em- disclosure could reasonably be ex- ployees) for security clearances, or for pected to risk circumvention of the access to classified information; law, or (iii) Reports and evaluations which (F) Could reasonably be expected to reflect upon the qualifications or com- endanger the life or physical safety of petence of individuals; any individual. (iv) Personal information such as (ii) Examples of records normally ex- home addresses and telephone and fac- empt from disclosure include, but are simile numbers, private email address- not limited to: es, social security numbers, dates of (A) The identity and statements of birth, marital status and the like; complainants or witnesses, or other (v) The exemption also applies when material developed during the course the fact of the existence or nonexist- of an investigation and all materials ence of a responsive record would itself prepared in connection with related reveal personal, private information, government litigation or adjudicative and the public interest in disclosure is proceedings;

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(B) The identity of firms or individ- (1) Business Information means com- uals investigated for alleged irregular- mercial or financial information ob- ities involving NSF grants, contracts tained by the Foundation from a sub- or other matters when no indictment mitter that may be protected from dis- has been obtained, no civil action has closure under Exemption 4 of the FOIA been filed against them by the United and § 612.7(a)(4). States, or no government-wide public (2) Submitter means any person or en- suspension or debarment has occurred; tity from whom the Foundation ob- (C) Information obtained in contains business information, directly or fidence, expressed or implied, in the indirectly. The term includes corpora- course of a criminal investigation by tions; state, local, and tribal govern- the NSF Office of the Inspector Gen- ments; and foreign governments. eral. (c) Designation of business information. (iii) The exclusions contained in 5 A submitter of business information U.S.C. 552(c)(1) and (2) may also apply must use good faith efforts to des- to these records. ignate, by appropriate markings, either (8) Exemption 8–5 U.S.C. 552(b)(8). at the time of submission or at a rea- Records contained in or related to ex- sonable time thereafter, any portions amination, operating, or condition re- of its submission that it considers to be ports prepared by, on behalf of, or for protected from disclosure under Ex- the use of any agency responsible for emption 4. These designations will ex- the regulation or supervision of finan- pire ten years after the date of the sub- cial institutions. mission unless the submitter requests, (9) Exemption 9–5 U.S.C. 552(b)(9). and provides justification for, a longer Records containing geological and geo- designation period. physical information and data, including maps, concerning wells. (d) Notice to submitters. The Founda- (b) Deletion of exempt portions and tion will provide a submitter with identifying details. Any reasonably seg- prompt written notice of a FOIA re- regable portion of a record will be pro- quest or administrative appeal that vided to requesters after deletion of the seeks its business information wher- portions which are exempt. Whenever ever required under this section, in any final opinion, order, or other mate- order to give the submitter an oppor- rials required to be made available re- tunity to object to disclosure of any lates to a private party or parties and specified portion of that information the release of the name(s) or other under paragraph (f) of this section. The identifying details will constitute a notice shall either describe the busi- clearly unwarranted invasion of per- ness information requested or include sonal privacy, the record shall be pub- copies of the requested records or lished or made available with such record portions containing the infor- identifying details left blank, or shall mation. be published or made available with ob- (e) Where notice is required. Notice viously fictitious substitutes and with will be given to a submitter wherever: a notification such as the following: (1) The information has been des- Names of parties and certain other ignated in good faith by the submitter identifying details have been removed as information considered protected (and fictitious names substituted) in from disclosure under Exemption 4; or order to prevent a clearly unwarranted (2) The Foundation has reason to be- invasion of the personal privacy of the lieve that the information may be pro- individuals involved. tected from disclosure under Exemp- tion 4. § 612.8 Business information. (f) Opportunity to object to disclosure. (a) In general. Business information NSF will allow a submitter a reason- obtained by the Foundation from a able time, consistent with statutory submitter of that information will be requirements, to respond to the notice disclosed under the FOIA only under described in paragraph (d) of this sec- this section’s procedures. tion. If a submitter has any objection (b) Definitions. For purposes of this to disclosure, it must submit a detailed section: written statement. The statement

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must specify all grounds for with- written notice of any final decision to holding any portion of the information disclose the information. under any exemption of the FOIA and, (i) Notice of FOIA lawsuit. Whenever a in the case of Exemption 4, must show requester files a lawsuit seeking to why the information is a trade secret, compel the disclosure of business infor- or commercial or financial information mation, the Foundation will promptly that is privileged or confidential. In notify the submitter(s). Whenever a the event that a submitter fails to re- submitter files a lawsuit seeking to spond within the time specified in the prevent the disclosure of business in- notice, the submitter will be consid- formation, the Foundation will notify ered to have no objection to disclosure the requester(s). of the information. Information provided by a submitter under this para- § 612.9 Appeals. graph may itself be a record subject to (a) Appeals of denials. You may appeal disclosure under the FOIA. a denial of your request to the General (g) Notice of intent to disclose. The Counsel, National Science Foundation, Foundation will consider a submitter’s 4201 Wilson Boulevard, Suite 1265, Ar- objections and specific grounds for non- lington, VA 22230. You must make your disclosure in deciding whether to dis- appeal in writing and it must be re- close business information. Whenever ceived by the Office of the General it decides to disclose business informa- Counsel within ten days of the receipt tion over the objection of a submitter, of the denial (weekends, legal holidays, the Foundation will give the submitter and the date of receipt excluded). You written notice, which will include: must clearly mark your appeal letter (1) A statement of the reason(s) why and the envelope or your electronic the submitter’s disclosure objections submission as a ‘‘Freedom of Informa- were not sustained; tion Act Appeal.’’ Your appeal letter must include a copy of your written re- (2) A description of the business in- quest and the denial together with any formation to be disclosed; and written argument you wish to submit. (3) A specified disclosure date, which (b) Responses to appeals. A written de- will be a reasonable time subsequent to cision on your appeal will be made by the notice. the General Counsel. A decision affirm- (h) Exceptions to notice requirements. ing an adverse determination in whole The notice requirements of paragraphs or in part will contain a statement of (d) and (g) of this section will not apply the reason(s) for the affirmance, in- if: cluding any FOIA exemption(s) ap- (1) The Foundation determines that plied, and will inform you of the FOIA the information should not be disclosed provisions for court review of the deci- (the Foundation protects from disclo- sion. If the adverse determination is re- sure to third parties information about versed or modified on appeal, in whole specific unfunded applications, includ- or in part, you will be notified in a ing pending, withdrawn, or declined written decision and your request will proposals); be reprocessed in accordance with that (2) The information lawfully has been appeal decision. published or has been officially made (c) When appeal is required. If you available to the public; wish to seek review by a court of any (3) Disclosure of the information is denial, you must first appeal it under required by statute (other than the this section. FOIA) or by a regulation issued in accordance with the requirements of Ex- § 612.10 Fees ecutive Order 12600 (3 CFR, 1988 Comp., (a) In general. NSF will charge for p. 235); or processing requests under the FOIA in (4) The designation made by the sub- accordance with paragraph (c) of this mitter under paragraph (c) of this sec- section, except where fees are limited tion appears obviously frivolous, in under paragraph (d) of this section or which case the Foundation will, within where a waiver or reduction of fees is a reasonable time prior to a specified granted under paragraph (k) of this disclosure date, give the submitter section. If fees are applicable, NSF will

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itemize the amounts charged. NSF may program of scholarly research. To be in collect all applicable fees before send- this category, a requester must show ing copies of requested records to a re- that the request is authorized by and quester. Requesters must pay fees by made under the auspices of a qualifying check or money order made payable to institution and that the records are not the Treasury of the United States. sought for a commercial use, but are (b) Definitions. For purposes of this sought to further scholarly research. section: (5) Noncommercial scientific institution (1) Commercial use request means a re- means an institution that is not oper- quest from or on behalf of a person who ated on a ‘‘commercial’’ basis, as that seeks information for a use or purpose term is defined in paragraph (b)(1) of that furthers his or her commercial, this section, and that is operated solely trade, or profit interests, which can infor the purpose of conducting scientific clude furthering those interests research, the results of which are not through litigation. When it appears intended to promote any particular that the requester will put the records product or industry. To be in this cat- to a commercial use, either because of egory, a requester must show that the the nature of the request itself or be- request is authorized by and made cause NSF has reasonable cause to under the auspices of a qualifying in- doubt a requester’s stated use, NSF stitution and that the records are not will provide the requester a reasonable sought for a commercial use or to pro- opportunity to submit further clari- mote any particular product or indus- fication. try, but are sought to further scientific (2) Direct costs means those expenses research. that an agency actually incurs in searching for and duplicating (and, in (6) Representative of the news media or the case of commercial use requests, news media requester means any person reviewing) records to respond to a actively gathering news for an entity FOIA request. Direct costs include, for that is organized and operated to pub- example, the salary of the employee lish or broadcast news to the public. performing the work (the basic rate of The term news means information that pay for the employee, plus 16 percent of is about current events or that would that rate to cover benefits) and the be of current interest to the public. Ex- cost of operating duplication machin- amples of news media entities include ery. Not included in direct costs are television or radio stations broad- overhead expenses such as the costs of casting to the public at large and pub- space and heating or lighting of the fa- lishers of periodicals (but only in those cility in which the records are kept. instances where they can qualify as (3) Duplication means the making of a disseminators of ‘‘news’’) who make copy of a record, or of the information their products available for purchase or contained in it, necessary to respond to subscription by the general public. For a FOIA request. Copies can take the ‘‘freelance’’ journalists to be regarded form of paper, microform, audiovisual as working for a news organization, materials, or electronic records (for ex- they must demonstrate a solid basis for ample, magnetic tape or compact disk) expecting publication through that or- among others. NSF will honor a re- ganization. A publication contract quester’s specified preference of form would be the clearest proof, but NSF or format of disclosure if the record is shall also look to the past publication readily reproducible by NSF, with rea- record of a requester in making this de- sonable effort, in the requested form or termination. To be in this category, a format. requester must not be seeking the re- (4) Educational institution means a quested records for a commercial use. preschool, a public or private elemen- However, a request for records sup- tary or secondary school, an institu- porting the news dissemination function of undergraduate higher edu- tion of the requester will not be consid- cation, an institution of graduate high- ered to be for a commercial use. er education, an institution of profes- (7) Review means the examination of sional education, or an institution of a record located in response to a re- vocational education that operates a quest in order to determine whether

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any portion of it is exempt from disclo- search by professional personnel is con- sure. It also includes processing any ducted (for example, where the task of record for disclosure, for example, determining which records fall within a doing all that is necessary to redact it request requires professional time) the and prepare it for disclosure. Review charge is $11.50 for each quarter hour. costs are recoverable even if a record (iii) Computer searches of records. NSF ultimately is not disclosed. Review will charge at the actual direct cost of time includes time spent considering conducting the search. This will in- any formal objection to disclosure clude the cost of operating the com- made by a business submitter under puter system(s) for that portion of op- § 612.8, but does not include time spent erating time that is directly attrib- resolving general legal or policy issues utable to searching for records respon- regarding the application of exemp- sive to a FOIA request and operator/ tions. programmer salary (i.e., basic pay plus (8) Search means the process of look- 16 percent) apportionable to the search. ing for and retrieving records or infor- When NSF can establish a reasonable mation responsive to a request. It in- agency-wide average rate for computer cludes page by page or line by line operating costs and operator/pro- identification of information within grammer salaries involved in FOIA records and also includes reasonable ef- searches, the Foundation will do so and forts to locate and retrieve information charge accordingly. from records maintained in paper or (iv) Archived records. For requests electronic form or format, or stored in that require the retrieval of records Federal Records Centers. NSF will en- stored by NSF at a Federal records sure that searches are done in the most center operated by the National Ar- efficient and least expensive manner chives and Records Administration reasonably possible. For example, NSF (NARA), additional costs will be will not search line by line where du- charged in accordance with the Trans- plicating an entire document would be actional Billing Rate Schedule estab- quicker and less expensive. lished by NARA. (c) Fees. In responding to FOIA re- (2) Duplication. Duplication fees will quests, NSF will charge the following be charged to all requesters, subject to fees unless a waiver or reduction of fees the limitations of paragraph (d) of this has been granted under paragraph (k) section. For a paper photocopy of a of this section: record (no more than one copy of which (1) Search. (i) Search fees will be need be supplied), the fee will be ten charged for all requests, other than re- cents per page. For copies produced by quests made by educational institu- computer, such as print outs, tapes, tions, noncommercial scientific insti- compact disks, or other electronic tutions, or representatives of the news media, NSF will charge the direct media, subject to the limitations of costs, including operator time, of pro- paragraph (d) of this section. NSF may ducing the copy. Where paper docu- charge for time spent searching even if ments must be scanned in order to responsive records are not located or comply with a requester’s preference to are withheld entirely as exempt from receive the records in an electronic for- disclosure. mat, the requester shall pay the direct (ii) Manual searches for records. When- costs associated with scanning those ever feasible, NSF will charge at the materials. For other forms of duplica- salary rate(s) (i.e., basic pay plus 16 tion, NSF will charge the direct costs percent) of the employee(s) conducting of that duplication. the search. Where a homogeneous class (3) Review. Review fees will be of personnel is used exclusively (e.g., charged to requesters who make a com- all administrative/clerical or all profes- mercial use request. Review fees will sional/executive), NSF has established be charged only for the initial record an average rate for the range of grades review, in other words, the review done typically involved. Routine search for when NSF determines whether an ex- records by administrative personnel emption applies to a particular record are charged at $5.50 for each quarter or record portion at the initial request hour. When a non-routine, non-clerical level. NSF may charge for review even

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if a record ultimately is not disclosed. not be done until the requester agrees No charge will be made for review at to pay the anticipated total fee. Any the administrative appeal level for an such agreement should be memorial- exemption already applied. However, ized in writing. A notice under this records or record portions withheld paragraph will offer the requester an under an exemption that is subse- opportunity to discuss the matter with quently determined not to apply may Foundation personnel in order to refor- be reviewed again to determine wheth- mulate the request to meet the reer any other exemption not previously quester’s needs at a lower cost, if pos- considered applies; the costs of that re- sible. If a requester fails to respond view are chargeable where it is made within 60 days of notice of actual or es- necessary by a change of cir- timated fees with an agreement to pay cumstances. Review fees will be those fees, NSF may administratively charged at the salary rate (basic pay close the request. plus 16%) of the employee(s) per- (f) Charges for other services. Apart forming the review. from the other provisions of this sec- (d) Limitations on charging fees. (1) No tion, when NSF chooses as a matter of search fee will be charged for requests administrative discretion to provide a by educational institutions, non- requested special service such as certi- commercial scientific institutions, or fying that records are true copies or representatives of the news media. (2) sending them by other than ordinary Except for requesters seeking records mail, the direct costs of providing the for a commercial use, NSF will provide service will be charged to the re- without charge: quester. (i) The first 100 pages of duplication (g) Charging interest. NSF may charge (or the cost equivalent); and interest on any unpaid bill starting on (ii) The first two hours of search (or the 31st day following the date of bill- the cost equivalent). ing the requester. Interest charges will (3) Whenever a total fee calculated be assessed at the rate provided in 31 under paragraph (c) of this section is U.S.C. 3717 and will accrue from the $25.00 or less for any request, no fee date of the billing until payment is re- will be charged. ceived by NSF. NSF may follow the (4) The provisions of paragraphs (d)(2) provisions of the Debt Collection Act of and (3) of this section work together. 1982 (Pub. L. 97–365, 96 Stat. 1749), as This means that noncommercial re- amended, and its administrative proce- questers will be charged no fees unless dures, including the use of consumer the cost of search in excess of two reporting agencies, collection agencies, hours plus the cost of duplication in and offset. excess of 100 pages totals more than (h) Aggregating requests. Where NSF $25.00. Commercial requesters will not reasonably believes that a requester or be charged unless the costs of search, a group of requesters acting together is review, and duplication total more attempting to divide a request into a than $25.00. series of requests for the purpose of (e) Notice of anticipated fees in excess avoiding fees, the agency may aggre- of $25.00. When NSF determines or esti- gate those requests and charge accord- mates that the fees to be charged under ingly. NSF may presume that multiple this section will exceed $25.00, it will requests of this type made within a 30- notify the requester of the actual or es- day period have been made in order to timated amount of the fees, unless the avoid fees. Where requests are sepa- requester has indicated a willingness to rated by a longer period, NSF will ag- pay fees as high as those anticipated. If gregate them only where there exists a only a portion of the fee can be esti- solid basis for determining that aggre- mated readily, NSF will advise the re- gation is warranted under all the cir- quester that the estimated fee may be cumstances involved. Multiple requests only a portion of the total fee. In cases involving unrelated matters will not be in which a requester has been notified aggregated. that actual or estimated fees exceed (i) Advance payments. (1) For requests $25.00, the request will not be consid- other than those described in para- ered perfected and further work will graphs (i) (2) and (3) of this section,

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NSF will not require the requester to contribute significantly to public un- make an advance payment, -in other derstanding of the operations or activi- words, a payment made before work is ties of the government and is not pri- begun or continued on a request. Pay- marily in the commercial interest of ment owed for work already completed the requester. (i.e., a prepayment before copies are (2) To determine whether the first fee sent to a requester) is not an advance waiver requirement is met, NSF will payment. consider the following factors: (2) Where NSF determines or esti- (i) The subject of the request: Wheth- mates that a total fee to be charged er the subject of the requested records under this section will be more than concerns ‘‘the operations or activities $250.00, it may require the requester to of the government.’’ The subject of the make an advance payment of an requested records must concern identi- amount up to the amount of the entire fiable operations or activities of the anticipated fee before beginning to federal government, with a connection process the request, except where it re- that is direct and clear, not remote or ceives a satisfactory assurance of full attenuated. payment from a requester that has a (ii) The informative value of the in- history of prompt payment. formation to be disclosed: Whether dis- (3) Where a requester has previously closure is ‘‘likely to contribute’’ to an failed to pay a properly charged fee to understanding of government oper- any agency within 30 days of the date ations or activities. The disclosable of billing, NSF may require the re- portions of the requested records must quester to pay the full amount due, be meaningfully informative about plus any applicable interest, and to government operations or activities in make an advance payment of the full order to be ‘‘likely to contribute’’ to an amount of any anticipated fee, before increased public understanding of those NSF begins to process a new request or operations or activities. Disclosure of continues to process a pending request information already in the public do- from that requester. main, in either duplicative or substan- (4) In cases in which NSF requires ad- tially identical form, is unlikely to vance payment or payment due under contribute to such understanding paragraph (i)(2) or (3) of this section, where nothing new would be added to the request will not be considered per- the public’s understanding. fected and further work will not be (iii) The contribution to an under- done on it until the required payment standing of the subject by the public is received. likely to result from disclosure: (j) Other statutes specifically providing Whether disclosure of the requested infor fees. The fee schedule of this section formation will contribute to ‘‘public does not apply to fees charged under understanding.’’ The disclosure must any statute that specifically requires contribute to the understanding of a an agency to set and collect fees for reasonably broad audience of persons particular types of records. Where interested in the subject as opposed to records responsive to requests are the individual understanding of the re- maintained for distribution by agencies quester. A requester’s expertise in the operating such statutorily based fee subject area and ability and intention schedule programs, NSF will inform re- to effectively convey information to questers of the steps for obtaining the public will be considered. A rep- records from those sources so that they resentative of the news media as de- may do so most economically. fined in paragraph (b)(6) of this section (k) Waiver or reduction of fees. (1) will normally be presumed to satisfy Records responsive to a request will be this consideration. furnished without charge or at a (iv) The significance of the contribu- charge reduced below that established tion to public understanding: Whether under paragraph (c) of this section disclosure is likely to contribute ‘‘sig- where NSF determines, based on all nificantly’’ to public understanding of available information, that disclosure government operations or activities. of the requested information is in the The public’s understanding of the sub- public interest because it is likely to ject in question must be enhanced by

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the disclosure to a significant extent as § 612.11 Other rights and services. compared to the level of public under- Nothing in this part will be con- standing existing prior to the disclo- strued to entitle any person, as of sure. NSF will make no value judg- right, to any service or to the disclo- ments about whether information that sure of any record to which such person would contribute significantly to pub- is not entitled under the FOIA. lic understanding of the operations or activities of the government is ‘‘important’’ enough to be made public. PART 613—PRIVACY ACT (3) To determine whether the second REGULATIONS fee waiver requirement is met, NSF will consider the following factors: Sec. 613.1 General provisions. (i) The existence and magnitude of a 613.2 Requesting access to records. commercial interest: Whether the re- 613.3 Responding to requests for access to quester has a commercial interest that records. would be furthered by the requested 613.4 Amendment of records. disclosure. NSF will consider any com- 613.5 Exemptions. mercial interest of the requester (with 613.6 Other rights and services. reference to the definition of ‘‘com- AUTHORITY: 5 U.S.C. 552a. mercial use’’ in paragraph (b)(1) of this SOURCE: 70 FR 43068, July 26, 2005, unless section), or of any person on whose be- otherwise noted. half the requester may be acting, that would be furthered by the requested § 613.1 General Provisions. disclosure. Requesters will be given an This part sets forth the National opportunity in the administrative Science Foundation procedures under process to provide explanatory infor- the Privacy Act of 1974. The rules in mation regarding this consideration. this part apply to all records in sys- (ii) The primary interest in disclo- tems of records maintained by NSF sure: Whether any identified commer- that are retrieved by an individual’s cial interest of the requester is suffi- name or personal identifier. They de- ciently large, in comparison with the scribe the procedures by which individ- public interest in disclosure, that dis- uals, as defined in the Privacy Act, closure is ‘‘primarily in the commer- may request access to records about cial interest of the requester.’’ A fee themselves and request amendment or waiver or reduction is justified where correction of those records. All Privacy the public interest standard is satisfied Act requests for access to records are and that public interest is greater in also processed under the Freedom of magnitude than that of any identified Information Act, 5 U.S.C. 552 (as pro- commercial interest in disclosure. NSF vided in part 612 of this chapter), which ordinarily will presume that where a gives requesters the benefit of both news media requester has satisfied the statutes. Notice of systems of records public interest standard, the public in- maintained by the National Science terest will be the interest primarily Foundation are published in the FED- served by disclosure to that requester. ERAL REGISTER. Disclosure to data brokers or others who merely compile and market gov- § 613.2 Requesting access to records. ernment information for direct eco- (a) Where to make a request. You may nomic return will not be presumed to make a request for access to NSF primarily serve the public interest. records about yourself by appearing in (4) Where only some of the requested person at the National Science Founda- records satisfy the requirements for a tion or by making a written request. If waiver of fees, a waiver will be granted you choose to visit the Foundation, for those records. you must contact the NSF Security (5) Requests for the waiver or reduc- Desk and ask to speak with the Foun- tion of fees should address the factors dation’s Privacy Act Officer of the listed in paragraphs (k)(2) and (3) of General Counsel. Written requests this section, insofar as they apply to should be sent to the NSF Privacy Act each request. Officer, National Science Foundation,

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4201 Wilson Boulevard, Suite 1265, Ar- records, you may also, at your option, lington, VA 22230. Written requests are include your social security number, recommended, since in many cases it and/or date and place of birth. An indi- may take several days to determine vidual reviewing his or her record(s) in whether a record exists, and additional person may be accompanied by an indi- time may be required for record(s) re- vidual of his or her choice after signing trieval and processing. a written statement authorizing that (b) Description of requested records. individual’s presence. Individuals re- You must describe the records that you questing or authorizing the disclosure seek in enough detail to enable NSF of records to a third party must verify personnel to locate the system of their identity and specifically name records containing them with a reason- the third party and identify the infor- able amount of effort. Providing information to be disclosed. mation about the purpose for which the (d) Verification of guardianship. When information was collected, applicable making a request as the parent or time periods, and name or identifying guardian of a minor or as the guardian number of each system of records in of someone determined by a court of which you think records about you competent jurisdiction to be incom- may be kept, will help speed the proc- petent, for access to records about that essing of your request. NSF publishes individual, you must establish: notices in the FEDERAL REGISTER that (1) The identity of the record subject, describe the systems of records main- by stating individuals’ name and cur- tained by the Foundation. The Office of rent address and, at your option, the the Federal Register publishes a bien- social security number and/or date and nial ‘‘Privacy Act compilation’’ that place of birth of the individual; includes NSF system notices. This (2) Your own identity, as required in compilation is available in many large paragraph (c) of this section; reference and university libraries, and (3) That you are the parent or guard- can be accessed electronically at the ian of that individual, which you may Government Printing Office’s Web site prove by providing a copy of the indi- at www.access.gpo/suldocs/aces/ vidual’s birth certificate showing your PrivacyAct.shtml. parentage or by providing a court order (c) Verification of identity. When re- establishing your guardianship; and questing access to records about your- (4) That you are acting on behalf of self, NSF requires that you verify your that individual in making the request. identity in an appropriate fashion. In- (e) The procedures of paragraphs (a) dividuals appearing in person should be through (d) of this section shall also prepared to show reasonable picture apply to requests made pursuant to 5 identification such as driver’s license, U.S.C. 552a(c)(3). government or other employment identification card, or passport. Written re- § 613.3 Responding to requests for ac- quests must state your full name and cess to records. current address. you must sign your re- (a) Timing of responses to requests. The quest and your signature must either Foundation will make reasonable ef- be notarized, or submitted by you fort to act on a request for access to under 28 U.S.C. 1746, a law that permits records within 20 days of its receipt by statements to be made under penalty the Privacy Act Officer (excluding date of perjury as a substitute for notariza- of receipt, weekends, and legal holi- tion. While no specific form is required, days) or from the time any required you may obtain information about identification is received by the Pri- these required elements for requests vacy Act Officer, whichever is later. In from the NSF Privacy Act Officer, determining which records are respon- Suite 1265, 4201 Wilson Blvd, Arlington, sive to a request, the Foundation will VA 22230, or from the NSF Home Page include only records in its possession under ‘‘Public & media Information— as of the date of receipt. When the FOIA and Privacy Act’’ at http:// agency cannot complete processing of a www.nsf.gov/home/pubinfo/foia.htm. In request within 20 working days, the order to help agency personnel in lo- foundation will send a letter explaining cating and identifying requested the delay and notifying the requester

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of the date by which processing is ex- charged for the record unless the pected to be completed. record has been exempted from access (b) Authority to grant or deny requests. under Exemptions (j)(2) or (k)(2) of the The Privacy Act Officer, or his or her Privacy Act. designee in the office with responsibility for the requested records, is au- § 613.4 Amendment of records. thorized to grant or deny access to a (a) Where to make a request. An indi- Foundation record. vidual may request amendment of (c) Granting access to records. When a records pertaining to him or her that determination is made to grant a re- are maintained in an NSF Privacy Act quest for access in whole or part, the system of records, except that certain requester will be notified as soon as records described in paragraph (h) of possible of the Foundation’s decision. this section are exempt from amend- Where a requester has previously failed ment. Request for amendment of to pay a properly charged fee to any records must be made in writing to the agency within 30 days of the date of NSF Privacy Act Officer, National billing, NSF may require the requester Science Foundation, Suite 1265, 4201 to pay the full amount due, plus any Wilson Boulevard, Arlington, VA 22230. applicable interest, and to make an ad- (b) How to make a request. Your re- vance payment of the full amount of quest should identify each particular any anticipated fee, before NSF begins to process a new request or continues record in question, state the amend- to process a pending request from that ment you want to take place and speci- requester. fy why you believe that the record is (1) Requests made in person. When a not accurate, relevant, timely, or com- request is made in person, if the plete. You may submit any documenta- records can be found, and reviewed for tion that you think would be helpful. access without unreasonable disruption Providing an edited copy of the of agency operations, the Foundation record(s) showing the desired change may disclose the records to the re- will assist the agency in making a de- quester directly upon payment of any termination about your request. If you applicable fee. A written record should believe that the same information is be made documenting the granting of maintained in more than one NSF sys- the request. If a requester is accom- tem of records you should include that panied by another person, the re- information in your request. You must quester shall be required to authorize sign your request and provide in writing any discussion of the records verification of your identity as speci- in the presence of the other person. fied in 613.2(c). (2) Requests made in writing. The (c) Timing of responses to requests. The Foundation will send the records to the Privacy Act Officer, or his or her des- requester promptly upon payment of ignee, will acknowledge receipt of re- any applicable fee. quest for amendment within 10 work- (d) Denying access to records. The re- ing days of receipt. Upon receipt of a quester will be notified in writing of proper request the Privacy Act Officer any determination to deny a request will promptly confer with the NSF Di- for access to records. The notification rectorate or Office with responsibility letter will be signed by the Privacy Act for the record to determine if the re- Officer, or his or designee, as the indi- quest should be granted in whole or vidual responsible for the denial and part. will include a brief statement of the (d) Granting request for amendment. reason(s) for the denial, including any When a determination is made to grant Privacy Act exemption(s) applied in de- a request for amendment in whole or nying the request. part, notification to the requester will (e) Fees. The Foundation will charge be made as soon as possible, normally for duplication of records requested within 30 wording days of the Privacy under the Privacy Act in the same way Act Officer receiving the request, de- it charges for duplication under the scribing the amendment made and in- Freedom of Information Act (see CFR cluding a copy of the amended record, 612.10). No search or review fee may be in disclosable form.

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(e) Denying request for amendment. (2) Amendment appeal denied—State- When a determination is made that ment of disagreement. If on appeal the amendment, in whole or part, is unwar- General Counsel, or his or her designee, ranted, the matter shall be brought to upholds a denial of a request for the attention of the Inspector General, amendment of records, you will be no- if it pertains to records maintained by tified in writing of the reasons why the the Office of the Inspector General, or appeal was denied and advised of your to the attention of the General Coun- right to seek judicial review of the de- sel, if it pertains to other NSF records. cision. The letter will also notify you If the General Counsel or Inspector of your right to file with the Founda- General or their designee agrees with tion a concise statement setting forth the determination that amendment is the reasons for your disagreement with not warranted, the Privacy Act Officer the refusal of the Foundation to amend will notify the requester in writing, the record. The statement should be normally within 30 working days of the sent to the Privacy Act Officer, who Privacy Act Officer receiving the re- will ensure that a copy of the state- quest. The notification letter will be ment is placed with the disputed signed by the Privacy Act Officer or his record. A copy of the statement will be or her designee, and will include a included with any subsequent disclo- statement of the reason(s) for the de- sure of the record. nial and how to appeal the decision. (h) Records not subject to amendment. (f) Appealing a denial. You may ap- The following records are not subject peal a denial of a request to amend to amendment: records to the General Counsel, Na- tional Science Foundation, 4201 Wilson (1) Transcripts of testimony given Blvd., Suite 1265, Arlington, VA 22230. under oath or written statements made You must make your appeal in writing under oath; and it must be received by the Office of (2) Transcripts of grand jury pro- the General Counsel within ten days of ceedings, judicial proceedings, or the receipt of the denial (weekends, quasi-judicial proceedings, which are legal holidays, and the date of receipt the official record of those proceedings; excluded). Clearly mark your appeal (3) Pre-sentence records that origi- letter and envelope ‘‘Privacy Act Ap- nated with the courts; and peal.’’ Your appeal letter must include (4) Records in systems of records that a copy of your original request for have been exempted from amendment amendment and the denial letter, along under Privacy Act, 5 U.S.C. 552a(j) or with any additional documentation or (k) by notice published in the FEDERAL argument you wish to submit in favor REGISTER. of amending the records. It must be signed by you or your officially des- § 613.5 Exemptions. ignated representative. (a) Fellowships and other support. Pur- (g) Responses to appeals. The General suant to 5 U.S.C. 552a(k)(6), the Foun- Counsel, or his or her designee, will dation hereby exempts from the appli- normally render a decision on the ap- cation of 5 U.S.C. 552a(c)(3) and (d) any peal within thirty working days after materials which would reveal the iden- proper receipt of the written appeal by tity of references of fellowship or other the General Counsel. If additional time award applicants or nominees, or re- to make a determination is necessary you will be advised in writing of the viewers of applicants for Federal con- need for an extension. tracts (including grants and coopera- (1) Amendment appeal granted. If on tive agreements) contained in any of appeal the General Counsel, or his or the following systems of records: her designee, determines that amend- (1) ‘‘Fellowships and Other Awards,’’ ment of the record should take place, (2) ‘‘Principal Investigator/Proposal you will be notified as soon as possible File and Associated Records,’’ of the Foundation’s decision. The noti- (3) ‘‘Reviewer/Proposal File and Asso- fication will describe the amendment ciated Records,’’ and made and include a copy of the amend- (4) ‘‘Reviewer/Fellowship and Other ed record, in disclosable form. Awards File and Associated Records.’’

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(b) OIG Files Compiled for the Purpose uates & Follow-up Files’’ from the ap- of a Criminal Investigation and for Re- plication of 5 U.S.C. 552a(c)(3), (d), lated Purposes. Pursuant to 5 U.S.C. (e)(1), (e)(4)(G), (H), and (I), and (f). 552a(j)(2), the Foundation hereby ex- (h) Other records. The Foundation empts the system of records entitled may also assert exemptions for records ‘‘Office of Inspector General Investiga- received from another agency that tive Files,’’ insofar as it consists of in- could properly be claimed by that formation compiled for the purpose of agency in responding to a request. a criminal investigation or for other purposes within the scope of 5 U.S.C. § 613.6 Other rights and services. 552a(j)(2), from the application of 5 Nothing in this subpart shall be con- U.S.C. 552a, except for subsections (b), strued to entitle any person, as of (c)(1) and (2), (e)(4)(A) through (F), right, to any service or to the disclo- (e)(6), (7), (9), (10) and (11), and (i). sure of any record to which such person (c) OIG and ACA Files Compiled for is not entitled under the Privacy Act. Other Law Enforcement Purposes. Pursu- ant to 5 U.S.C. 552a(k)(2), the Founda- PART 614—GOVERNMENT IN THE tion hereby exempts the systems of SUNSHINE ACT REGULATIONS OF records entitled ‘‘Office of Inspector General Investigative Files’’ and THE NATIONAL SCIENCE BOARD ‘‘Antarctic Conservation Act Files’’ in- Sec. sofar as they consist of information 614.1 General rule. compiled for law enforcement purposes 614.2 Grounds for closing meetings. other than material within the scope of 614.3 Materials relating to closed portions 5 U.S.C. 552a(j)(2), from the application of meetings. of 5 U.S.C. 552a(c)(3), (d), (e)(1), 614.4 Opening of transcript or recording. (e)(4)(G), (H), and (I), and (f). 614.5 Public announcement. (d) Investigations of Scientific Mis- 614.6 Meeting changes. conduct. Pursuant to 5 U.S.C. 552a(k)(2) 614.7 Record vote. 614.8 Application to Board Executive Com- and (k)(5), the Foundation hereby ex- mittee. empts from the application of 5 U.S.C. 552a(c)(3) and (d) any materials which AUTHORITY: Government in the Sunshine would reveal the identity of confiden- Act, sec. 552b of title 5, U.S.C.; 90 Stat. 1241. tial sources of information contained SOURCE: 42 FR 14719, Mar. 16, 1977, unless in the following system of records: otherwise noted. ‘‘Debarment/Scientific Misconduct Files.’’ § 614.1 General rule. (e) Personnel Security Clearances. Pur- Except as otherwise provided in these suant to 5 U.S.C. 552a(k)(5), the Foun- regulations, every portion of every dation hereby exempts from the appli- meeting of the National Science Board cation of 5 U.S.C. 552a(c)(3) and (d) any will be open to public observation. materials which would reveal the identity of confidential sources of informa- § 614.2 Grounds for closing meetings. tion contained in the following system (a) The National Science Board may of records: ‘‘Personnel Security.’’ by record vote close any portion of any (f) Applicants for Employment. Records meeting if it properly determines that on applicants for employment at NSF an open meeting: are covered by the Office of Personnel (1) Is likely to disclose matters that Management (OPM) government-wide (i) are specifically authorized under system notice ‘‘Recruiting, Examining criteria established by Executive Order and Placement Records.’’ These records to be kept secret in the interests of na- are exempted as claimed in 5 CFR tional defense or foreign policy and (ii) 297.501(b)(7). are in fact properly classified pursuant (g) Statistical records. Pursuant to 5 to the Executive Order; U.S.C. 552a(k)(4), the Foundation here- (2) Is likely to relate solely to the in- by exempts the systems of records enti- ternal personnel rules and practices of tled ‘‘Doctorate Records Files,’’ ‘‘Doc- the National Science Foundation; torate Work History Files,’’ and ‘‘Na- (3) Is likely to disclose matters spe- tional Survey of Recent College Grad- cifically exempted from disclosure by

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statute (other than 5 U.S.C. 552): Pro- close it to the public for any reason re- vided, That the statute (i) requires in ferred to in paragraph (a) (5), (6), or (7) such a manner as to leave no discretion of this section. The request should be on the issue that the matters be with- addressed to the Executive Officer, Na- held from the public, or (ii) establishes tional Science Board, National Science particular criteria for withholding or Foundation, 4201 Wilson Boulevard, Ar- refers to particular types of matters to lington, VA 22230. It will be circulated be withheld; to Members of the Board if received at (4) Is likely to disclose trade secrets least three full days before the meet- and commercial or financial informa- ing, and on motion of any Member the tion obtained from a person and privi- Board will determine by record vote leged or confidential; whether to close the affected portion of (5) Is likely to involve accusing any the meeting. person of a crime, or formally cen- [42 FR 14719, Mar. 16, 1977, as amended at 59 suring any person; FR 37438, July 22, 1994] (6) Is likely to disclose personal information where the disclosure would § 614.3 Materials relating to closed constitute a clearly unwarranted inva- portions of meetings. sion of personal privacy; If a portion or portions of any meet- (7) Is likely to disclose investigatory ing of the National Science Board are law-enforcement records, or informa- closed to the public under § 614.2: tion which, if written, would be con- (a) The General Counsel of the Na- tained in such records, but only to the tional Science Foundation shall pub- extent provided in 5 U.S.C. 552b(c)(7); licly certify that, in his opinion, that (8) Is likely to disclose information portion or portions may properly be contained in or related to examination, closed to the public. The certificate operating, or condition reports pre- shall state the exemptions under 5 pared by, on behalf of, or for the use of U.S.C. 552b(c) that make the closings an agency responsible for the regula- proper. tion or supervision of financial institu- (b) The presiding officer of the meet- tions; ing (usually the Chairman of the (9) Is likely to disclose information, Board) shall furnish a statement set- the premature disclosure of which ting forth the time and place of the would: meeting and the persons present. (i) In the case of information re- (c) The Board shall make a complete ceived from an agency which regulates transcript or electronic recording ade- currencies, securities, commodities, or quate to record fully the proceedings of financial institutions, be likely to (A) each portion of the meeting that is lead to significant financial specula- closed to the public. tion in currencies, securities, or com- (d) The National Science Board Office modities, or (B) significantly endanger shall maintain the General Counsel’s the stability of any financial institu- certificate, the presiding officer’s tion; or statement, and the transcript or re- (ii) Be likely to significantly frus- cording of the meeting for at least trate implementation of a proposed three years after the meeting and at Foundation action, unless the Founda- least one year after the Board com- tion has already disclosed to the public pletes consideration of any proposal, the content or nature of its proposed report, resolution, or similar matter action or is required by law to make discussed in any closed portion of the such disclosure on its own initiative meeting. before taking final action; or [42 FR 14719, Mar. 16, 1977, as amended at 75 (10) Is likely to specifically concern FR 40755, July 14, 2010] the Foundation’s participation in a civil action or proceeding, an action in § 614.4 Opening of transcript or re- a foreign court or international tri- cording. bunal, or an arbitration. (a) Except as otherwise provided in (b) Anyone who believes his interests this section, the transcript or elec- may be directly affected by a portion of tronic recording of every portion of a meeting may request that the Board every meeting closed to the public will

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promptly be made available on request announces or after the meeting only if to any member of the public in an eas- (1) the Board by record vote determines ily accessible place. that agency business requires the (b) Informal requests to inspect or meeting to be called on such short or copy the transcript or electronic re- after-the-fact notice and (2) an an- cording of a closed session may be nouncement is made at the earliest made to the staff of the National practicable time. Science Board and will be handled in- (d) All or any portion of the an- formally and expeditiously. Written re- nouncement of any meeting may be quests to inspect or copy such a tran- omitted if the Board by record vote de- script or recording that cite the Free- termines that the announcement would dom of Information Act or the Sun- disclose information which should be shine Act will be treated as formal re- withheld under the same standards as quests made under the Freedom of In- apply for closing meetings under § 614.2. formation Act. They will be handled under the Foundation’s Freedom of In- [42 FR 14719, Mar. 16, 1977, as amended at 75 formation procedures described in 45 FR 40755, July 14, 2010] CFR part 612. The exemptions of these § 614.6 Meeting changes. Sunshine Act regulations, 45 CFR 614.2, will govern, however, in determining (a) The time or place of a meeting of what portions of the transcript or re- the National Science Board that has cording may be withheld. been publicly announced as provided in (c) A request to inspect or copy a § 614.5 may subsequently be changed, transcript or electronic recording but any such change will be publicly should specify the date of the meeting announced at the earliest practicable and the agenda item or items to which time. the request pertains. It should contain (b) The subject matter of any portion a promise to pay the costs of any dupli- of any meeting of the Board that has cation requested. been publicly announced as provided in (d) No search or transcription fees § 614.5 or the determination whether will be charged. Duplication fees may any portion of any meeting so publicly be charged as provided in 45 CFR 612.6. announced will be open or closed may subsequently be changed, but only [42 FR 55619, Oct. 18, 1977] when: § 614.5 Public announcement. (1) The Board determines by record vote that agency business so requires (a) Except as provided in paragraphs and that no earlier announcement of (c) and (d) of this section, the National the change was possible; and Science Board will make a public announcement of each Board meeting at (2) The Board publicly announces the least one week before the meeting change and the vote of each Member on takes place. The announcement will the change at the earliest practicable cover: time. (1) The time, place, and subject mat- § 614.7 Record vote. ter of the meeting; (2) What portions of the meeting, if (a) For purposes of this part a vote of any, are to be closed to the public; and the National Science Board is a (3) The name and telephone number ‘‘record vote’’ if: of the official designated to respond to (1) It carries by a majority of all requests for information on the meet- those holding office as Board Members ing. at the time of the vote; (b) Each such announcement will be (2) No proxies are counted toward the promptly posted on the National necessary majority; and Science Foundation’s Web site at http:// (3) The individual vote of each Mem- www.nsf.gov/nsb/notices/. Immediately ber present and voting is recorded. following the issuance of such an an- (b) Within one day of any such record nouncement, it will be submitted for vote or any attempted record vote that publication in the FEDERAL REGISTER. fails to achieve the necessary majority (c) The announcement may be made under paragraph (a)(1) of this section, less than a week before the meeting it the Board Office will make publicly

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available a written record showing the (c) This part is not intended to and vote of each Member on the question. does not waive the sovereign immunity (c) Within one day of any record vote of the United States. under which any portion or portions of (d) This part is intended only to pro- a Board meeting are to be closed to the vide guidance for the internal oper- public, the Board Office will make ations of NSF, and is not intended to, available a full written explanation of and does not, and may not be relied the Board’s action and a list of all per- upon to create any right or benefit, sons expected to attend the meeting, substantive or procedural, enforceable showing their affiliations. at law by a party against the United States. § 614.8 Application to Board Executive Committee. § 615.2 Applicability. All the provisions of this part appli- This part applies to demands and re- cable to the National Science Board quests for factual or expert testimony shall apply equally to the Executive or for official records or information in Committee of the Board whenever the legal proceedings, whether or not the Executive Committee is meeting pur- United States is a party, except that it suant to its authority to act on behalf does not apply to: of the Board. (a) Demands upon or requests for an NSF employee to testify as to facts or PART 615—TESTIMONY AND events that are in no way related to his PRODUCTION OF RECORDS or her official duties or to the functions of NSF, Sec. (b) Demands upon or requests for a 615.1 Purpose. former NSF employee to testify as to 615.2 Applicability. matters in which the former employee 615.3 Definitions. was not directly or materially involved 615.4 Legal proceedings before NSF or in while at NSF, which the United States is a party. 615.5 Legal proceedings between private (c) Demands upon or requests for an litigants: Testimony and production of NSF reviewer to testify as to matters documents. not directly related to that individual’s 615.6 Legal proceedings between private employment by or service to NSF, and litigants: Procedure when demand is (d) Congressional demands and re- made. quests for testimony or records. 615.7 Legal proceedings between private litigants: Office of Inspector General em- § 615.3 Definitions. ployees. (a) Demand—A subpoena, order, or AUTHORITY: 42 U.S.C. 1870(a). other demand of a court or other com- SOURCE: 59 FR 44056, Aug. 26, 1994, unless petent authority for the production of otherwise noted. records or for the appearance and testimony of an NSF employee, issued in a § 615.1 Purpose. legal proceeding between private liti- (a) This part sets forth policies and gants. procedures to be followed when, in con- (b) Foundation or NSF means the Na- nection with a legal proceeding, an tional Science Foundation. NSF employee is issued a demand to (c) General Counsel means the General provide testimony or produce official Counsel of the Foundation, or any per- records and information. son to whom the General Counsel has (b) The provisions of this part are in- delegated authority under this part. tended to promote economy and effi- (d) Legal proceeding means any pro- ciency in NSF’s programs and oper- ceeding before a court of law, adminis- ations; minimize the possibility of in- trative board or commission, hearing volving NSF in controversial issues not officer, or other body conducting a related to its functions; maintain the legal or administrative proceeding. impartiality of NSF among private (e) Official records and information litigants; and protect sensitive, con- means all documents and material fidential information and the delibera- which are records of the Foundation tive process. under the Freedom of Information Act,

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5 U.S.C. 552; all other records contained records and information in response to in NSF’s files; and all other informa- a demand or request. In making this tion or material acquired by an NSF decision, the General Counsel shall employee in the performance of his or consider whether: her official duties or because of his or (1) The purposes of this part are met; her official status. (2) Allowing such testimony or pro- (f) NSF employee or employee means duction of records would be necessary any present or former officer or em- to prevent a miscarriage of justice; ployee of NSF; any other individual (3) NSF has an interest in the deci- hired through contractual agreement sion that may be rendered in the legal by or on behalf of NSF, or who has per- proceeding; and formed or is performing services under (4) Allowing such testimony or pro- such an agreement for NSF; and any duction of records would be in the best individual who served or is serving on interest of NSF or the United States. any advisory committee or in any advi- (c) If authorized to testify pursuant sory capacity, whether formal or infor- to this part, an employee may testify mal. as to facts within his or her personal (g) Request means any informal re- knowledge, but, unless specifically au- quest, by whatever method, for the pro- thorized to do so by the General Coun- duction of official records and informa- sel, shall not: tion or for testimony which has not (1) Disclose confidential or privileged been ordered by a court or other com- information; petent authority. (h) Testimony means any written or (2) Testify as to facts when the Gen- oral statement by a witness, including eral Counsel determines such testi- depositions, answers to interrogatories, mony would not be in the best interest affidavits, declarations, and state- of the Foundation or the United ments at a hearing or trial. States; or (3) Testify as an expert or opinion § 615.4 Legal proceedings before NSF witness with regard to any matter aris- or in which the United States is a ing out of the employee’s official du- party. ties or the functions of the Foundation. In any legal proceeding before NSF or to which the United States is a § 615.6 Legal proceedings between private litigants: Procedure when de- party, the General Counsel shall ar- mand is made. range for a current employee to testify as a witness for the United States (a) Whenever an employee is served whenever the attorney representing with a demand to testify in his or her the United States requests it. The em- official capacity, or to produce official ployee may testify for the United records and information, the employee States both as to facts within the em- shall immediately notify the General ployee’s personal knowledge and as an Counsel. expert or opinion witness. For any (b) The General Counsel shall review party other than the United States, the the demand and, in accordance with employee may testify only as to facts the provisions of § 615.5, determine within his or her personal knowledge. whether, or on what conditions, to authorize the employee to testify and/or § 615.5 Legal proceedings between pri- produce official records and informa- vate litigants: Testimony and pro- tion. duction of documents. (c) If a response to a demand is re- (a) No employee may produce official quired before the General Counsel has records and information or provide any made the determination referred to in testimony in response to a demand or § 615.6(b), the General Counsel shall request unless authorized to do so by provide the court or other competent the General Counsel in accordance with authority with a copy of this part, in- this part. form the court or other competent au- (b) The General Counsel, in his or her thority that the demand is being re- discretion, may grant an employee per- viewed, and seek a stay of the demand mission to testify or produce official pending a final determination. If the

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court fails to stay the demand, the em- APPENDIX I TO PART 617—LIST OF AGE DIS- ployee must appear at the stated time TINCTIONS PROVIDED IN FEDERAL STAT- and place, produce a copy of this part, UTES OR REGULATIONS AFFECTING FED- and respectfully decline to comply ERAL FINANCIAL ASSISTANCE ADMINIS- TERED BY NSF with the demand. ‘‘United States ex rel Touhy v. Ragen,’’ 340 US 462 (1951). AUTHORITY: Age Discrimination Act of 1975, (d) If a court or other competent au- as amended, 42 U.S.C. 6101, et seq.; 45 CFR thority orders that a demand be com- part 90. plied with notwithstanding a final deci- SOURCE: 49 FR 49628, Dec. 21, 1984, unless sion by the General Counsel to the con- otherwise noted. trary, or at any other stage in the process, the General Counsel may take § 617.1 Purpose. steps to arrange for legal representa- This part prescribes NSF’s policies tion for the employee, and shall advise and procedures under the Age Discrimi- the employee on how to respond to the nation Act of 1975 and the Department demand. of Health and Human Services government-wide age discrimination regula- § 615.7 Legal proceedings between pri- tions at 45 CFR part 90. The Act and vate litigants: Office of Inspector General employees. part 90 prohibit discrimination on the basis of age in programs or activities Notwithstanding the requirements receiving Federal financial assistance. set forth in §§ 615.1 through 615.6, when The Act and part 90 permit federally an employee of the Office of Inspector assisted programs or activities and re- General is issued a demand or receives cipients of Federal funds to continue to a request to provide testimony or use age distinctions and factors other produce official records and informa- than age which meet the requirements tion, the Inspector General or his or of the Act and part 90. her designee shall be responsible for performing the functions assigned to [49 FR 49628, Dec. 21, 1984, as amended at 68 the General Counsel with respect to FR 51383, Aug. 26, 2003] such demand or request pursuant to the provisions of this part. § 617.2 Definitions. The following terms used in this part [73 FR 21549, Apr. 22, 2008] are defined in part 90: PART 617—NONDISCRIMINATION Act ON THE BASIS OF AGE IN PRO- Action GRAMS OR ACTIVITIES RECEIV- Age Age distinction ING FEDERAL FINANCIAL ASSIST- Age-related term ANCE FROM NSF Agency Federal financial assistance Sec. Program or activity 617.1 Purpose. Recipient (including subrecipients) 617.2 Definitions. United States 617.3 Standards. 617.4 General duties of recipients. [49 FR 49628, Dec. 21, 1984, as amended at 68 617.5 Self-evaluation. FR 51383, Aug. 26, 2003] 617.6 Information requirements. 617.7 Compliance reviews. § 617.3 Standards. 617.8 Pre-award reviews. 617.9 Complaints. Standards for determining whether 617.10 Mediation. an age distinction or age-related term 617.11 Investigation. is prohibited are set out in part 90 of 617.12 Compliance procedure. this title 45. See also appendix I to this 617.13 Hearings, decisions, post-termination part. proceedings. 617.14 Remedial action by recipients. § 617.4 General duties of recipients. 617.15 Exhaustion of administrative remedies. Each recipient of Federal financial 617.16 Prohibition against intimidation or assistance from NSF shall comply with retaliation. the Act, part 90, and this part. Each

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NSF award of Federal financial assist- views even in the absence of a com- ance shall contain the following provi- plaint against a recipient. The review sion: may be as comprehensive as necessary to determine whether a violation of the COMPLIANCE WITH AGE DISCRIMINATION ACT Act has occurred. The recipient agrees to comply with the (b) If a compliance review indicates a Age Discrimination Act of 1975 as imple- violation of the Act, NSF will attempt mented by the Department of Health and to achieve voluntary compliance with Human Services regulations at 45 CFR part the Act. If voluntary compliance can- 90 and the regulations of the Foundation at not be achieved, NSF may arrange for 45 CFR part 617. In the event the recipient passes on NSF financial assistance to sub-re- enforcement as described in § 617.12. cipients, this provision shall apply to the subrecipients, and the instrument under § 617.8 Pre-award reviews. which the Federal financial assistance is NSF reserves the right to conduct passed to the subrecipient shall contain a pre-award reviews of applicants for provision identical to this provision. Federal financial assistance from NSF in cases where the NSF has substantial § 617.5 Self-evaluation. reason to believe that a potential re- (a) Each recipient (including sub- cipient who is not then a recipient of recipients) employing the equivalent of other NSF financial assistance under fifteen or more full-time employees the same program or activity may en- shall complete a written self-evalua- gage in practices under that program tion of its compliance under this part or activity that would violate the Act. within 18 months of the effective date However, the results of any such re- of these regulations, unless a similar view shall not constitute a basis for evaluation has been completed for an- NSF refusal to grant financial assist- other agency. ance to the applicant under that pro- (b) In its self-evaluation, each recipi- gram or activity unless the procedural ent shall identify all age distinctions it requirements of the Act (42 U.S.C. 6104) uses and justify each age distinction it and §§ 617.12 and 617.13 of this part have imposes on the program or activity re- been followed. ceiving Federal financial assistance [49 FR 49628, Dec. 21, 1984, as amended at 68 from NSF. FR 51383, Aug. 26, 2003] (c) Each recipient shall take corrective action whenever a self-evaluation § 617.9 Complaints. indicates a violation of the Act. (a) Any person, individually or as a (d) Each recipient shall make the member of a class or on behalf of oth- self-evaluation available on request to ers, may file a complaint with NSF, al- NSF and the public for three years leging discrimination prohibited by the after its completion. Act. A complainant shall file a complaint within 180 days from the date § 617.6 Information requirements. the complainant first had knowledge of Each recipient shall: the alleged act of discrimination. How- (a) Make available upon request to ever, for good cause shown, NSF may NSF information necessary to deter- extend this time limit. mine whether the recipient is com- (b) NSF will accept as a sufficient plying with the Act. complaint, any written statement (b) Permit reasonable access by NSF which identifies the parties involved or its designee to the books, records, and the date the complainant first had accounts, and other recipient facilities knowledge of the alleged violation, de- and sources of information to the ex- scribes generally the action or practice tent necessary to determine whether a complained of, and is signed by the recipient is complying with the Act. complainant. If an insufficient complaint is amended within 10 working § 617.7 Compliance reviews. days after notice by NSF to the com- (a) NSF may conduct compliance re- plainant of the deficiency, NSF will views of recipients that will permit it consider the amended complaint as to investigate and correct violations of filed on the date the original insuffi- the Act. NSF may conduct these re- cient complaint was filed for purposes

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of determining if it was timely filed. (e) NSF will use the mediation proc- However, all other time requirements ess for a maximum of 60 days after re- established by the Act and this part ceiving a complaint. Mediation ends if: shall run from the date the amended (1) 60 days elapse from the time NSF complaint was filed. receives a sufficient complaint: or (c) On receipt of any complaint NSF (2) Before the end of the 60 day pe- shall promptly send written acknowl- riod, an agreement is reached; or edgement to the complainant, and a (3) Before the end of the 60 day pe- copy of the complaint to the recipient. riod, the mediator determines that an In addition, NSF shall send either cop- agreement cannot be reached. ies of this part or other pertinent infor- (f) The mediator shall return unre- mation describing the rights and obli- solved complaints to NSF. gations of the parties. (d) NSF will return to the complain- § 617.11 Investigation. ant any complaint outside the coverage (a) Informal investigation. (1) NSF will of this part, and will state why it is investigate complaints that are unre- outside the coverage of this part. solved after mediation or are reopened because of violation of a mediation § 617.10 Mediation. agreement. (a) NSF will refer to the Federal Me- (2) As part of the initial investiga- diation and Conciliation Service all tion, NSF will use informal fact finding complaints that fall within the juris- methods, including joint or separate diction of this part and contain all in- discussions with the complainant and formation necessary for further proc- recipient, to establish the facts, and, if essing. possible, will settle the complaint on (b) Both the complainant and the re- terms that are agreeable to the parties. cipient shall participate in the medi- NSF may seek the assistance of any ination process to the extent necessary volved State agency. to reach an agreement or for a medi- (3) NSF will put any agreement in ator to make an informed judgement writing and have it signed by the par- that an agreement is not possible. NSF ties and an authorized official of NSF. will take no further administrative ac- (4) A settlement shall not affect tion on any complaint if the complain- other enforcement efforts of NSF, in- ant refuses to participate in the medi- cluding compliance reviews, or indi- ation process. vidual complaints that involve the re- (c) If the complainant and the recipi- cipient. ent reach an agreement, the mediator shall prepare a written statement of (5) A settlement is not a finding of the agreement and have the complain- discrimination against the recipient. ant and recipient sign it. The mediator (b) Formal investigation. If NSF can- shall send a copy of the agreement to not resolve the complaint through in- NSF. NSF shall take no further action formal investigation, it will begin to on the complaint unless the complain- develop formal findings through fur- ant or the recipient fails to comply ther investigation of the complaint. If with the agreement, in which case the the investigation indicates a violation other party may request that the com- of the Act, NSF will try to obtain vol- plaint be reopened. untary compliance. If NSF cannot ob- (d) The mediator shall protect the tain voluntary compliance, it will confidentiality of all information ob- begin enforcement as described in tained in the course of the mediation § 617.12. If the investigation does not in- process. No mediator shall testify in dicate a violation of the Act, NSF will any adjudicative proceeding, produce issue a written determination in favor any document, or otherwise disclose of the recipient. any information obtained in the course [49 FR 49628, Dec. 21, 1984, as amended at 68 of the mediation process without prior FR 51383, Aug. 26, 2003] approval of the head of the Federal Me- diation and Conciliation Service.

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§ 617.12 Compliance procedure. (f) Alternate Funds Disbursal Proce- dures. (1) When NSF withholds funds (a) NSF may enforce this part by ei- from a recipient under these regula- ther termination of a recipient’s finan- tions, the Secretary may disburse the cial asistance from NSF for the pro- withheld funds directly to an alternate gram or activity involved where the re- recipient: Any public or non-profit pri- cipient has violated the Act or this vate organization or agency, or State part or refusal to grant further finan- or political subdivision of the State. cial assistance under the program or (2) The Director will require any al- activity involved where the recipient ternate recipient to demonstrate: has violated the Act or this part. The (i) The ability to comply with these determination of the recipient’s viola- regulations; and tion may be made only after a recipient has had an opportunity for a hear- (ii) The ability to achieve the goals ing on the record before an administra- of the Federal statute authorizing the tive law judge. Therefore, cases settled Federal financial assistance. in the mediation process or before a [49 FR 49628, Dec. 21, 1984, as amended at 68 hearing will not involve termination of FR 51383, Aug. 26, 2003] a recipient’s Federal financial assistance from NSF. § 617.13 Hearings, decisions, post-ter- (b) NSF may also enforce this part by mination proceedings. any other means authorized by law, in- Procedures prescribed in 45 CFR 611.9 cluding but not limited to: and 611.10 for NSF enforcement of Title (1) Referral to the Department of VI of the Civil Rights Act of 1964 shall Justice for proceedings to enforce any apply also for NSF enforcement of this rights of the United States or obliga- part. At the conclusion of any action tions by this part. taken under § 617.12, NSF, shall remind (2) Use of any requirement of or re- both parties of the right to judicial referral to any Federal, State, or local view established by 42 U.S.C. 6105. government agency that will have the effect of correcting a violation of the § 617.14 Remedial action by recipients. Act or this part. Where the Director finds that a re- (c) NSF will limit any termination or cipient has discriminated on the basis refusal to grant further financial as- of age, the recipient shall take any re- sistance to the particular recipient and medial action the Director may require the particular program or activity to overcome the effects of the discrimi- found to be in violation of the Act. nation. If another recipient exercises NSF will not base any part of a termi- control over the recipient that has dis- nation or refusal on a finding with re- criminated, the Director may require spect to any program or activity of the both recipients to take remedial ac- recipient which does not receive Fed- tion. eral financial assistance for NSF. (d) NSF will not begin any hearing § 617.15 Exhaustion of administrative under paragraph (a) until the Director remedies. has advised the recipient of its failure (a) A complainant may file a civil ac- to comply with this part and has deter- tion after exhausting administrative mined that voluntary compliance can- remedies under the Act. Administra- not be obtained. tive remedies are exhausted if: (e) NSF will not terminate or refuse (1) 180 days have elapsed since the to grant financial assistance until thir- complainant filed a sufficient com- ty days have elapsed after the Director plaint and NSF has made no finding has sent a written report of the cir- with regard to the complaint; or cumstances and grounds of the action (2) NSF issues any finding in favor of to the committees of the Congress hav- the recipient. ing legislative jurisdiction over the (b) If NSF fails to make a finding program or activity involved. The Di- within 180 days or issues a finding in rector will file a report whenever any favor of the recipient, NSF will: action is taken under paragraph (f) of (1) Promptly advise the complainant this section. of this fact; and

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(2) Advise the complainant of his or PART 618—NONDISCRIMINATION her right to bring a civil action for in- ON THE BASIS OF SEX IN EDU- junctive relief under 42 U.S.C. 6104; and CATION PROGRAMS OR ACTIVI- (3) Inform the complainant that TIES RECEIVING FEDERAL FINAN- under 42 U.S.C. 6104: CIAL ASSISTANCE (i) The complainant may bring a civil action only in a United States District Subpart A—Introduction court for the district in which the recipient is located or transacts business; Sec. (ii) A complainant prevailing in a 618.100 Purpose and effective date. civil action has the right to be awarded 618.105 Definitions. the costs of the action, including rea- 618.110 Remedial and affirmative action and sonable attorney’s fees, but that the self-evaluation. complainant must demand these costs 618.115 Assurance required. in the complaint; 618.120 Transfers of property. 618.125 Effect of other requirements. (iii) Before commencing the action 618.130 Effect of employment opportunities. the complainant shall give 30 days no- 618.135 Designation of responsible employee tice by registered mail to the Director, and adoption of grievance procedures. the Attorney General of the United 618.140 Dissemination of policy. States, and the recipient; (iv) The notice must state the alleged Subpart B—Coverage violation of the Act; the relief re- 618.200 Application. quested; the court in which the com- 618.205 Educational institutions and other plainant is bringing the action; and entities controlled by religious organiza- whether or not attorney’s fees are de- tions. manded in the event the complainant 618.210 Military and merchant marine edu- prevails; and cational institutions. (v) The complainant may not bring 618.215 Membership practices of certain or- an action if the same alleged violation ganizations. of the Act by the same recipient is the 618.220 Admissions. 618.225 Educational institutions eligible to subject of a pending action in any submit transition plans. court of the United States. 618.230 Transition plans. 618.235 Statutory amendments. § 617.16 Prohibition against intimidation or retaliation. Subpart C—Discrimination on the Basis of A recipient may not engage in acts of Sex in Admission and Recruitment Pro- intimidation or retaliation against a hibited person who: 618.300 Admission. (a) Attempts to assert a right pro- 618.305 Preference in admission. tected by the Act, or 618.310 Recruitment. (b) Cooperates in any mediation, investigation, hearing or other part of Subpart D—Discrimination on the Basis of NSF’s investigation, conciliation, and Sex in Education Programs or Activities enforcement process. Prohibited

APPENDIX I TO PART 617—LIST OF AGE 618.400 Education programs or activities. DISTINCTIONS PROVIDED IN FEDERAL 618.405 Housing. STATUTES OR REGULATIONS AFFECT- 618.410 Comparable facilities. ING FEDERAL FINANCIAL ASSISTANCE 618.415 Access to course offerings. 618.420 Access to schools operated by LEAs. ADMINISTERED BY NSF 618.425 Counseling and use of appraisal and I. Section 6 of Pub. L. 94–86, 42 U.S.C. 1881a: counseling materials. This statute authorizes the Foundation to 618.430 Financial assistance. establish the Alan T. Waterman Award to 618.435 Employment assistance to students. recognize and encourage the work of 618.440 Health and insurance benefits and ‘‘younger’’ scientists. Under NSF procedures services. awards have been limited to persons 35 years 618.445 Marital or parental status. of age or under. 618.450 Athletics.

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618.455 Textbooks and curricular material. transfer, exchange, or any other enrollment, membership, or matriculation in Subpart E—Discrimination on the Basis of or at an education program or activity Sex in Employment in Education Pro- operated by a recipient. grams or Activities Prohibited Applicant means one who submits an 618.500 Employment. application, request, or plan required 618.505 Employment criteria. to be approved by an official of the 618.510 Recruitment. Federal agency that awards Federal fi- 618.515 Compensation. nancial assistance, or by a recipient, as 618.520 Job classification and structure. a condition to becoming a recipient. 618.525 Fringe benefits. Designated agency official means Gen- 618.530 Marital or parental status. eral Counsel and head of the policy of- 618.535 Effect of state or local law or other requirements. fice, Division of Contracts, Policy, and 618.540 Advertising. Oversight. 618.545 Pre-employment inquiries. Educational institution means a local 618.550 Sex as a bona fide occupational qual- educational agency (LEA) as defined by ification. 20 U.S.C. 8801(18), a preschool, a private elementary or secondary school, or an Subpart F—Procedures applicant or recipient that is an insti- 618.600 Notice of covered programs. tution of graduate higher education, an 618.605 Enforcement procedures. institution of undergraduate higher education, an institution of profes- AUTHORITY: 20 U.S.C. 1681, 1682, 1683, 1685, 1686, 1687, 1688. sional education, or an institution of vocational education, as defined in this SOURCE: 65 FR 52865, 52893, Aug. 30, 2000, un- section. less otherwise noted. Federal financial assistance means any of the following, when authorized or Subpart A—Introduction extended under a law administered by the Federal agency that awards such § 618.100 Purpose and effective date. assistance: The purpose of these Title IX regula- (1) A grant or loan of Federal finan- tions is to effectuate Title IX of the cial assistance, including funds made Education Amendments of 1972, as available for: amended (except sections 904 and 906 of (i) The acquisition, construction, ren- those Amendments) (20 U.S.C. 1681, ovation, restoration, or repair of a 1682, 1683, 1685, 1686, 1687, 1688), which is building or facility or any portion designed to eliminate (with certain ex- thereof; and ceptions) discrimination on the basis of (ii) Scholarships, loans, grants, sex in any education program or activ- wages, or other funds extended to any ity receiving Federal financial assist- entity for payment to or on behalf of ance, whether or not such program or students admitted to that entity, or activity is offered or sponsored by an extended directly to such students for educational institution as defined in payment to that entity. these Title IX regulations. The effec- (2) A grant of Federal real or per- tive date of these Title IX regulations sonal property or any interest therein, shall be September 29, 2000. including surplus property, and the proceeds of the sale or transfer of such § 618.105 Definitions. property, if the Federal share of the As used in these Title IX regulations, fair market value of the property is the term: not, upon such sale or transfer, prop- Administratively separate unit means a erly accounted for to the Federal Gov- school, department, or college of an ernment. educational institution (other than a (3) Provision of the services of Fed- local educational agency) admission to eral personnel. which is independent of admission to (4) Sale or lease of Federal property any other component of such institu- or any interest therein at nominal con- tion. sideration, or at consideration reduced Admission means selection for part- for the purpose of assisting the recipi- time, full-time, special, associate, ent or in recognition of public interest

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to be served thereby, or permission to pation or trade, or to pursue study in a use Federal property or any interest technical field, whether or not the therein without consideration. school or institution offers certificates, (5) Any other contract, agreement, or diplomas, or degrees and whether or arrangement that has as one of its pur- not it offers full-time study. poses the provision of assistance to any Recipient means any State or polit- education program or activity, except ical subdivision thereof, or any instru- a contract of insurance or guaranty. mentality of a State or political sub- Institution of graduate higher edu- division thereof, any public or private cation means an institution that: agency, institution, or organization, or (1) Offers academic study beyond the other entity, or any person, to whom bachelor of arts or bachelor of science Federal financial assistance is ex- degree, whether or not leading to a cer- tended directly or through another re- tificate of any higher degree in the lib- cipient and that operates an education eral arts and sciences; program or activity that receives such (2) Awards any degree in a profes- assistance, including any subunit, suc- sional field beyond the first profes- cessor, assignee, or transferee thereof. sional degree (regardless of whether Student means a person who has the first professional degree in such gained admission. field is awarded by an institution of Title IX means Title IX of the Edu- undergraduate higher education or pro- cation Amendments of 1972, Public Law fessional education); or 92–318, 86 Stat. 235, 373 (codified as (3) Awards no degree and offers no amended at 20 U.S.C. 1681–1688) (except further academic study, but operates sections 904 and 906 thereof), as amend- ordinarily for the purpose of facili- ed by section 3 of Public Law 93–568, 88 tating research by persons who have Stat. 1855, by section 412 of the Edu- received the highest graduate degree in cation Amendments of 1976, Public Law any field of study. 94–482, 90 Stat. 2234, and by Section 3 of Institution of professional education Public Law 100–259, 102 Stat. 28, 28–29 means an institution (except any insti- (20 U.S.C. 1681, 1682, 1683, 1685, 1686, 1687, tution of undergraduate higher edu- 1688). cation) that offers a program of aca- Title IX regulations means the provi- demic study that leads to a first profes- sions set forth at §§ 618.100 through sional degree in a field for which there 618.605. is a national specialized accrediting Transition plan means a plan subject agency recognized by the Secretary of to the approval of the Secretary of Education. Education pursuant to section 901(a)(2) Institution of undergraduate higher of the Education Amendments of 1972, education means: 20 U.S.C. 1681(a)(2), under which an edu- (1) An institution offering at least cational institution operates in mak- two but less than four years of college- ing the transition from being an edu- level study beyond the high school cational institution that admits only level, leading to a diploma or an asso- students of one sex to being one that ciate degree, or wholly or principally admits students of both sexes without creditable toward a baccalaureate de- discrimination. gree; or (2) An institution offering academic § 618.110 Remedial and affirmative ac- study leading to a baccalaureate de- tion and self-evaluation. gree; or (a) Remedial action. If the designated (3) An agency or body that certifies agency official finds that a recipient credentials or offers degrees, but that has discriminated against persons on may or may not offer academic study. the basis of sex in an education pro- Institution of vocational education gram or activity, such recipient shall means a school or institution (except take such remedial action as the des- an institution of professional or grad- ignated agency official deems nec- uate or undergraduate higher edu- essary to overcome the effects of such cation) that has as its primary purpose discrimination. preparation of students to pursue a (b) Affirmative action. In the absence technical, skilled, or semiskilled occu- of a finding of discrimination on the

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basis of sex in an education program or specifically identified assurance from activity, a recipient may take affirma- the applicant or recipient, satisfactory tive action consistent with law to over- to the designated agency official, that come the effects of conditions that re- each education program or activity op- sulted in limited participation therein erated by the applicant or recipient by persons of a particular sex. Nothing and to which these Title IX regulations in these Title IX regulations shall be apply will be operated in compliance interpreted to alter any affirmative ac- with these Title IX regulations. An as- tion obligations that a recipient may surance of compliance with these Title have under Executive Order 11246, 3 IX regulations shall not be satisfactory CFR, 1964–1965 Comp., p. 339; as amend- to the designated agency official if the ed by Executive Order 11375, 3 CFR, applicant or recipient to whom such as- 1966–1970 Comp., p. 684; as amended by surance applies fails to commit itself Executive Order 11478, 3 CFR, 1966–1970 to take whatever remedial action is Comp., p. 803; as amended by Executive necessary in accordance with Order 12086, 3 CFR, 1978 Comp., p. 230; § 618.110(a) to eliminate existing dis- as amended by Executive Order 12107, 3 crimination on the basis of sex or to CFR, 1978 Comp., p. 264. eliminate the effects of past discrimi- (c) Self-evaluation. Each recipient nation whether occurring prior to or education institution shall, within one subsequent to the submission to the year of September 29, 2000: designated agency official of such as- (1) Evaluate, in terms of the require- surance. ments of these Title IX regulations, its (b) Duration of obligation. (1) In the current policies and practices and the case of Federal financial assistance ex- effects thereof concerning admission of tended to provide real property or students, treatment of students, and structures thereon, such assurance employment of both academic and non- shall obligate the recipient or, in the academic personnel working in connec- case of a subsequent transfer, the tion with the recipient’s education pro- transferee, for the period during which gram or activity; the real property or structures are used (2) Modify any of these policies and to provide an education program or ac- practices that do not or may not meet tivity. the requirements of these Title IX reg- (2) In the case of Federal financial as- ulations; and sistance extended to provide personal (3) Take appropriate remedial steps property, such assurance shall obligate to eliminate the effects of any dis- the recipient for the period during crimination that resulted or may have which it retains ownership or posses- resulted from adherence to these poli- sion of the property. cies and practices. (3) In all other cases such assurance (d) Availability of self-evaluation and shall obligate the recipient for the pe- related materials. Recipients shall main- riod during which Federal financial as- tain on file for at least three years fol- sistance is extended. lowing completion of the evaluation re- (c) Form. (1) The assurances required quired under paragraph (c) of this sec- by paragraph (a) of this section, which tion, and shall provide to the des- may be included as part of a document ignated agency official upon request, a that addresses other assurances or obli- description of any modifications made gations, shall include that the appli- pursuant to paragraph (c)(2) of this sec- cant or recipient will comply with all tion and of any remedial steps taken applicable Federal statutes relating to pursuant to paragraph (c)(3) of this sec- nondiscrimination. These include but tion. are not limited to: Title IX of the Edu- cation Amendments of 1972, as amend- § 618.115 Assurance required. ed (20 U.S.C. 1681–1683, 1685–1688). (a) General. Either at the application (2) The designated agency official stage or the award stage, Federal agen- will specify the extent to which such cies must ensure that applications for assurances will be required of the ap- Federal financial assistance or awards plicant’s or recipient’s subgrantees, of Federal financial assistance contain, contractors, subcontractors, trans- be accompanied by, or be covered by a ferees, or successors in interest.

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§ 618.120 Transfers of property. ent and that receives Federal financial assistance. If a recipient sells or otherwise transfers property financed in whole or in § 618.130 Effect of employment oppor- part with Federal financial assistance tunities. to a transferee that operates any education program or activity, and the The obligation to comply with these Federal share of the fair market value Title IX regulations is not obviated or of the property is not upon such sale or alleviated because employment oppor- transfer properly accounted for to the tunities in any occupation or profes- Federal Government, both the trans- sion are or may be more limited for feror and the transferee shall be members of one sex than for members deemed to be recipients, subject to the of the other sex. provisions of §§ 618.205 through 618.235(a). § 618.135 Designation of responsible employee and adoption of grievance § 618.125 Effect of other requirements. procedures. (a) Effect of other Federal provisions. (a) Designation of responsible employee. The obligations imposed by these Title Each recipient shall designate at least IX regulations are independent of, and one employee to coordinate its efforts do not alter, obligations not to dis- to comply with and carry out its re- criminate on the basis of sex imposed sponsibilities under these Title IX reg- by Executive Order 11246, 3 CFR, 1964– ulations, including any investigation of 1965 Comp., p. 339; as amended by Exec- any complaint communicated to such utive Order 11375, 3 CFR, 1966–1970 recipient alleging its noncompliance Comp., p. 684; as amended by Executive with these Title IX regulations or al- Order 11478, 3 CFR, 1966–1970 Comp., p. leging any actions that would be pro- 803; as amended by Executive Order hibited by these Title IX regulations. 12087, 3 CFR, 1978 Comp., p. 230; as The recipient shall notify all its stu- amended by Executive Order 12107, 3 dents and employees of the name, of- CFR, 1978 Comp., p. 264; sections 704 fice address, and telephone number of and 855 of the Public Health Service the employee or employees appointed Act (42 U.S.C. 295m, 298b-2); Title VII of pursuant to this paragraph. the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.); the Equal Pay Act of 1963 (b) Complaint procedure of recipient. A (29 U.S.C. 206); and any other Act of recipient shall adopt and publish griev- Congress or Federal regulation. ance procedures providing for prompt (b) Effect of State or local law or other and equitable resolution of student and requirements. The obligation to comply employee complaints alleging any ac- with these Title IX regulations is not tion that would be prohibited by these obviated or alleviated by any State or Title IX regulations. local law or other requirement that would render any applicant or student § 618.140 Dissemination of policy. ineligible, or limit the eligibility of (a) Notification of policy. (1) Each re- any applicant or student, on the basis cipient shall implement specific and of sex, to practice any occupation or continuing steps to notify applicants profession. for admission and employment, stu- (c) Effect of rules or regulations of pri- dents and parents of elementary and vate organizations. The obligation to secondary school students, employees, comply with these Title IX regulations sources of referral of applicants for ad- is not obviated or alleviated by any mission and employment, and all rule or regulation of any organization, unions or professional organizations club, athletic or other league, or asso- holding collective bargaining or profes- ciation that would render any appli- sional agreements with the recipient, cant or student ineligible to partici- that it does not discriminate on the pate or limit the eligibility or partici- basis of sex in the educational pro- pation of any applicant or student, on the basis of sex, in any education programs or activities that it operates, gram or activity operated by a recipi- and that it is required by Title IX and

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these Title IX regulations not to dis- mission and employment recruitment criminate in such a manner. Such noti- representatives of the policy of non- fication shall contain such informa- discrimination described in paragraph tion, and be made in such manner, as (a) of this section, and shall require the designated agency official finds such representatives to adhere to such necessary to apprise such persons of policy. the protections against discrimination assured them by Title IX and these Subpart B—Coverage Title IX regulations, but shall state at least that the requirement not to dis- § 618.200 Application. criminate in education programs or ac- Except as provided in §§ 618.205 tivities extends to employment there- through 618.235(a), these Title IX regu- in, and to admission thereto unless lations apply to every recipient and to §§ 618.300 through 618.310 do not apply to each education program or activity op- the recipient, and that inquiries con- erated by such recipient that receives cerning the application of Title IX and Federal financial assistance. these Title IX regulations to such recipient may be referred to the em- § 618.205 Educational institutions and ployee designated pursuant to § 618.135, other entities controlled by reli- or to the designated agency official. gious organizations. (2) Each recipient shall make the ini- (a) Exemption. These Title IX regula- tial notification required by paragraph tions do not apply to any operation of (a)(1) of this section within 90 days of an educational institution or other en- September 29, 2000 or of the date these tity that is controlled by a religious Title IX regulations first apply to such organization to the extent that appli- recipient, whichever comes later, cation of these Title IX regulations which notification shall include publi- would not be consistent with the reli- cation in: gious tenets of such organization. (i) Newspapers and magazines oper- (b) Exemption claims. An educational ated by such recipient or by student, institution or other entity that wishes alumnae, or alumni groups for or in to claim the exemption set forth in connection with such recipient; and paragraph (a) of this section shall do so (ii) Memoranda or other written com- by submitting in writing to the des- munications distributed to every stu- ignated agency official a statement by dent and employee of such recipient. the highest-ranking official of the in- (b) Publications. (1) Each recipient stitution, identifying the provisions of shall prominently include a statement these Title IX regulations that conflict of the policy described in paragraph (a) with a specific tenet of the religious or- of this section in each announcement, ganization. bulletin, catalog, or application form that it makes available to any person § 618.210 Military and merchant ma- of a type, described in paragraph (a) of rine educational institutions. this section, or which is otherwise used These Title IX regulations do not in connection with the recruitment of apply to an educational institution students or employees. whose primary purpose is the training (2) A recipient shall not use or dis- of individuals for a military service of tribute a publication of the type de- the United States or for the merchant scribed in paragraph (b)(1) of this sec- marine. tion that suggests, by text or illustration, that such recipient treats appli- § 618.215 Membership practices of cer- cants, students, or employees dif- tain organizations. ferently on the basis of sex except as (a) Social fraternities and sororities. such treatment is permitted by these These Title IX regulations do not apply Title IX regulations. to the membership practices of social (c) Distribution. Each recipient shall fraternities and sororities that are ex- distribute without discrimination on empt from taxation under section the basis of sex each publication de- 501(a) of the Internal Revenue Code of scribed in paragraph (b)(1) of this sec- 1954, 26 U.S.C. 501(a), the active mem- tion, and shall apprise each of its ad- bership of which consists primarily of

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students in attendance at institutions § 618.225 Educational institutions eli- of higher education. gible to submit transition plans. (b) YMCA, YWCA, Girl Scouts, Boy (a) Application. This section applies Scouts, and Camp Fire Girls. These Title to each educational institution to IX regulations do not apply to the which §§ 618.300 through 618.310 apply membership practices of the Young that: Men’s Christian Association (YMCA), (1) Admitted students of only one sex the Young Women’s Christian Associa- as regular students as of June 23, 1972; tion (YWCA), the Girl Scouts, the Boy or Scouts, and Camp Fire Girls. (2) Admitted students of only one sex (c) Voluntary youth service organiza- as regular students as of June 23, 1965, tions. These Title IX regulations do not but thereafter admitted, as regular stu- apply to the membership practices of a dents, students of the sex not admitted voluntary youth service organization prior to June 23, 1965. that is exempt from taxation under (b) Provision for transition plans. An section 501(a) of the Internal Revenue educational institution to which this Code of 1954, 26 U.S.C. 501(a), and the section applies shall not discriminate membership of which has been tradi- on the basis of sex in admission or re- tionally limited to members of one sex cruitment in violation of §§ 618.300 and principally to persons of less than through 618.310. nineteen years of age. § 618.230 Transition plans. § 618.220 Admissions. (a) Submission of plans. An institution to which § 618.225 applies and that is (a) Admissions to educational insti- composed of more than one administra- tutions prior to June 24, 1973, are not tively separate unit may submit either covered by these Title IX regulations. a single transition plan applicable to (b) Administratively separate units. For all such units, or a separate transition the purposes only of this section, plan applicable to each such unit. §§ 618.225 and 618.230, and §§ 618.300 (b) Content of plans. In order to be ap- through 618.310, each administratively proved by the Secretary of Education, separate unit shall be deemed to be an a transition plan shall: educational institution. (1) State the name, address, and Fed- (c) Application of §§ 618.300 through eral Interagency Committee on Edu- .310. Except as provided in paragraphs cation Code of the educational institu- (d) and (e) of this section, §§ 618.300 tion submitting such plan, the admin- through 618.310 apply to each recipient. istratively separate units to which the A recipient to which §§ 618.300 through plan is applicable, and the name, ad- 618.310 apply shall not discriminate on dress, and telephone number of the per- the basis of sex in admission or recruit- son to whom questions concerning the ment in violation of §§ 618.300 through plan may be addressed. The person who 618.310. submits the plan shall be the chief ad- (d) Educational institutions. Except as ministrator or president of the institu- provided in paragraph (e) of this section, or another individual legally au- tion as to recipients that are edu- thorized to bind the institution to all cational institutions, §§ 618.300 through actions set forth in the plan. 618.310 apply only to institutions of vo- (2) State whether the educational in- cational education, professional edu- stitution or administratively separate cation, graduate higher education, and unit admits students of both sexes as public institutions of undergraduate regular students and, if so, when it higher education. began to do so. (e) Public institutions of undergraduate (3) Identify and describe with respect higher education. §§ 618.300 through to the educational institution or ad- 618.310 do not apply to any public insti- ministratively separate unit any obsta- tution of undergraduate higher edu- cles to admitting students without dis- cation that traditionally and contin- crimination on the basis of sex. ually from its establishment has had a (4) Describe in detail the steps nec- policy of admitting students of only essary to eliminate as soon as prac- one sex. ticable each obstacle so identified and

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indicate the schedule for taking these but if such activities are provided for steps and the individual directly re- students of one sex, opportunities for sponsible for their implementation. reasonably comparable activities shall (5) Include estimates of the number be provided to students of the other of students, by sex, expected to apply sex; for, be admitted to, and enter each (4) Any scholarship or other financial class during the period covered by the assistance awarded by an institution of plan. higher education to an individual be- (c) Nondiscrimination. No policy or cause such individual has received such practice of a recipient to which § 618.225 award in a single-sex pageant based applies shall result in treatment of ap- upon a combination of factors related plicants to or students of such recipi- to the individual’s personal appear- ent in violation of §§ 618.300 through ance, poise, and talent. The pageant, 618.310 unless such treatment is neces- however, must comply with other non- sitated by an obstacle identified in discrimination provisions of Federal paragraph (b)(3) of this section and a law. schedule for eliminating that obstacle (c) Program or activity or program has been provided as required by para- means: graph (b)(4) of this section. (1) All of the operations of any entity (d) Effects of past exclusion. To over- described in paragraphs (c)(1)(i) come the effects of past exclusion of through (iv) of this section, any part of students on the basis of sex, each edu- which is extended Federal financial as- cational institution to which § 618.225 sistance: applies shall include in its transition (i)(A) A department, agency, special plan, and shall implement, specific purpose district, or other instrumen- steps designed to encourage individuals tality of a State or of a local govern- of the previously excluded sex to apply ment; or for admission to such institution. Such (B) The entity of such State or local steps shall include instituting recruit- government that distributes such as- ment programs that emphasize the in- sistance and each such department or stitution’s commitment to enrolling agency (and each other State or local students of the sex previously ex- government entity) to which the as- cluded. sistance is extended, in the case of assistance to a State or local govern- § 618.235 Statutory amendments. ment; (a) This section, which applies to all (ii)(A) A college, university, or other provisions of these Title IX regula- postsecondary institution, or a public tions, addresses statutory amendments system of higher education; or to Title IX. (B) A local educational agency (as de- (b) These Title IX regulations shall fined in section 8801 of title 20), system not apply to or preclude: of vocational education, or other (1) Any program or activity of the school system; American Legion undertaken in con- (iii)(A) An entire corporation, part- nection with the organization or oper- nership, or other private organization, ation of any Boys State conference, or an entire sole proprietorship— Boys Nation conference, Girls State (1) If assistance is extended to such conference, or Girls Nation conference; corporation, partnership, private orga- (2) Any program or activity of a sec- nization, or sole proprietorship as a ondary school or educational institu- whole; or tion specifically for: (2) Which is principally engaged in (i) The promotion of any Boys State the business of providing education, conference, Boys Nation conference, health care, housing, social services, or Girls State conference, or Girls Nation parks and recreation; or conference; or (B) The entire plant or other com- (ii) The selection of students to at- parable, geographically separate facil- tend any such conference; ity to which Federal financial assist- (3) Father-son or mother-daughter ance is extended, in the case of any activities at an educational institution other corporation, partnership, private or in an education program or activity, organization, or sole proprietorship; or

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(iv) Any other entity that is estab- Subpart C—Discrimination on the lished by two or more of the entities Basis of Sex in Admission and described in paragraphs (c)(1)(i), (ii), or Recruitment Prohibited (iii) of this section. (2)(i) Program or activity does not in- § 618.300 Admission. clude any operation of an entity that is (a) General. No person shall, on the controlled by a religious organization basis of sex, be denied admission, or be if the application of 20 U.S.C. 1681 to subjected to discrimination in admis- such operation would not be consistent sion, by any recipient to which with the religious tenets of such orga- §§ 618.300 through 618.310 apply, except nization. as provided in §§ 618.225 and 618.230. (ii) For example, all of the operations (b) Specific prohibitions. (1) In deter- of a college, university, or other post- mining whether a person satisfies any secondary institution, including but policy or criterion for admission, or in not limited to traditional educational making any offer of admission, a re- operations, faculty and student hous- cipient to which §§ 618.300 through ing, campus shuttle bus service, cam- 618.310 apply shall not: (i) Give preference to one person over pus restaurants, the bookstore, and another on the basis of sex, by ranking other commercial activities are part of applicants separately on such basis, or a ‘‘program or activity’’ subject to otherwise; these Title IX regulations if the col- (ii) Apply numerical limitations upon lege, university, or other institution the number or proportion of persons of receives Federal financial assistance. either sex who may be admitted; or (d)(1) Nothing in these Title IX regu- (iii) Otherwise treat one individual lations shall be construed to require or differently from another on the basis of prohibit any person, or public or pri- sex. vate entity, to provide or pay for any (2) A recipient shall not administer benefit or service, including the use of or operate any test or other criterion facilities, related to an abortion. Med- for admission that has a disproportion- ical procedures, benefits, services, and ately adverse effect on persons on the the use of facilities, necessary to save basis of sex unless the use of such test the life of a pregnant woman or to ad- or criterion is shown to predict validly dress complications related to an abor- success in the education program or activity in question and alternative tests tion are not subject to this section. or criteria that do not have such a dis- (2) Nothing in this section shall be proportionately adverse effect are construed to permit a penalty to be im- shown to be unavailable. posed on any person or individual be- (c) Prohibitions relating to marital or cause such person or individual is seek- parental status. In determining whether ing or has received any benefit or serv- a person satisfies any policy or cri- ice related to a legal abortion. Accord- terion for admission, or in making any ingly, subject to paragraph (d)(1) of offer of admission, a recipient to which this section, no person shall be ex- §§ 618.300 through 618.310 apply: cluded from participation in, be denied (1) Shall not apply any rule con- the benefits of, or be subjected to dis- cerning the actual or potential paren- crimination under any academic, ex- tal, family, or marital status of a stu- tracurricular, research, occupational dent or applicant that treats persons training, employment, or other edu- differently on the basis of sex; cational program or activity operated (2) Shall not discriminate against or by a recipient that receives Federal fi- exclude any person on the basis of nancial assistance because such indi- pregnancy, childbirth, termination of vidual has sought or received, or is pregnancy, or recovery therefrom, or seeking, a legal abortion, or any ben- establish or follow any rule or practice that so discriminates or excludes; efit or service related to a legal abor- (3) Subject to § 618.235(d), shall treat tion. disabilities related to pregnancy, childbirth, termination of pregnancy, or recovery therefrom in the same manner

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and under the same policies as any Subpart D—Discrimination on the other temporary disability or physical Basis of Sex in Education Pro- condition; and grams or Activities Prohibited (4) Shall not make pre-admission inquiry as to the marital status of an ap- § 618.400 Education programs or ac- plicant for admission, including wheth- tivities. er such applicant is ‘‘Miss’’ or ‘‘Mrs.’’ (a) General. Except as provided else- A recipient may make pre-admission where in these Title IX regulations, no inquiry as to the sex of an applicant for person shall, on the basis of sex, be ex- admission, but only if such inquiry is cluded from participation in, be denied made equally of such applicants of both the benefits of, or be subjected to dis- sexes and if the results of such inquiry crimination under any academic, ex- are not used in connection with dis- tracurricular, research, occupational crimination prohibited by these Title training, or other education program IX regulations. or activity operated by a recipient that receives Federal financial assistance. § 618.305 Preference in admission. Sections 618.400 through 618.455 do not apply to actions of a recipient in con- A recipient to which §§ 618.300 nection with admission of its students through 618.310 apply shall not give to an education program or activity of preference to applicants for admission, a recipient to which §§ 618.300 through on the basis of attendance at any edu- 618.310 do not apply, or an entity, not a cational institution or other school or recipient, to which §§ 618.300 through entity that admits as students only or 618.310 would not apply if the entity predominantly members of one sex, if were a recipient. the giving of such preference has the (b) Specific prohibitions. Except as pro- effect of discriminating on the basis of vided in §§ 618.400 through 618.455, in sex in violation of §§ 618.300 through providing any aid, benefit, or service to 618.310. a student, a recipient shall not, on the basis of sex: § 618.310 Recruitment. (1) Treat one person differently from another in determining whether such (a) Nondiscriminatory recruitment. A person satisfies any requirement or recipient to which §§ 618.300 through condition for the provision of such aid, 618.310 apply shall not discriminate on benefit, or service; the basis of sex in the recruitment and (2) Provide different aid, benefits, or admission of students. A recipient may services or provide aid, benefits, or be required to undertake additional re- services in a different manner; cruitment efforts for one sex as reme- (3) Deny any person any such aid, dial action pursuant to § 618.110(a), and benefit, or service; may choose to undertake such efforts (4) Subject any person to separate or as affirmative action pursuant to different rules of behavior, sanctions, § 618.110(b). or other treatment; (b) Recruitment at certain institutions. (5) Apply any rule concerning the A recipient to which §§ 618.300 through domicile or residence of a student or 618.310 apply shall not recruit pri- applicant, including eligibility for in- marily or exclusively at educational state fees and tuition; institutions, schools, or entities that (6) Aid or perpetuate discrimination admit as students only or predomi- against any person by providing sig- nantly members of one sex, if such ac- nificant assistance to any agency, organization, or person that discrimi- tions have the effect of discriminating nates on the basis of sex in providing on the basis of sex in violation of any aid, benefit, or service to students §§ 618.300 through 618.310. 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

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foreign institution. A recipient edu- cluding housing provided only to mar- cational institution may administer or ried students). assist in the administration of scholar- (b) Housing provided by recipient. (1) A ships, fellowships, or other awards es- recipient may provide separate housing tablished by foreign or domestic wills, on the basis of sex. trusts, or similar legal instruments, or (2) Housing provided by a recipient to by acts of foreign governments and re- students of one sex, when compared to stricted to members of one sex, that that provided to students of the other are designed to provide opportunities sex, shall be as a whole: to study abroad, and that are awarded (i) Proportionate in quantity to the to students who are already matricu- number of students of that sex apply- lating at or who are graduates of the ing for such housing; and recipient institution; Provided, that a (ii) Comparable in quality and cost to recipient educational institution that the student. administers or assists in the adminis- (c) Other housing. (1) A recipient shall tration of such scholarships, fellow- not, on the basis of sex, administer dif- ships, or other awards that are re- ferent policies or practices concerning stricted to members of one sex pro- occupancy by its students of housing vides, or otherwise makes available, other than that provided by such re- reasonable opportunities for similar cipient. studies for members of the other sex. (2)(i) A recipient which, through so- Such opportunities may be derived licitation, listing, approval of housing, from either domestic or foreign or otherwise, assists any agency, orga- sources. nization, or person in making housing available to any of its students, shall (d) Aids, benefits or services not pro- take such reasonable action as may be vided by recipient. (1) This paragraph (d) necessary to assure itself that such applies to any recipient that requires housing as is provided to students of participation by any applicant, stu- one sex, when compared to that pro- dent, or employee in any education vided to students of the other sex, is as program or activity not operated whol- a whole: ly by such recipient, or that facilitates, (A) Proportionate in quantity; and permits, or considers such participa- (B) Comparable in quality and cost to tion as part of or equivalent to an edu- the student. cation program or activity operated by (ii) A recipient may render such as- such recipient, including participation sistance to any agency, organization, in educational consortia and coopera- or person that provides all or part of tive employment and student-teaching such housing to students of only one assignments. sex. (2) Such recipient: (i) Shall develop and implement a § 618.410 Comparable facilities. procedure designed to assure itself that A recipient may provide separate toi- the operator or sponsor of such other let, locker room, and shower facilities education program or activity takes no on the basis of sex, but such facilities action affecting any applicant, student, provided for students of one sex shall or employee of such recipient that be comparable to such facilities pro- these Title IX regulations would provided for students of the other sex. hibit such recipient from taking; and (ii) Shall not facilitate, require, per- § 618.415 Access to course offerings. mit, or consider such participation if (a) A recipient shall not provide any such action occurs. course or otherwise carry out any of its education program or activity sepa- § 618.405 Housing. rately on the basis of sex, or require or (a) Generally. A recipient shall not, refuse participation therein by any of on the basis of sex, apply different its students on such basis, including rules or regulations, impose different health, physical education, industrial, fees or requirements, or offer different business, vocational, technical, home services or benefits related to housing, economics, music, and adult education except as provided in this section (in- courses.

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(b)(1) With respect to classes and ac- cility offered in or through such tivities in physical education at the el- schools. ementary school level, the recipient shall comply fully with this section as § 618.425 Counseling and use of ap- expeditiously as possible but in no praisal and counseling materials. event later than one year from Sep- (a) Counseling. A recipient shall not tember 29, 2000. With respect to phys- discriminate against any person on the ical education classes and activities at basis of sex in the counseling or guid- the secondary and post-secondary lev- ance of students or applicants for ad- els, the recipient shall comply fully mission. with this section as expeditiously as (b) Use of appraisal and counseling ma- possible but in no event later than terials. A recipient that uses testing or three years from September 29, 2000. other materials for appraising or coun- (2) This section does not prohibit seling students shall not use different grouping of students in physical edu- materials for students on the basis of cation classes and activities by ability their sex or use materials that permit as assessed by objective standards of or require different treatment of stu- individual performance developed and dents on such basis unless such dif- applied without regard to sex. ferent materials cover the same occu- (3) This section does not prohibit sep- pations and interest areas and the use aration of students by sex within phys- of such different materials is shown to ical education classes or activities dur- be essential to eliminate sex bias. Re- ing participation in wrestling, boxing, cipients shall develop and use internal rugby, ice hockey, football, basketball, procedures for ensuring that such ma- and other sports the purpose or major terials do not discriminate on the basis activity of which involves bodily con- of sex. Where the use of a counseling tact. test or other instrument results in a (4) Where use of a single standard of substantially disproportionate number measuring skill or progress in a phys- of members of one sex in any particular ical education class has an adverse ef- course of study or classification, the fect on members of one sex, the recipi- recipient shall take such action as is ent shall use appropriate standards necessary to assure itself that such dis- that do not have such effect. proportion is not the result of discrimi- (5) Portions of classes in elementary nation in the instrument or its applica- and secondary schools, or portions of tion. education programs or activities, that (c) Disproportion in classes. Where a deal exclusively with human sexuality recipient finds that a particular class may be conducted in separate sessions contains a substantially dispropor- for boys and girls. tionate number of individuals of one (6) Recipients may make require- sex, the recipient shall take such ac- ments based on vocal range or quality tion as is necessary to assure itself that may result in a chorus or choruses that such disproportion is not the re- of one or predominantly one sex. sult of discrimination on the basis of sex in counseling or appraisal mate- § 618.420 Access to schools operated by rials or by counselors. LEAs. A recipient that is a local edu- § 618.430 Financial assistance. cational agency shall not, on the basis (a) General. Except as provided in of sex, exclude any person from admis- paragraphs (b) and (c) of this section, sion to: in providing financial assistance to any (a) Any institution of vocational edu- of its students, a recipient shall not: cation operated by such recipient; or (1) On the basis of sex, provide dif- (b) Any other school or educational ferent amounts or types of such assist- unit operated by such recipient, unless ance, limit eligibility for such assist- such recipient otherwise makes avail- ance that is of any particular type or able to such person, pursuant to the source, apply different criteria, or oth- same policies and criteria of admission, erwise discriminate; courses, services, and facilities com- (2) Through solicitation, listing, ap- parable to each course, service, and fa- proval, provision of facilities, or other

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services, assist any foundation, trust, for members of each sex as part of sep- agency, organization, or person that arate athletic teams for members of provides assistance to any of such re- each sex to the extent consistent with cipient’s students in a manner that dis- this paragraph (c) and § 618.450. criminates on the basis of sex; or (3) Apply any rule or assist in appli- § 618.435 Employment assistance to cation of any rule concerning eligi- students. bility for such assistance that treats (a) Assistance by recipient in making persons of one sex differently from per- available outside employment. A recipi- sons of the other sex with regard to ent that assists any agency, organiza- marital or parental status. tion, or person in making employment (b) Financial aid established by certain available to any of its students: legal instruments. (1) A recipient may (1) Shall assure itself that such em- administer or assist in the administra- ployment is made available without tion of scholarships, fellowships, or discrimination on the basis of sex; and other forms of financial assistance es- (2) Shall not render such services to tablished pursuant to domestic or for- any agency, organization, or person eign wills, trusts, bequests, or similar that discriminates on the basis of sex legal instruments or by acts of a for- in its employment practices. eign government that require that (b) Employment of students by recipi- awards be made to members of a parents. A recipient that employs any of ticular sex specified therein; Provided, its students shall not do so in a manner that the overall effect of the award of that violates §§ 618.500 through 618.550. such sex-restricted scholarships, fellowships, and other forms of financial § 618.440 Health and insurance bene- assistance does not discriminate on the fits and services. basis of sex. (2) To ensure nondiscriminatory Subject to § 618.235(d), in providing a awards of assistance as required in medical, hospital, accident, or life in- paragraph (b)(1) of this section, recipi- surance benefit, service, policy, or plan ents shall develop and use procedures to any of its students, a recipient shall under which: not discriminate on the basis of sex, or (i) Students are selected for award of provide such benefit, service, policy, or financial assistance on the basis of plan in a manner that would violate nondiscriminatory criteria and not on §§ 618.500 through 618.550 if it were pro- the basis of availability of funds re- vided to employees of the recipient. stricted to members of a particular sex; This section shall not prohibit a recipi- (ii) An appropriate sex-restricted ent from providing any benefit or serv- scholarship, fellowship, or other form ice that may be used by a different proof financial assistance is allocated to portion of students of one sex than of each student selected under paragraph the other, including family planning (b)(2)(i) of this section; and services. However, any recipient that (iii) No student is denied the award provides full coverage health service for which he or she was selected under shall provide gynecological care. paragraph (b)(2)(i) of this section be- § 618.445 Marital or parental status. cause of the absence of a scholarship, fellowship, or other form of financial (a) Status generally. A recipient shall assistance designated for a member of not apply any rule concerning a stu- that student’s sex. dent’s actual or potential parental, (c) Athletic scholarships. (1) To the ex- family, or marital status that treats tent that a recipient awards athletic students differently on the basis of sex. scholarships or grants-in-aid, it must (b) Pregnancy and related conditions. provide reasonable opportunities for (1) A recipient shall not discriminate such awards for members of each sex in against any student, or exclude any proportion to the number of students student from its education program or of each sex participating in inter- activity, including any class or extra- scholastic or intercollegiate athletics. curricular activity, on the basis of such (2) A recipient may provide separate student’s pregnancy, childbirth, false athletic scholarships or grants-in-aid pregnancy, termination of pregnancy,

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or recovery therefrom, unless the stu- (b) Separate teams. Notwithstanding dent requests voluntarily to partici- the requirements of paragraph (a) of pate in a separate portion of the pro- this section, a recipient may operate or gram or activity of the recipient. sponsor separate teams for members of (2) A recipient may require such a each sex where selection for such student to obtain the certification of a teams is based upon competitive skill physician that the student is phys- or the activity involved is a contact ically and emotionally able to continue sport. However, where a recipient oper- participation as long as such a certifi- ates or sponsors a team in a particular cation is required of all students for sport for members of one sex but oper- other physical or emotional conditions ates or sponsors no such team for mem- requiring the attention of a physician. bers of the other sex, and athletic op- (3) A recipient that operates a por- portunities for members of that sex tion of its education program or activ- have previously been limited, members ity separately for pregnant students, of the excluded sex must be allowed to admittance to which is completely vol- try out for the team offered unless the untary on the part of the student as sport involved is a contact sport. For provided in paragraph (b)(1) of this sec- the purposes of these Title IX regulation, shall ensure that the separate tions, contact sports include boxing, portion is comparable to that offered wrestling, rugby, ice hockey, football, to non-pregnant students. basketball, and other sports the pur- (4) Subject to § 618.235(d), a recipient pose or major activity of which in- shall treat pregnancy, childbirth, false volves bodily contact. pregnancy, termination of pregnancy (c) Equal opportunity. (1) A recipient and recovery therefrom in the same that operates or sponsors inter- manner and under the same policies as scholastic, intercollegiate, club, or in- any other temporary disability with re- tramural athletics shall provide equal spect to any medical or hospital ben- athletic opportunity for members of efit, service, plan, or policy that such both sexes. In determining whether recipient administers, operates, offers, equal opportunities are available, the or participates in with respect to stu- designated agency official will con- dents admitted to the recipient’s edu- sider, among other factors: cational program or activity. (i) Whether the selection of sports (5) In the case of a recipient that does and levels of competition effectively not maintain a leave policy for its stu- accommodate the interests and abili- dents, or in the case of a student who ties of members of both sexes; does not otherwise qualify for leave (ii) The provision of equipment and under such a policy, a recipient shall supplies; treat pregnancy, childbirth, false preg- (iii) Scheduling of games and prac- nancy, termination of pregnancy, and tice time; recovery therefrom as a justification (iv) Travel and per diem allowance; for a leave of absence for as long a pe- (v) Opportunity to receive coaching riod of time as is deemed medically and academic tutoring; necessary by the student’s physician, (vi) Assignment and compensation of at the conclusion of which the student coaches and tutors; shall be reinstated to the status that (vii) Provision of locker rooms, prac- she held when the leave began. tice, and competitive facilities; (viii) Provision of medical and train- § 618.450 Athletics. ing facilities and services; (a) General. No person shall, on the (ix) Provision of housing and dining basis of sex, be excluded from partici- facilities and services; pation in, be denied the benefits of, be (x) Publicity. treated differently from another per- (2) For purposes of paragraph (c)(1) of son, or otherwise be discriminated this section, unequal aggregate expend- against in any interscholastic, inter- itures for members of each sex or un- collegiate, club, or intramural ath- equal expenditures for male and female letics offered by a recipient, and no re- teams if a recipient operates or spon- cipient shall provide any such athletics sors separate teams will not constitute separately on such basis. noncompliance with this section, but

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the designated agency official may §§ 618.500 through 618.550, including reconsider the failure to provide nec- lationships with employment and refer- essary funds for teams for one sex in ral agencies, with labor unions, and assessing equality of opportunity for with organizations providing or admin- members of each sex. istering fringe benefits to employees of (d) Adjustment period. A recipient that the recipient. operates or sponsors interscholastic, (4) A recipient shall not grant pref- intercollegiate, club, or intramural erences to applicants for employment athletics at the elementary school on the basis of attendance at any edu- level shall comply fully with this sec- cational institution or entity that ad- tion as expeditiously as possible but in mits as students only or predominantly no event later than one year from Sep- members of one sex, if the giving of tember 29, 2000. A recipient that oper- such preferences has the effect of dis- ates or sponsors interscholastic, inter- criminating on the basis of sex in vio- collegiate, club, or intramural ath- lation of these Title IX regulations. letics at the secondary or postsec- (b) Application. The provisions of ondary school level shall comply fully §§ 618.500 through 618.550 apply to: with this section as expeditiously as (1) Recruitment, advertising, and the possible but in no event later than process of application for employment; three years from September 29, 2000. (2) Hiring, upgrading, promotion, consideration for and award of tenure, § 618.455 Textbooks and curricular ma- demotion, transfer, layoff, termi- terial. nation, application of nepotism poli- Nothing in these Title IX regulations cies, right of return from layoff, and shall be interpreted as requiring or pro- rehiring; hibiting or abridging in any way the (3) Rates of pay or any other form of use of particular textbooks or cur- compensation, and changes in com- ricular materials. pensation; (4) Job assignments, classifications, Subpart E—Discrimination on the and structure, including position de- Basis of Sex in Employment in scriptions, lines of progression, and se- Education Programs or Activi- niority lists; ties Prohibited (5) The terms of any collective bargaining agreement; § 618.500 Employment. (6) Granting and return from leaves (a) General. (1) No person shall, on of absence, leave for pregnancy, child- the basis of sex, be excluded from par- birth, false pregnancy, termination of ticipation in, be denied the benefits of, pregnancy, leave for persons of either or be subjected to discrimination in sex to care for children or dependents, employment, or recruitment, consider- or any other leave; ation, or selection therefor, whether (7) Fringe benefits available by vir- full-time or part-time, under any edu- tue of employment, whether or not ad- cation program or activity operated by ministered by the recipient; a recipient that receives Federal finan- (8) Selection and financial support cial assistance. for training, including apprenticeship, (2) A recipient shall make all em- professional meetings, conferences, and ployment decisions in any education other related activities, selection for program or activity operated by such tuition assistance, selection for recipient in a nondiscriminatory man- sabbaticals and leaves of absence to ner and shall not limit, segregate, or pursue training; classify applicants or employees in any (9) Employer-sponsored activities, in- way that could adversely affect any ap- cluding social or recreational pro- plicant’s or employee’s employment grams; and opportunities or status because of sex. (10) Any other term, condition, or (3) A recipient shall not enter into privilege of employment. any contractual or other relationship which directly or indirectly has the ef- § 618.505 Employment criteria. fect of subjecting employees or stu- A recipient shall not administer or dents to discrimination prohibited by operate any test or other criterion for

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any employment opportunity that has (c) Maintain or establish separate a disproportionately adverse effect on lines of progression, seniority systems, persons on the basis of sex unless: career ladders, or tenure systems for (a) Use of such test or other criterion similar jobs, position descriptions, or is shown to predict validly successful job requirements that classify persons performance in the position in ques- on the basis of sex, unless sex is a bona tion; and fide occupational qualification for the (b) Alternative tests or criteria for positions in question as set forth in such purpose, which do not have such § 618.550. disproportionately adverse effect, are shown to be unavailable. § 618.525 Fringe benefits. § 618.510 Recruitment. (a) ‘‘Fringe benefits’’ defined. For purposes of these Title IX regulations, (a) Nondiscriminatory recruitment and fringe benefits means: Any medical, hos- hiring. A recipient shall not discrimi- pital, accident, life insurance, or re- nate on the basis of sex in the recruit- tirement benefit, service, policy or ment and hiring of employees. Where a plan, any profit-sharing or bonus plan, recipient has been found to be presently discriminating on the basis of sex leave, and any other benefit or service in the recruitment or hiring of employ- of employment not subject to the pro- ees, or has been found to have so dis- vision of § 618.515. criminated in the past, the recipient (b) Prohibitions. A recipient shall not: shall recruit members of the sex so dis- (1) Discriminate on the basis of sex criminated against so as to overcome with regard to making fringe benefits the effects of such past or present dis- available to employees or make fringe crimination. benefits available to spouses, families, (b) Recruitment patterns. A recipient or dependents of employees differently shall not recruit primarily or exclu- upon the basis of the employee’s sex; sively at entities that furnish as appli- (2) Administer, operate, offer, or par- cants only or predominantly members ticipate in a fringe benefit plan that of one sex if such actions have the ef- does not provide for equal periodic ben- fect of discriminating on the basis of efits for members of each sex and for sex in violation of §§ 618.500 through equal contributions to the plan by such 618.550. recipient for members of each sex; or (3) Administer, operate, offer, or par- § 618.515 Compensation. ticipate in a pension or retirement plan A recipient shall not make or enforce that establishes different optional or any policy or practice that, on the compulsory retirement ages based on basis of sex: sex or that otherwise discriminates in (a) Makes distinctions in rates of pay benefits on the basis of sex. or other compensation; (b) Results in the payment of wages § 618.530 Marital or parental status. to employees of one sex at a rate less (a) A recipient shall not than that paid to employees of the op- General. posite sex for equal work on jobs the apply any policy or take any employ- performance of which requires equal ment action: skill, effort, and responsibility, and (1) Concerning the potential marital, that are performed under similar work- parental, or family status of an em- ing conditions. ployee or applicant for employment that treats persons differently on the § 618.520 Job classification and struc- basis of sex; or ture. (2) Which is based upon whether an A recipient shall not: employee or applicant for employment (a) Classify a job as being for males is the head of household or principal or for females; wage earner in such employee’s or ap- (b) Maintain or establish separate plicant’s family unit. lines of progression, seniority lists, ca- (b) Pregnancy. A recipient shall not reer ladders, or tenure systems based discriminate against or exclude from on sex; or employment any employee or applicant

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for employment on the basis of preg- § 618.540 Advertising. nancy, childbirth, false pregnancy, ter- A recipient shall not in any adver- mination of pregnancy, or recovery tising related to employment indicate therefrom. preference, limitation, specification, or (c) Pregnancy as a temporary disability. discrimination based on sex unless sex Subject to § 618.235(d), a recipient shall is a bona fide occupational qualifica- treat pregnancy, childbirth, false preg- tion for the particular job in question. nancy, termination of pregnancy, recovery therefrom, and any temporary § 618.545 Pre-employment inquiries. disability resulting therefrom as any (a) Marital status. A recipient shall other temporary disability for all job- not make pre-employment inquiry as related purposes, including commence- to the marital status of an applicant ment, duration, and extensions of for employment, including whether leave, payment of disability income, such applicant is ‘‘Miss’’ or ‘‘Mrs.’’ accrual of seniority and any other ben- (b) Sex. A recipient may make pre- efit or service, and reinstatement, and employment inquiry as to the sex of an under any fringe benefit offered to em- applicant for employment, but only if ployees by virtue of employment. such inquiry is made equally of such (d) Pregnancy leave. In the case of a applicants of both sexes and if the re- recipient that does not maintain a sults of such inquiry are not used in leave policy for its employees, or in the connection with discrimination prohib- case of an employee with insufficient ited by these Title IX regulations. leave or accrued employment time to § 618.550 Sex as a bona fide occupa- qualify for leave under such a policy, a tional qualification. recipient shall treat pregnancy, child- A recipient may take action other- birth, false pregnancy, termination of wise prohibited by §§ 618.500 through pregnancy, and recovery therefrom as a 618.550 provided it is shown that sex is justification for a leave of absence a bona fide occupational qualification without pay for a reasonable period of for that action, such that consider- time, at the conclusion of which the ation of sex with regard to such action employee shall be reinstated to the sta- is essential to successful operation of tus that she held when the leave began the employment function concerned. A or to a comparable position, without recipient shall not take action pursu- decrease in rate of compensation or ant to this section that is based upon loss of promotional opportunities, or alleged comparative employment char- any other right or privilege of employ- acteristics or stereotyped characteriza- ment. tions of one or the other sex, or upon preference based on sex of the recipi- § 618.535 Effect of state or local law or ent, employees, students, or other per- other requirements. sons, but nothing contained in this sec- (a) Prohibitory requirements. The obli- tion shall prevent a recipient from con- gation to comply with §§ 618.500 sidering an employee’s sex in relation through 618.550 is not obviated or alle- to employment in a locker room or toi- viated by the existence of any State or let facility used only by members of one sex. local law or other requirement that imposes prohibitions or limits upon employment of members of one sex that Subpart F—Procedures are not imposed upon members of the § 618.600 Notice of covered programs. other sex. (b) Benefits. A recipient that provides Within 60 days of September 29, 2000, any compensation, service, or benefit each Federal agency that awards Fed- to members of one sex pursuant to a eral financial assistance shall publish in the FEDERAL REGISTER a notice of State or local law or other requirement the programs covered by these Title IX shall provide the same compensation, regulations. Each such Federal agency service, or benefit to members of the shall periodically republish the notice other sex. of covered programs to reflect changes

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in covered programs. Copies of this no- Subpart E—Violations of This Part and tice also shall be made available upon Consequences request to the Federal agency’s office that enforces Title IX. 630.500 How are violations of this part determined for recipients other than individuals? § 618.605 Enforcement procedures. 630.505 How are violations of this part de- The investigative, compliance, and termined for recipients who are individ- enforcement procedural provisions of uals? Title VI of the Civil Rights Act of 1964 630.510 What actions will the Federal Gov- (42 U.S.C. 2000d) (‘‘Title VI’’) are hereby ernment take against a recipient deter- adopted and applied to these Title IX mined to have violated this part? 630.515 Are there any exceptions to those regulations. These procedures may be actions? found at 45 CFR part 611. Subpart F—Definitions PART 630—GOVERNMENTWIDE RE- 630.605 Award. QUIREMENTS FOR DRUG-FREE 630.610 Controlled substance. WORKPLACE (FINANCIAL ASSIST- 630.615 Conviction. ANCE) 630.620 Cooperative agreement. 630.625 Criminal drug statute. Subpart A—Purpose and Coverage 630.630 Debarment. 630.635 Drug-free workplace. Sec. 630.640 Employee. 630.100 What does this part do? 630.645 Federal agency or agency. 630.105 Does this part apply to me? 630.650 Grant. 630.110 Are any of my Federal assistance 630.655 Individual. awards exempt from this part? 630.660 Recipient. 630.115 Does this part affect the Federal 630.665 State. contracts that I receive? 630.670 Suspension. Subpart B—Requirements for Recipients AUTHORITY: 41 U.S.C. 701 et seq. Other Than Individuals SOURCE: 68 FR 66557, 66634, Nov. 26, 2003, unless otherwise noted. 630.200 What must I do to comply with this part? 630.205 What must I include in my drug-free Subpart A—Purpose and workplace statement? Coverage 630.210 To whom must I distribute my drug- free workplace statement? § 630.100 What does this part do? 630.215 What must I include in my drug-free This part carries out the portion of awareness program? the Drug-Free Workplace Act of 1988 630.220 By when must I publish my drug-free workplace statement and establish my (41 U.S.C. 701 et seq., as amended) that drug-free awareness program? applies to grants. It also applies the 630.225 What actions must I take concerning provisions of the Act to cooperative employees who are convicted of drug vio- agreements and other financial assist- lations in the workplace? ance awards, as a matter of Federal 630.230 How and when must I identify work- Government policy. places? § 630.105 Does this part apply to me? Subpart C—Requirements for Recipients (a) Portions of this part apply to you Who Are Individuals if you are either— 630.300 What must I do to comply with this (1) A recipient of an assistance award part if I am an individual recipient? from the National Science Foundation; 630.301 [Reserved] or (2) A(n) National Science Foundation Subpart D—Responsibilities of National awarding official. (See definitions of Science Foundation Awarding Officials award and recipient in §§ 630.605 and 630.400 What are my responsibilities as a 630.660, respectively.) National Science Foundation awarding (b) The following table shows the official? subparts that apply to you:

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If you are . . . see subparts . . . (b) Second, you must identify all known workplaces under your Federal (1) A recipient who is not an individual A, B and E. awards (see § 630.230). (2) A recipient who is an individual ...... A, C and E. (3) A(n) National Science Foundation A, D and E. awarding official. § 630.205 What must I include in my drug-free workplace statement? § 630.110 Are any of my Federal assist- You must publish a statement that— ance awards exempt from this part? (a) Tells your employees that the un- This part does not apply to any lawful manufacture, distribution, dis- award that the Director or designee de- pensing, possession, or use of a con- termines that the application of this trolled substance is prohibited in your part would be inconsistent with the workplace; international obligations of the United (b) Specifies the actions that you will States or the laws or regulations of a take against employees for violating foreign government. that prohibition; and (c) Lets each employee know that, as § 630.115 Does this part affect the Fed- a condition of employment under any eral contracts that I receive? award, he or she: It will affect future contract awards (1) Will abide by the terms of the indirectly if you are debarred or sus- statement; and pended for a violation of the require- (2) Must notify you in writing if he or ments of this part, as described in she is convicted for a violation of a § 630.510(c). However, this part does not criminal drug statute occurring in the apply directly to procurement con- workplace and must do so no more tracts. The portion of the Drug-Free than five calendar days after the con- Workplace Act of 1988 that applies to viction. Federal procurement contracts is car- § 630.210 To whom must I distribute ried out through the Federal Acquisi- my drug-free workplace statement? tion Regulation in chapter 1 of Title 48 of the Code of Federal Regulations (the You must require that a copy of the drug-free workplace coverage currently statement described in § 630.205 be is in 48 CFR part 23, subpart 23.5). given to each employee who will be engaged in the performance of any Fed- eral award. Subpart B—Requirements for Recipients Other Than Individuals § 630.215 What must I include in my drug-free awareness program? § 630.200 What must I do to comply with this part? You must establish an ongoing drug- free awareness program to inform em- There are two general requirements ployees about— if you are a recipient other than an in- (a) The dangers of drug abuse in the dividual. workplace; (a) First, you must make a good faith (b) Your policy of maintaining a effort, on a continuing basis, to main- drug-free workplace; tain a drug-free workplace. You must (c) Any available drug counseling, re- agree to do so as a condition for receiv- habilitation, and employee assistance ing any award covered by this part. programs; and The specific measures that you must (d) The penalties that you may im- take in this regard are described in pose upon them for drug abuse viola- more detail in subsequent sections of tions occurring in the workplace. this subpart. Briefly, those measures are to— § 630.220 By when must I publish my (1) Publish a drug-free workplace drug-free workplace statement and statement and establish a drug-free establish my drug-free awareness awareness program for your employees program? (see §§ 630.205 through 630.220); and If you are a new recipient that does (2) Take actions concerning employ- not already have a policy statement as ees who are convicted of violating drug described in § 630.205 and an ongoing statutes in the workplace (see § 630.225). awareness program as described in

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§ 630.215, you must publish the state- State or local health, law enforcement, ment and establish the program by the or other appropriate agency. time given in the following table: § 630.230 How and when must I iden- If . . . then you . . . tify workplaces? (a) The performance period must have the policy state- (a) You must identify all known of the award is less than ment and program in place workplaces under each National 30 days. as soon as possible, but before the date on which Science Foundation award. A failure to performance is expected to do so is a violation of your drug-free be completed. workplace requirements. You may (b) The performance period must have the policy state- identify the workplaces of the award is 30 days or ment and program in place l more. within 30 days after award. (1) To the National Science Founda- (c) You believe there are ex- may ask the National Science tion official that is making the award, traordinary circumstances Foundation awarding offi- either at the time of application or that will require more than cial to give you more time 30 days for you to publish to do so. The amount of upon award; or the policy statement and additional time, if any, to (2) In documents that you keep on establish the awareness be given is at the discretion file in your offices during the perform- program. of the awarding official. ance of the award, in which case you must make the information available § 630.225 What actions must I take con- for inspection upon request by Na- cerning employees who are con- tional Science Foundation officials or victed of drug violations in the workplace? their designated representatives. (b) Your workplace identification for There are two actions you must take an award must include the actual ad- if an employee is convicted of a drug dress of buildings (or parts of build- violation in the workplace: ings) or other sites where work under (a) First, you must notify Federal the award takes place. Categorical de- agencies if an employee who is engaged scriptions may be used (e.g., all vehi- in the performance of an award informs cles of a mass transit authority or you about a conviction, as required by State highway department while in op- § 630.205(c)(2), or you otherwise learn of eration, State employees in each local the conviction. Your notification to unemployment office, performers in the Federal agencies mustl concert halls or radio studios). (1) Be in writing; (c) If you identified workplaces to (2) Include the employee’s position the National Science Foundation title; awarding official at the time of appli- (3) Include the identification num- cation or award, as described in para- ber(s) of each affected award; graph (a)(1) of this section, and any (4) Be sent within ten calendar days workplace that you identified changes after you learn of the conviction; and during the performance of the award, (5) Be sent to every Federal agency you must inform the National Science on whose award the convicted em- Foundation awarding official. ployee was working. It must be sent to every awarding official or his or her official designee, unless the Federal Subpart C—Requirements for agency has specified a central point for Recipients Who Are Individuals the receipt of the notices. (b) Second, within 30 calendar days of § 630.300 What must I do to comply learning about an employee’s convic- with this part if I am an individual tion, you must eitherl recipient? (1) Take appropriate personnel action As a condition of receiving a(n) Na- against the employee, up to and includ- tional Science Foundation award, if ing termination, consistent with the you are an individual recipient, you requirements of the Rehabilitation Act must agree that— of 1973 (29 U.S.C. 794), as amended; or (a) You will not engage in the unlaw- (2) Require the employee to partici- ful manufacture, distribution, dis- pate satisfactorily in a drug abuse as- pensing, possession, or use of a con- sistance or rehabilitation program ap- trolled substance in conducting any ac- proved for these purposes by a Federal, tivity related to the award; and

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(b) If you are convicted of a criminal § 630.505 How are violations of this drug offense resulting from a violation part determined for recipients who occurring during the conduct of any are individuals? award activity, you will report the con- An individual recipient is in viola- viction: tion of the requirements of this part if (1) In writing. the Director or designee determines, in (2) Within 10 calendar days of the writing, that— conviction. (a) The recipient has violated the re- (3) To the National Science Founda- quirements of subpart C of this part; or tion awarding official or other designee (b) The recipient is convicted of a for each award that you currently criminal drug offense resulting from a violation occurring during the conduct have, unless § 630.301 or the award docu- of any award activity. ment designates a central point for the receipt of the notices. When notice is § 630.510 What actions will the Federal made to a central point, it must in- Government take against a recipi- clude the identification number(s) of ent determined to have violated each affected award. this part? If a recipient is determined to have § 630.301 [Reserved] violated this part, as described in § 630.500 or § 630.505, the National Subpart D—Responsibilities of Na- Science Foundation may take one or tional Science Foundation more of the following actions— Awarding Officials (a) Suspension of payments under the award; § 630.400 What are my responsibilities (b) Suspension or termination of the as a(n) National Science Founda- award; and tion awarding official? (c) Suspension or debarment of the recipient under 45 CFR part 620, for a As a(n) National Science Foundation period not to exceed five years. awarding official, you must obtain each recipient’s agreement, as a condi- § 630.515 Are there any exceptions to tion of the award, to comply with the those actions? requirements in— The Director, National Science Foun- (a) Subpart B of this part, if the re- dation may waive with respect to a cipient is not an individual; or particular award, in writing, a suspen- (b) Subpart C of this part, if the re- sion of payments under an award, sus- cipient is an individual. pension or termination of an award, or suspension or debarment of a recipient Subpart E—Violations of This Part if the Director, National Science Foun- dation determines that such a waiver and Consequences would be in the public interest. This exception authority cannot be dele- § 630.500 How are violations of this part determined for recipients gated to any other official. other than individuals? A recipient other than an individual Subpart F—Definitions is in violation of the requirements of § 630.605 Award. this part if the Director or designee de- Award means an award of financial termines, in writing, that— assistance by the National Science (a) The recipient has violated the re- Foundation or other Federal agency di- quirements of subpart B of this part; or rectly to a recipient. (b) The number of convictions of the (a) The term award includes: recipient’s employees for violating (1) A Federal grant or cooperative criminal drug statutes in the work- agreement, in the form of money or place is large enough to indicate that property in lieu of money. the recipient has failed to make a good (2) A block grant or a grant in an en- faith effort to provide a drug-free titlement program, whether or not the workplace. grant is exempted from coverage under

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the Governmentwide rule 45 CFR part § 630.630 Debarment. 602 that implements OMB Circular A– Debarment means an action taken by 102 (for availability, see 5 CFR 1310.3) a Federal agency to prohibit a recipi- and specifies uniform administrative requirements. ent from participating in Federal Gov- ernment procurement contracts and (b) The term award does not include: covered nonprocurement transactions. (1) Technical assistance that provides A recipient so prohibited is debarred, services instead of money. in accordance with the Federal Acqui- (2) Loans. sition Regulation for procurement con- (3) Loan guarantees. tracts (48 CFR part 9, subpart 9.4) and (4) Interest subsidies. the common rule, Government-wide (5) Insurance. Debarment and Suspension (Non- (6) Direct appropriations. procurement), that implements Execu- (7) Veterans’ benefits to individuals tive Order 12549 and Executive Order (i.e., any benefit to veterans, their fam- 12689. ilies, or survivors by virtue of the service of a veteran in the Armed Forces of § 630.635 Drug-free workplace. the United States). Drug-free workplace means a site for § 630.610 Controlled substance. the performance of work done in connection with a specific award at which Controlled substance means a con- employees of the recipient are prohib- trolled substance in schedules I ited from engaging in the unlawful through V of the Controlled Substances manufacture, distribution, dispensing, Act (21 U.S.C. 812), and as further de- possession, or use of a controlled sub- fined by regulation at 21 CFR 1308.11 stance. through 1308.15. § 630.640 Employee. § 630.615 Conviction. (a) Employee means the employee of a Conviction means a finding of guilt recipient directly engaged in the per- (including a plea of nolo contendere) or formance of work under the award, in- imposition of sentence, or both, by any cluding— judicial body charged with the respon- (1) All direct charge employees; sibility to determine violations of the Federal or State criminal drug stat- (2) All indirect charge employees, un- utes. less their impact or involvement in the performance of work under the award § 630.620 Cooperative agreement. is insignificant to the performance of the award; and Cooperative agreement means an award of financial assistance that, consistent (3) Temporary personnel and consult- with 31 U.S.C. 6305, is used to enter into ants who are directly engaged in the the same kind of relationship as a performance of work under the award grant (see definition of grant in and who are on the recipient’s payroll. § 630.650), except that substantial in- (b) This definition does not include volvement is expected between the workers not on the payroll of the re- Federal agency and the recipient when cipient (e.g., volunteers, even if used to carrying out the activity contemplated meet a matching requirement; consult- by the award. The term does not in- ants or independent contractors not on clude cooperative research and devel- the payroll; or employees of subrecipi- opment agreements as defined in 15 ents or subcontractors in covered U.S.C. 3710a. workplaces).

§ 630.625 Criminal drug statute. § 630.645 Federal agency or agency. Criminal drug statute means a Federal Federal agency or agency means any or non-Federal criminal statute involv- United States executive department, ing the manufacture, distribution, dis- military department, government cor- pensing, use, or possession of any con- poration, government controlled cor- trolled substance. poration, any other establishment in

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the executive branch (including the Ex- 12689. Suspension of a recipient is a dis- ecutive Office of the President), or any tinct and separate action from suspen- independent regulatory agency. sion of an award or suspension of payments under an award. § 630.650 Grant. Grant means an award of financial as- PART 640—COMPLIANCE WITH THE sistance that, consistent with 31 U.S.C. NATIONAL ENVIRONMENTAL 6304, is used to enter into a relation- POLICY ACT ship— (a) The principal purpose of which is Sec. to transfer a thing of value to the re- 640.1 Purpose. cipient to carry out a public purpose of 640.2 Committee on Environmental Matters. support or stimulation authorized by a 640.3 Actions requiring an environmental law of the United States, rather than assessment and categorical exclusions. to acquire property or services for the 640.4 Responsibilities and procedures for Federal Government’s direct benefit or preparation of an environmental assess- use; and ment. (b) In which substantial involvement 640.5 Responsibilities and procedures for preparation of an environmental impact is not expected between the Federal statement. agency and the recipient when carrying out the activity contemplated by the AUTHORITY: NEPA; the Environmental award. Quality Improvement Act of 1970, as amended (42 U.S.C. 4371 et seq.); sec. 309 of the Clean § 630.655 Individual. Air Act, as amended (42 U.S.C. 7609); E.O. 11514, ‘‘Protection and Enhancement of Envi- Individual means a natural person. ronmental Quality’’ (March 5, 1970, as amended by E.O. 11991, May 24, 1977); and § 630.660 Recipient. CEQ regulations at 40 CFR Parts 1500 Recipient means any individual, cor- through 1508. poration, partnership, association, unit SOURCE: 45 FR 40, Jan. 2, 1980, unless other- of government (except a Federal agen- wise noted. cy) or legal entity, however organized, that receives an award directly from a § 640.1 Purpose. Federal agency. The purpose of this regulation is to adopt NSF procedures to supplement § 630.665 State. regulations at 40 CFR parts 1500 State means any of the States of the through 1508 (hereafter referred to as United States, the District of Colum- ‘‘CEQ regulations’’). bia, the Commonwealth of Puerto Rico, or any territory or possession of the § 640.2 Committee on Environmental United States. Matters. (a) There is established an NSF Com- § 630.670 Suspension. mittee on Environmental Matters Suspension means an action taken by (hereafter referred to as the Com- a Federal agency that immediately mittee) to consist of one representative prohibits a recipient from partici- from each directorate. The General pating in Federal Government procure- Counsel, or his or her designee, shall ment contracts and covered non- serve as Chairman. At the discretion of procurement transactions for a tem- the Chairman and with the concur- porary period, pending completion of rence of the Committee, additional an investigation and any judicial or ad- members may be appointed. ministrative proceedings that may (b) All incoming correspondence from ensue. A recipient so prohibited is sus- CEQ and other agencies concerning pended, in accordance with the Federal matters related to NEPA, including Acquisition Regulation for procure- draft and final environmental impact ment contracts (48 CFR part 9, subpart statements, shall be brought to the at- 9.4) and the common rule, Government- tention of the Chairman. The Chair- wide Debarment and Suspension (Non- man will prepare or, at his or her dis- procurement), that implements Execu- cretion, coordinate replies to such cor- tive Order 12549 and Executive Order respondence.

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(c) The Committee shall meet regu- long term effects are basically specula- larly to discuss NSF policies and prac- tive and unknowable in advance; thus tices regarding NEPA, and make rec- they normally do not provide a suffi- ommendations on the need for or ade- cient basis for classifying research as quacy of environmental impact assess- subject to NEPA (See 40 CFR 1508.8) ments or statements. and are categorically excluded from an (d) With respect to actions of NSF, environmental assessment. Neverthe- the Committee will: less, in some cases the actual proce- (1) Maintain a list of actions for dures used in carrying out the research which environmental impact state- may have potential environmental ef- ments are being prepared. fects, particularly where the project re- (2) Revise this list at regular inter- quires construction of facilities or vals, based on input from the direc- major disturbance of the local environ- torates, and send revisions to CEQ. ment brought about by blasting, drill- (3) Make the list available for public ing, excavating, or other means. Ac- inspection on request. cordingly, except as provided in para- (4) Maintain a list of environmental graph (c) of this section, the following impact assessments. types of activities require at least an (5) Maintain a file of draft and final environmental assessment: environmental impact statements. (1) Cases where developmental efforts (e) The Committee and/or the Chair- are supported, if the project supports man will perform such additional func- the transition of a particular tech- tions as are set forth elsewhere in this nology from the development stage to part and in other NSF issuances. large-scale commercial utilization. [45 FR 40, Jan. 2, 1980, as amended at 49 FR (2) Any project supporting construc- 37596, Sept. 25, 1984; 59 FR 37438, July 22, 1994] tion, other than interior remodelling. (3) Cases where field work affecting § 640.3 Actions requiring an environ- the natural environment will be con- mental assessment and categorical ducted. exclusions. (4) Any project that will involve (a) The types of actions to be classi- drilling of the earth, excavation, explo- fied as ‘‘major Federal actions’’ subject sives, weather modification, or other to NEPA procedures are discussed gen- techniques that may alter a local envi- erally in the CEQ regulations. Para- ronment. graph (b) of this section describes var- (5) Any project that provides for the ious classes of NSF actions that nor- testing and release of biological-con- mally require the preparation of an en- trol agents for purposes of ecosystem vironmental assessment or an EIS, and manipulation and assessment of short- those classes that are categorically ex- and long-term effects of major eco- cluded. (Categorical exclusion is de- system perturbation. fined at 40 CFR 1508.4.) The word ‘‘nor- (c) Directorates having divisions or mally’’ is stressed; there may be indi- programs with a substantial number of vidual cases in which specific factors projects that fall within categories (3), require contrary action. NSF direc- (4), and (5) in (b) of this section, are au- torates and offices are responsible for thorized to issue supplemental guide- identifying situations in which an envi- lines to Division Directors and Pro- ronmental assessment or an EIS should gram Officers establishing subcat- be prepared even if not normally re- egories of research methodologies or quired by paragraph (b) of this para- techniques for which environmental as- graph. sessments need not be prepared. For (b) Most NSF awards support indi- example, if a program regularly sup- vidual scientific research projects and ports research that involves are not ‘‘major Federal actions signifi- noninvasive techniques or nonharmful cantly affecting the quality of the invasive techniques (such as taking human environment’’ except in the water or soil samples, or collecting sense that the long term effect of the non-protected species of flora and accumulation of human knowledge is fauna) the directorate may determine likely to affect the quality of the that field projects otherwise coming human environment. However, such under paragraph (b)(3) of this section

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which involve only the use of such an environmental impact statement or a techniques do not require an environ- finding of no significant impact. mental assessment. However, any such (2) Aid an agency’s compliance with the guidelines must be submitted to the Act when no environmental impact statement is necessary. Chairman for approval. (3) Facilitate preparation of a statement (d) In some cases within the cat- when one is necessary. egories listed in paragraph (b) of this (b) Shall include brief discussions of the section, it will be evident at the outset need for the proposal, of alternatives as re- or after the assessment process is quired by section 102(2)(E), of the environ- begun that an EIS should be prepared. mental impacts of the proposed action and In such cases an assessment need not alternatives, and a listing of agencies and be completed, but the process of pre- persons consulted. paring an EIS (See § 640.5, of this part) (d) A copy of the assessment or drafts should be started. shall accompany the appropriate proposal throughout the NSF internal re- § 640.4 Responsibilities and proce- view and approval process. At the op- dures for preparation of an envi- tion of the directorate preparing the ronmental assessment. assessment, a draft may be submitted (a) Program Officers, as the first to the Committee for its review and point of decision in the review process, comments. Prior to an award decision, shall determine into which category in- one copy of all completed assessments coming proposals fall, according to the shall be sent to the Chairman for re- criteria set forth in § 640.3 of this part. view and updating of the Committee Notwithstanding this responsibility of listing of assessments. the Program Officer, the appropriate (e) If, on the basis of an environ- Division Director, Assistant Director, mental assessment, it is determined and other reviewing policy officials that an EIS is not required, a Finding must assure that adequate analysis is of No Significant Impact (FNSI) as de- being made. scribed in 40 CFR 1508.13 will be pre- (b) Where appropriate, programs, di- pared. The FNSI shall include the envi- visions, or directorates will advise pro- ronmental assessment or a summary of spective applicants in program an- it and be available to the public from nouncements, requests for proposals, the Committee. If the proposed action and other NSF-prepared brochures of is one that normally requires an EIS, is the requirement to furnish information closely similar to an action normally regarding any environmental impact requiring an EIS, or is without prece- that the applicant’s proposed study dent, the FNSI shall be made available may have. for a 30 day public review period before (c) Should an environmental assess- any action is taken. ment be required, the directorate supporting the activity shall be respon- § 640.5 Responsibilities and proce- sible for its preparation. The grant or dures for preparation of an envi- contract applicant may be asked to ronmental impact statement. submit additional information in order (a) If initially or after an environ- that a reasonable and accurate assess- mental assessment has been completed, ment may be made. Though no specific it is determined that an environmental format for an environmental assess- impact statement should be prepared, ment is prescribed, it shall be a sepa- it and other related documentation rate document suitable for public re- will be prepared by the directorate review and shall serve the purpose de- sponsible for the action in accordance scribed in 40 CFR 1508.9, which is with section 102(2)(c) of the Act, this quoted in full as follows: part, and the CEQ regulations. The re- Section 1508.9 Environmental Assessment sponsible directorate will be in close communication with the grant or con- ‘‘Environmental Assessment’’: tract applicant and may have to rely (a) Means a concise public document for which a Federal agency is responsible that extensively on his or her input in pre- serves to: paring the EIS. However, once a docu- (1) Briefly provide sufficient evidence and ment is prepared it shall be submitted analysis for determining whether to prepare to the Chairman who, after such review

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by the Committee as is deemed nec- actions shall be avoided by NSF per- essary by the Chairman, shall transmit sonnel during the process of prepara- the document as required by CEQ regu- tion of an EIS and for a period of thirty lations and this part. If the Chairman days after the final EIS is filed with considers a document unsatisfactory, EPA, unless such actions are necessary he or she shall return it to the respon- to comply with other specific statutory sible directorate for revision prior to requirements. an award decision. (2) 40 CFR 1506.10 also places certain Specifically, the following steps, as limitations on the timing of agency de- discussed in the CEQ regulations, will cisions on taking ‘‘major Federal ac- be followed in preparing an EIS: tions’’. In some cases the actual ‘‘deci- (1) A notice of intent to prepare a sion point’’ may be more clear-cut than draft EIS will be published as described others. If the ‘‘action’’ that neces- in 40 CFR 1501.7. sitated the preparation of an EIS is one (2) Scoping, as described in 40 CFR that would be carried out under grant, 1501.7, will be conducted. contract, or cooperative agreement, (3) The format and contents of the then the award shall not be made be- draft and final EIS shall be as dis- fore the times set forth in 40 CFR cussed in 40 CFR part 1502. 1506.10, unless such action is necessary (4) Comments on the draft EIS shall to comply with other specific statutory be invited as set forth in 40 CFR 1503.1. requirements, or as exceptions are The minimum period to be afforded for needed as provided in 40 CFR 1506.10, comments on a draft EIS shall be 45 1506.11, or 1507.3. However, an award for days, unless a lesser period is necessary preliminary planning proposals may be to comply with other specific statutory made before such times if it is so struc- requirements or in case of emergency tured as to require further NSF approv- circumstances, as described in 40 CFR als for funding the actual actions that 1506.11. might adversely affect the quality of (5) The requirements of 40 CFR 1506.9 the human environment. In such cases, for filing of documents with the Envi- the subsequent approvals for funding ronmental Protection Agency shall be these actions will be considered the followed. (6) The responsible directorate shall ‘‘decision’’. This is consistent with the examine carefully the basis on which requirement that environmental con- supportive studies have been conducted siderations undergo concurrent review to assure that such studies are objec- with all other project planning consid- tive and comprehensive in scope and in erations. depth. (c) In appropriate cases, if the action (7) The Act requires that the deci- involves other agencies, the Chairman sionmaking involved ‘‘utilize a system- may agree to designate another agency atic, interdisciplinary approach that as ‘‘lead agency’’ and to cooperate as will insure the integrated use of the discussed in 40 CFR 1501.5 and 1501.6. In natural and social sciences and the en- such cases, the Chairman has authority vironmental design arts.’’ If such dis- to alter the procedures described in (a) ciplines are not present on the NSF to the extent they are inconsistent staff, appropriate use should be made with functions assigned to NSF under of personnel of Federal, State, and the ‘‘cooperating agency’’ arrange- local agencies, universities, non-profit ments. organizations, or private industry. (d) A public record of decision stating (8) A copy of the draft EIS or the what the decision was; identifying al- final EIS (or a summary, if the size of ternatives that were considered, in- the EIS does not make this practical) cluding the environmentally preferable shall be included in and accompany the one(s); discussing any national policy appropriate proposal throughout the considerations that entered into the NSF internal review and approval proc- decision; and summarizing a moni- ess. toring and enforcement program if ap- (b)(1) 40 CFR 1506.1 describes the plicable for mitigation, will be pre- types of actions that should not be pared. This record of decision will be taken during the NEPA process. Such prepared at the time the decision is

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made, or if appropriate, when the agen- taken by NSF in Antarctica, either cy makes its recommendation for ac- independently or in cooperation with tion to Congress. (See 40 CFR 1505.2.) another country, are appropriately identified and considered during the PART 641—ENVIRONMENTAL AS- decisionmaking process, and that ap- SESSMENT PROCEDURES FOR propriate environmental safeguards which would limit, mitigate or prevent PROPOSED NATIONAL SCIENCE adverse impacts on the Antarctic envi- FOUNDATION ACTIONS IN ANT- ronment are identified. ARCTICA § 641.12 Applicability. Sec. The requirements set forth in this 641.10 Purpose. 641.11 Policy. part apply to all proposed projects, pro- 641.12 Applicability. grams and actions authorized or ap- 641.13 Right of action. proved by, or subject to the control and 641.14 Definitions. responsibility of NSF that may have an 641.15 Preliminary environmental review. impact on the Antarctic environment. 641.16 Preparation of environmental documents, generally. § 641.13 Right of action 641.17 Initial environmental evaluation. 641.18 Comprehensive environmental eval- The procedures set forth in this part uation. establish internal procedures to be fol- 641.19 Modification of environmental docu- lowed by NSF in considering the poten- ments. tial environmental effects of actions 641.20 Notification of the availability of en- taken in Antarctica. Nothing in this vironmental documents and other infor- part shall be construed to create a mation. cause of action. 641.21 Monitoring. 641.22 Cases of emergency. § 641.14 Definitions. AUTHORITY: E.O. 12114, 44 FR 1957, 3 CFR As used in these procedures, the 1979 Comp., p. 356. term: SOURCE: 57 FR 40339, Sept. 3, 1992, unless (a) Action means a project, program otherwise noted. or other activity, including the adoption of an official policy or formal § 641.10 Purpose. plan, that is undertaken, authorized, These procedures are designed to adopted or approved by, or subject to elicit and evaluate information that the control or responsibility of NSF, will inform the National Science Foun- the decommissioning of a physical dation (NSF) of the potential environ- plant or facility, and any change in the mental consequences of proposed U.S. scope or intensity of a project, program Antarctic Program (USAP) actions, so or action. that relevant environmental consider- (b) Antarctica means the area south of ations are taken into account by deci- 60 degrees south latitude. sionmakers before reaching final deci- (c) Antarctic environment means the sions on whether or how to proceed natural and physical environment of with proposed actions. These proce- Antarctica and its dependent and asso- dures are consistent with and imple- ciated ecosystems, but excludes social, ment the requirements of: economic and other environments. (a) Executive Order 12114 as it relates (d) Antarctic Treaty Consultative Meet- to NSF’s Antarctic activities, and ing means a meeting of the Parties to (b) the environmental assessment the Antarctic Treaty, held pursuant to provisions of the Protocol on Environ- Article IX(1) of the Treaty. mental Protection to the Antarctic (e) Comprehensive Environmental Eval- Treaty. uation or CEE means a study of the reasonably foreseeable potential effects of § 641.11 Policy. a proposed action on the antarctic en- It is the policy of NSF to use all vironment, prepared in accordance practicable means, consistent with its with the provisions of § 641.18, and in- authority, to ensure that potential en- cludes all comments thereon received vironmental effects of actions under- during the comment period described

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in § 641.18(c). A Comprehensive Environ- § 641.15 Preliminary environmental re- mental Evaluation shall constitute an view. environmental impact statement for (a) The responsible official shall be purposes of the Executive Order. notified early in the general planning (f) Environmental Action Memorandum process of actions proposed by USAP means a document briefly describing a components that may have impacts on proposed action and its potential im- the Antarctic environment, so that en- pacts, if any, on the antarctic environ- vironmental review may be integrated ment prepared by the responsible offi- into the planning and decisionmaking cial when he or she determines that a processes. The responsible official shall proposed action will have less than a conduct a preliminary environmental minor or transitory impact on the Ant- review of each action, including consid- arctic environment. eration of the potential direct and rea- (g) Environmental document means an sonably foreseeable indirect effects of a initial environmental evaluation or a proposed action on the Antarctic envi- comprehensive environmental evalua- ronment. tion. (b) If, on the basis of the preliminary (h) Environmental review means the environmental review, the responsible environmental review required by the official determines that an action will provisions of this part, and includes have less than a minor or transitory preliminary environmental review and impact on the Antarctic environment, preparation of an environmental docu- he will prepare an Environmental Ac- ment, and review by the parties to the tion Memorandum briefly summarizing Protocol, and committees established the environmental issues considered under the Protocol for that purpose, and conclusions drawn from the review. and the public, as applicable. No further environmental review shall (i) Executive Order means Executive be necessary. Order 12114, Environmental Effects Abroad of Major Federal Actions, 44 FR § 641.16 Preparation of environmental 1957. documents, generally. (j) Initial Environmental Evaluation or (a) Preparation of an environmental IEE means a study of the reasonably document. If the responsible official de- foreseeable potential effects of a pro- termines, either initially or on the posed action on the antarctic environ- basis of a preliminary environmental ment, prepared in accordance with the review, that a proposed action may provisions of § 641.17. have at least a minor or transitory im- (k) Preliminary environmental review pact on the Antarctic environment, he means the environmental review de- will prepare an environmental docu- scribed in § 641.15(a). ment in accordance with the provisions (l) Protocol means the Protocol on of this part. In making this determina- Environmental Protection to the Ant- tion, the responsible official should arctic Treaty, adopted on October 4, consider whether and to what degree 1991, in Madrid, at the fourth session of the proposed action: the Eleventh Special Antarctic Treaty (1) Has the potential to adversely af- Consultative Meeting and signed by the fect the Antarctic environment; United States on that date, and all an- (2) May adversely affect climate and nexes thereto. weather patterns; (m) Responsible official means the Di- (3) May adversely affect air or water rector of the Office of Polar Programs, quality; or any NSF employee(s) designated by (4) May affect atmospheric, terres- the Director to be principally respon- trial (including aquatic), glacial or ma- sible for the preparation of environ- rine environments; mental action memoranda or environ- (5) May detrimentally affect the dis- mental documents under this part. tribution, abundance or productivity or (n) Treaty means the Antarctic Trea- species, or populations of species of ty signed in Washington, D.C., on De- fauna and flora; cember 1, 1959, T.I.A.S No. 4780. (6) May further jeopardize endan- [57 FR 40339, Sept. 3, 1992, as amended at 59 gered or threatened species or popu- FR 37438, July 22, 1994] lations of such species;

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(7) May degrade, or pose substantial (iv) Use of radioisotopes, provided risk to, areas of biological, scientific, such use complies with applicable laws historic, aesthetic or wilderness sig- and regulations, and with NSF proce- nificance; dures for handling and disposing of (8) Has highly uncertain environ- radioisotopes. mental effects, or involves unique or (2) Interior remodelling and renova- unknown environmental risks; or tion of existing facilities. (9) Together with other actions, the Notwithstanding the foregoing, if in- effects of any one of which is individ- formation developed during the plan- ually insignificant, may have at least ning of any of the actions described in minor or transitory cumulative envi- this paragraph (c) indicates the possi- ronmental effects. bility that the action may have at (b) Prior assessments. Notwithstanding least a minor or transitory impact on the provisions of § 641.16(a), if (1) An en- the Antarctic environment, the envi- vironmental document (including a ge- ronmental effects of the action shall be neric or programmatic CEE) or its reviewed to determine the need for the equivalent has been prepared for a par- preparation of an environmental docu- ticular type of action; (2) That document. ment includes an analysis of potential (d) Coordination with other committees, environmental effects that are directly offices and federal agencies. The respon- relevant to the potential effects of the sible official shall notify NSF’s Com- proposed action, taking in account fac- mittee of Environmental Matters when tors such as the similarity of the ac- he intends to prepare an environmental tions and of the locations within which document, and will coordinate preparation of the document with those enti- they take place; and (3) There are no ties. Responsibility for preparation of potential site specific or other impacts the environmental document rests pri- that would require further evaluation, marily with the responsible official, then a new environmental document but, as soon as is feasible, he should need not be prepared. Instead, the re- consult with and encourage the partici- sponsible official shall prepare an Envi- pation of other knowledgeable individ- ronmental Action Memorandum for the uals within NSF, and, where appro- proposed action, cross-referencing the priate, with other individuals, govern- previously prepared environmental ment agencies and entities with rel- document. evant knowledge and expertise. (c) Exclusions. NSF has determined (e) Type of environmental document. that the following actions will have The type of environmental document less than a minor or transitory impact required under this part depends on the on the Antarctic environment, and are nature of the proposed action under not subject to the procedures set forth consideration. An IEE must be pre- in this part, except to the extent pro- pared for proposed actions which the vided herein: responsible official concludes may have (1) Scientific research activities in- at least a minor or transitory impact volving: on the Antarctic environment and for (i) Low volume collection of biologi- which a CEE is not prepared. A CEE cal or geologic specimens, provided no must be prepared if an IEE indicates, more mammals or birds are taken than or if it is otherwise determined, that a can normally be replaced by natural re- proposed action is likely to have more production in the following season; than a minor or transitory impact on (ii) Small-scale detonation of explo- the Antarctic environment. sives in connection with seismic re- (f) Obligation of funds. Because of lo- search conducted in the continental in- gistic constraints (i.e., constraints due terior or Antarctica where there will to transportation difficulties, inacces- be no potential for impact on native sibility of Antarctic bases for much of flora and fauna; the year, and the need to obtain items (iii) Use of weather/research balloons, or materials requiring long lead times), research rockets, and automatic it may not be possible to complete the weather stations that are to be re- environmental review of a proposed ac- trieved; and tion before funds must be committed

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and/or disbursed. In such cases, funds § 641.18 Comprehensive environmental for the proposed action may be com- evaluation. mitted and/or disbursed, provided: (a) Scoping. If it is determined that a (1) The appropriate environmental re- CEE will be prepared, the responsible view is completed before implementa- official shall publish a notice of intent tion of the proposed action in Antarc- to prepare a CEE in the FEDERAL REG- tica, and ISTER, inviting interested persons and (2) Implementation plans for the pro- government agencies to participate in posed action will be modified or can- the process of identifying significant celed, if appropriate, in light of the issues relating to the proposed action completed environmental review (in- and determining the scope of the issues cluding public comments, if applica- to be addressed in the CEE. ble). (b) Contents of CEE. A CEE shall be a concise and analytical document, pre- [57 FR 40339, Sept. 3, 1992, as amended at 59 pared in accordance with the range of FR 37438, July 22, 1994] relevant issues identified in the scoping process. It shall contain suffi- § 641.17 Initial environmental evalua- cient information to permit informed tion. consideration of the reasonably fore- (a) Contents. An IEE shall contain seeable potential environmental effects sufficient detail to assess whether a of a proposed action and possible alter- proposed action may have more than a natives to that proposed action. Such minor or transitory impact on the Ant- information shall include the fol- arctic environment, and shall include lowing: the following information: (1) A description of the proposed ac- (1) A description of the proposed action including its purpose, location, du- tion, including its purpose, location, ration and intensity; duration and intensity; and (2) A description of the initial base- (2) Consideration of alternatives to line environmental state with which the proposed action and any impacts predicted changes are to be compared, that the proposed action may have on and a prediction of the future environ- the Antarctic environment, including mental state in the absence of the pro- cumulative impacts in light of existing posed action; and known planned actions and exist- (3) A description of the methods and ing information on such actions. data used to forecast the potential impacts of the proposed action; (b) Further environmental review. If an (4) An estimate of the nature, extent, IEE indicates that a proposed action is duration and intensity of the likely di- likely to have no more than a minor or rect potential impacts of the proposed transitory impact on the Antarctic en- action; vironment, no further environmental (5) A consideration of the potential review of the action is necessary pro- indirect or second order impacts from vided that appropriate procedures, the proposed action; which may include monitoring, are put (6) A consideration of potential cu- in place to assess and verify the impact mulative impacts of the proposed ac- of the action. tion in light of existing activities and (c) Availability to public. An annual other known planned actions and avail- list of IEEs and a description of any de- able information on those actions; cisions taken in consequence thereof (7) A description of possible alter- shall be provided to the Department of natives to the proposed action, includ- State for circulation to all Parties to ing the alternative of not proceeding, the Protocol and to organizations or and the potential consequences of committees established pursuant to those alternatives, in sufficient detail the Protocol or the Treaty, as required. to allow a clear basis for choice among The Environmental Officer, Division of the alternatives and the proposed ac- Polar Programs, shall also make the tion; list and copies of final IEEs available (8) Identification of measures, includ- to the public upon request. ing monitoring, that could be employed

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to minimize, mitigate or prevent po- one hundred and twenty days after cir- tential impacts of the proposed action, culation of the draft CEE, or detect unforeseen impacts, provide (2) Fifteen months following the cir- early warning of any adverse effects, culation of the draft CEE. and carry out prompt and effective response to accidents; § 641.19 Modification of environmental documents. (9) Identification of unavoidable potential impacts of the proposed action; The responsible official should revise (10) Consideration of the potential ef- or supplement an environmental docu- fects of the proposed action on the con- ment if there is a change in a proposed duct of scientific research and on other action that may have more than a existing uses and values; minor or transitory effect on the antarctic environment, or if there are new (11) Identification of gaps in knowl- circumstances or information that in- edge and uncertainties encountered in dicate the action may have impacts compiling the information required by not anticipated in the original environ- this paragraph (b); mental document. (12) A non-technical summary of the information included in the CEE; and § 641.20 Notification of the availability (13) The name and address of the per- of environmental documents and son and/or organization which prepared other information. the CEE, and the address to which The Environmental Officer, Office of comments thereon should be directed. Polar Programs, shall make Environ- (c) Circulation of draft CEE. A draft of mental Action Memoranda, environ- each CEE shall be provided to the De- mental documents and final data ob- partment of State for circulation to all tained under § 641.21, available to the Parties to the Protocol and to organi- public upon request. However, notice of zations or committees established pur- such availability need not be given, ex- suant to the Protocol or Treaty, as re- cept as specifically provided in this quired by the Protocol, and shall be part. made publicly available. Notice of such [57 FR 40339, Sept. 3, 1992, as amended at 59 public availability shall be published in FR 37438, July 22, 1994] the FEDERAL REGISTER. All such parties shall have a period of not less than § 641.21 Monitoring. ninety (90) days within which to review Scientific, analytic and/or reporting and comment upon the draft CEE. procedures shall be put in place, in- (d) Final CEE. A final CEE shall ad- cluding appropriate monitoring of key dress, and shall include or summarize, environmental indicators, to assess and comments received on the draft CEE. verify the potential environmental im- The final CEE, notice of any decisions pacts of actions which are the subject related thereto, and any evaluation of of a CEE. All proposed actions for the significance of the predicted im- which an environmental document has pacts in relation to the advantages of been prepared shall include procedures the proposed action shall be provided designed to provide a regular and to the Department of State for circula- verifiable record of the actual impacts tion to all Parties to the Protocol, and of those actions, in order, inter alia, to shall be available to the public upon re- (a) Enable assessments to be made of quest, at least sixty (60) days prior to the extent to which such impacts are the commencement of the proposed ac- consistent with the Protocol; and tivity in Antarctica. Notice of such (b) Provide information useful for public availability shall be published in minimizing or mitigating those im- the FEDERAL REGISTER. pacts, and, where appropriate, informa- (e) Implementation of proposed action. tion on the need for suspension, can- No final decision shall be taken to pro- cellation or modification of the action. ceed in Antarctica with an action for which a final CEE is required until § 641.22 Cases of emergency. after the earlier of: This part shall not apply to actions (1) The first Antarctic Treaty Con- taken in cases of emergency relating to sultative Meeting taking place at least the safety of human life or of ships,

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aircraft or equipment and facilities of Foundation that relate to performance high value, or the protection of the en- of scientific or engineering research. vironment which require an action to As stated in the NSF Acquisition Regu- be taken without completion of the en- lation (chapter 25 of title 48 of the Code vironmental review required by this of Federal Regulations), this part ap- part. Notice of any such actions which plies to contracts as well as to grants would otherwise have required the and cooperative agreements. preparation of a CEE shall be provided immediately to the Department of § 650.2 National Science Foundation State for circulation to all Parties to patent policy. the Protocol and to committees and or- As authorized by the National ganizations established pursuant to the Science Board at its 230th meeting, Oc- Treaty or Protocol, as required. A de- tober 15–16, 1981, the Director of the scription of the emergency action un- National Science Foundation has dertaken shall also be provided to the adopted the following statement of Department of State for appropriate NSF patent policy. circulation within ninety days of the (a) In accordance with the Bayh-Dole action. Act and the Presidential Memorandum entitled ‘‘Government Patent Policy’’ PART 650—PATENTS issued February 18, 1983, the Founda- tion will use the Patent Rights clause Sec. prescribed by the Department of Com- 650.1 Scope of part. merce in all its funding agreements for 650.2 National Science Foundation patent the performance of experimental, de- policy. 650.3 Source of authority. velopmental, or research work, includ- 650.4 Standard patent rights clause. ing awards made to foreign entities, 650.5 Special patent provisions. unless the Foundation determines that 650.6 Awards not primarily for research. some other provision would better 650.7 Awards affected by international serve the purposes of that Act or the agreements. interests of the United States and the 650.8 Retention of rights by inventor. general public. 650.9 Unwanted inventions. 650.10 Inventions also supported by another (b) In funding agreements covered by Federal agency. a treaty or agreement that provides 650.11 Utilization reports. that an international organization or 650.12 Waivers and approvals. foreign government, research institute, 650.13 Exercise of march-in rights. or inventor will own or share patent 650.14 Request for conveyance of title to rights, the Foundation will acquire NSF. 650.15 Appeals. such patent rights as are necessary to 650.16 Background rights. comply with the applicable treaty or 650.17 Subcontracts. agreement. 650.18 Delegation of authority. (c) If an awardee elects not to retain 650.19 Electronic invention handling. rights to an invention, the Foundation APPENDIX A TO PART 650—OPTIONAL FORMAT will allow the inventor to retain the FOR CONFIRMATORY LICENSE principal patent rights unless the AUTHORITY: 35 U.S.C. 200–212, 42 U.S.C. awardee, or the inventor’s employer if 1870(e) and 1871; and the Presidential Memo- other than the awardee, shows that it randum entitled ‘‘Government Patent Pol- would be harmed by that action. icy’’, issued February 18, 1983. (d) The Foundation will normally SOURCE: 57 FR 18053, Apr. 28, 1992, unless allow any patent rights not wanted by otherwise noted. the awardee or inventor to be dedicated to the public through publication in § 650.1 Scope of part. scientific journals or as a statutory in- This part contains the policies, pro- vention registration. However, if an- cedures, and clauses that govern allo- other Federal agency is known to be cation of rights to inventions made in interested in the relevant technology, performance of NSF-assisted research. the Foundation may give it an oppor- It applies to all current and future tunity to review and patent the inven- funding agreements entered into by the tion so long as that does not inhibit

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the dissemination of the research re- that relates to scientific or engineering sults to the scientific community. research unless a special patent clause has been negotiated (see § 650.5). § 650.3 Source of authority. PATENT RIGHTS (AUGUST, 2005) (a) 35 U.S.C. 200–212, commonly called the Bayh-Dole Act, as amended by title (a) Definitions—(1) Invention means any in- V of Public Law 98–620 (98 stat. 3335, vention or discovery which is or may be pat- 3364). That law controls the allocation entable or otherwise protectable under title 35 of the United States Code, to any novel of rights to inventions made by em- variety of plant which is or may be protected ployees of small business firms and do- under the Plant Variety Protection Act (7 mestic nonprofit organizations, includ- U.S.C. 2321 et seq.). ing universities, during federally-sup- (2) Subject invention means any invention of ported experimentation, research, or the grantee conceived or first actually re- development. Government-wide imple- duced to practice in the performance of work menting regulations are contained in under this grant, provided that in the case of part 401 of title 37 of the Code of Fed- a variety of plant, the date of determination (as defined in section 41(d) of the Plant Vari- eral Regulations. ety Protection Act (7 U.S.C. 2401(d)) must (b) Section 11(e) of the National also occur during the period of grant per- Science Foundation Act of 1950, as formance. amended, (42 U.S.C. 1870(e)) provides (3) Practical application means to manufac- that the Foundation shall have the au- ture in the case of a composition or product, thority to do all things necessary to to practice in the case of a process or meth- carry out the provisions of this Act, in- od, or to operate in the case of a machine or cluding, but without being limited system; and, in each case, under such conditions as to establish that the invention is thereto, the authority—to acquire by being utilized and that its benefits are to the purchase, lease, loan, gift, or con- extent permitted by law or Government reg- demnation, and to hold and dispose of ulations available to the public on reason- by grant, sale, lease, or loan, real and able terms. personal property of all kinds nec- (4) Made when used in relation to any in- essary for, or resulting from, the exer- vention means the conception or first actual cise of authority granted by this Act. reduction to practice of such invention. (c) Section 12 of the NSF Act (42 (5) Small business firm means a domestic small business concern as defined at section U.S.C. 1871) provides that each contract 2 of Public Law 85–536 (15 U.S.C. 632) and im- or other arrangement executed pursu- plementing regulations of the Administrator ant to this Act which relates to sci- of the Small Business Administration. For entific research shall contain provi- the purpose of this Patents Rights clause, sions governing the disposition of in- the size standard for small business concerns ventions produced thereunder in a involved in Government procurement and manner calculated to protect the pub- subcontracting at 13 CFR 121.3–8 and 13 CFR 121.3–12, respectively, will be used. lic interest and the equities of the indi- (6) Nonprofit organization means a domestic vidual or organization with which the university or other institution of higher edu- contract or other arrangement is exe- cation or an organization of the type de- cuted. scribed in section 501(c)(3) of the Internal (d) The Presidential Memorandum Revenue Code of 1954 (26 U.S.C. 501(c)) and entitled ‘‘Government Patent Policy’’ exempt from taxation under section 501(a) of issued February 18, 1983, directs Fed- the Internal Revenue Code (26 U.S.C. 501(a)) eral agencies, to the extent permitted or any domestic nonprofit scientific or edu- by law, to apply to all research per- cational organization qualified under a State nonprofit organization statute. formers the policies of the Bayh-Dole (b) Allocation of Principal Rights. The grant- Act. Under the provisions of the Na- ee may retain the entire right, title, and in- tional Science Foundation Act quoted terest throughout the world to each subject above, the Foundation is permitted to invention subject to the provisions of this apply the Bayh-Dole policies without Patents Rights clause and 35 U.S.C. 203. With restriction. respect to any subject invention in which the grantee retains title, the Federal Govern- § 650.4 Standard patent rights clause. ment shall have a nonexclusive, nontransferable, irrevocable, paid-up license to practice (a) The following Patent Rights or have practiced for or on behalf of the clause will be used in every funding United States the subject invention through- agreement awarded by the Foundation out the world. If the award indicates it is

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subject to an identified international agree- (d) Conditions When the Government May ment or treaty, the National Science Foun- Obtain Title. The grantee will convey to NSF, dation (NSF) also has the right to direct the upon written request, title to any subject in- grantee to convey to any foreign participant vention: such patent rights to subject inventions as (1) If the grantee fails to disclose or elect are required to comply with that agreement the subject invention within the times speci- or treaty. fied in paragraph (c) above, or elects not to (c) Invention Disclosure, Election of Title and retain title; provided that NSF may only re- Filing of Patent Applications by Grantee. (1) quest title within 60 days after learning of The grantee will disclose each subject inven- the failure of the grantee to disclose or elect tion to NSF within two months after the in- within the specified times. ventor discloses it in writing to grantee per- (2) In those countries in which the grantee sonnel responsible for the administration of fails to file patent applications within the patent matters. The disclosure to NSF will times specified in paragraph (c) above; pro- be submitted via the iEdison Invention Infor- vided, however, that if the grantee has filed mation Management System maintained by a patent application in a country after the the National Institutes of Health and shall times specified in paragraph (c) above, but identify the grant under which the invention prior to its receipt of the written request of was made and the inventor(s). It shall be suf- NSF, the grantee shall continue to retain ficiently complete in technical detail to con- title in that country. vey a clear understanding of the nature, pur- (3) In any country in which the grantee depose, operation, and, to the extent known, cides not to continue the prosecution of any the physical, chemical, biological or elec- application for, to pay the maintenance fees trical characteristics of the invention. The on, or defend in a reexamination or opposi- disclosure shall also identify any publication proceeding on, a patent on a subject in- tion, on sale or public use of the invention vention. and whether a manuscript describing the in- (e) Minimum Rights to Grantee. (1) The vention has been submitted for publication grantee will retain a nonexclusive royalty- and, if so, whether it has been accepted for free license throughout the world in each publication at the time of disclosure. In ad- subject invention to which the Government dition, after disclosure to NSF, the grantee obtains title, except if the grantee fails to will promptly notify NSF of the acceptance disclose the subject invention within the of any manuscript describing the invention times specified in paragraph (c) above. The for publication or of any on sale or public grantee’s license extends to its domestic sub- use planned by the grantee. sidiaries and affiliates, if any, within the (2) The grantee will elect in writing wheth- corporate structure of which the grantee is a er or not to retain title to any such inven- party and includes the right to grant sub- tion by notifying NSF within two years of licenses of the same scope to the extent the disclosure to NSF. However, in any case grantee was legally obligated to do so at the where publication, on sale, or public use has time the grant was awarded. The license is initiated the one year statutory period transferable only with the approval of NSF wherein valid patent protection can still be except when transferred to the successor of obtained in the United States, the period for that part of the grantee’s business to which election of title may be shortened by NSF to the invention pertains. a date that is no more than 60 days prior to (2) The grantee’s domestic license may be the end of the statutory period. revoked or modified by NSF to the extent (3) The grantee will file its initial patent necessary to achieve expeditious practical application on an invention to which it application of the subject invention pursuant elects to retain title within one year after to an application for an exclusive license election of title or, if earlier, prior to the end submitted in accordance with applicable proof any statutory period wherein valid patent visions at 37 CFR part 404. This license will protection can be obtained in the United not be revoked in that field of use or the geo- States after a publication, on sale, or public graphical areas in which the grantee has use. The grantee will file patent applications achieved practical application and continues in additional countries or international pat- to make the benefits of the invention reason- ent offices within either ten months of the ably accessible to the public. The license in corresponding initial patent application, or any foreign country may be revoked or modi- six months from the date when permission is fied at the discretion of NSF to the extent granted by the Commissioner of Patents and the grantee, its licensees, or its domestic Trademarks to file foreign patent applica- subsidiaries or affiliates have failed to tions when such filing has been prohibited by achieve practical application in that foreign a Secrecy Order. country. (4) Requests for extension of the time for (3) Before revocation or modification of the disclosure to NSF, election, and filing under license, NSF will furnish the grantee a writ- subparagraphs (c) (1), (2), and (3) of this ten notice of its intention to revoke or mod- clause may, at the discretion of NSF, be ify the license, and the grantee will be al- granted. lowed thirty days (or such other time as may

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be authorized by NSF for good cause shown ment and the page of a United States patent by the grantee) after the notice to show application that contains the Federal sup- cause why the license should not be revoked port clause within two months of filing any or modified. The grantee has the right to ap- domestic or foreign patent application. peal, in accordance with applicable regula- (g) Subcontracts. (1) The grantee will in- tions in 37 CFR part 404 concerning the li- clude this Patents Rights clause, suitably censing of Government-owned inventions, modified to identify the parties, in all sub- any decision concerning the revocation or contracts, regardless of tier, for experi- modification of its license. mental, developmental, or research work. (f) Grantee Action to Protect Government’s In- The subcontractor will retain all rights pro- terest. (1) The grantee agrees to execute or to vided for the grantee in this Patents Rights have executed and promptly deliver to NSF clause, and the grantee will not, as part of all instruments necessary to: the consideration for awarding the sub- (i) Establish or confirm the rights the Gov- contract, obtain rights in the subcontrac- ernment has throughout the world in those tor’s subject inventions. subject inventions for which the grantee re- (2) In the case of subcontracts, at any tier, tains title, and when the prime award by the Foundation (ii) Convey title to NSF when requested was a contract (but not a grant or coopera- under paragraph (d) above, and to enable the tive agreement), NSF, subcontractor, and Government to obtain patent protection contractor agree that the mutual obligations throughout the world in that subject inven- of the parties created by this Patents Rights tion. clause constitute a contract between the (2) The grantee agrees to require, by writ- subcontractor and the Foundation with reten agreement, its employees, other than spect to those matters covered by this Pat- clerical and non-technical employees, to dis- ents Rights clause. close promptly in writing to personnel iden- (h) Reporting on Utilization of Subject Inven- tified as responsible for the administration tions. The grantee agrees to submit on re- of patent matters and in a format suggested quest periodic reports no more frequently by the grantee each subject invention made than annually on the utilization of a subject under this grant in order that the grantee invention or on efforts at obtaining such uti- can comply with the disclosure provisions of lization that are being made by the grantee paragraph (c) above, and to execute all pa- or its licensees or assignees. Such reports pers necessary to file patent applications on shall include information regarding the sta- subject inventions and to establish the Gov- tus of development, date of first commercial ernment’s rights in the subject inventions. sale or use, gross royalties received by the The disclosure format should require, at a grantee, and such other data and informa- minimum, the information requested by tion as NSF may reasonably specify. The paragraph (c)(1) above. The grantee shall in- grantee also agrees to provide additional re- struct such employees through the employee ports in connection with any march-in pro- agreements or other suitable educational ceeding undertaken by NSF in accordance programs on the importance of reporting in- with paragraph (j) of this Patents Rights ventions in sufficient time to permit the fil- clause. As required by 35 U.S.C. 202(c)(5), ing of patent applications prior to U.S. or NSF agrees it will not disclose such informa- foreign statutory bars. tion to persons outside the Government (3) The grantee will notify NSF of any de- without the permission of the grantee. cision not to continue prosecution of a pat- (i) Preference for United States Industry. ent application, pay maintenance fees, or de- Notwithstanding any other provision of this fend in a reexamination or opposition pro- Patents Rights clause, the grantee agrees ceeding on a patent, in any country, not less that neither it nor any assignee will grant to than thirty days before the expiration of the any person the exclusive right to use or sell response period required by the relevant pat- any subject invention in the United States ent office. unless such person agrees that any products (4) The grantee agrees to include, within embodying the subject invention or produced the specification of any United States patent through the use of the subject invention will application and any patent issuing thereon be manufactured substantially in the United covering a subject invention, the following States. However, in individual cases, the re- statement: ‘‘This invention was made with quirement for such an agreement may be Government support under (identify the waived by NSF upon a showing by the grant- grant) awarded by the National Science ee or its assignee that reasonable but unsuc- Foundation. The Government has certain cessful efforts have been made to grant li- rights in this invention.’’ censes on similar terms to potential licens- (5) The grantee or its representative will ees that would be likely to manufacture sub- complete, execute, and submit electronically stantially in the United States or that under to NSF via the iEdison Invention Informa- the circumstances domestic manufacture is tion Management System maintained by the not commercially feasible. National Institutes of Health a confirmation (j) March-in Rights. The grantee agrees that of a License to the United States Govern- with respect to any subject invention in

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which it has acquired title, NSF has the the invention to practical application as any right in accordance with procedures at 37 plans or proposals from applicants that are CFR 401.6 and NSF regulations at 45 CFR not small business firms; provided that the 650.13 to require the grantee, an assignee or grantee is also satisfied that the small busi- exclusive licensee of a subject invention to ness firm has the capability and resources to grant a nonexclusive, partially exclusive, or carry out it plan or proposal. The decision exclusive license in any field of use to a re- whether to give a preference in any specific sponsible applicant or applicants, upon case will be at the discretion of the grantee. terms that are reasonable under the cir- However, the grantee agrees that the Sec- cumstances, and if the grantee, assignee, or retary of Commerce may review the grant- exclusive licensee refuses such a request, ee’s licensing program and decisions regard- NSF has the right to grant such a license ing small business applicants, and the grant- itself if NSF determines that: ee will negotiate changes to its licensing (1) Such action is necessary because the policies, procedures, or practices with the grantee or assignee has not taken, or is not Secretary when the Secretary’s review dis- expected to take within a reasonable time, closes that the grantee could take reason- effective steps to achieve practical applica- able steps to implement more effectively the tion of the subject invention in such field of requirements of this paragraph (k)(4). use; (1) Communications. All communications re- (2) Such action is necessary to alleviate quired by this Patents Rights clause must be health or safety needs which are not reason- submitted through the iEdison Invention In- ably satisfied by the grantee, assignee, or formation Management System maintained their licensees; by the National Institutes of Health unless (3) Such action is necessary to meet re- prior permission for another form of submis- quirements for public use specified by Fed- sion is obtained from the Patent Assistant at eral regulations and such requirements are [email protected] or at Office of the General not reasonably satisfied by the grantee, as- Counsel, National Science Foundation, 4201 signee, or licensee; or Wilson Boulevard, Arlington, VA 22230. (4) Such action is necessary because the agreement required by paragraph (i) of this (b) When the above Patent Rights Patents Rights clause has not been obtained clause is used in a funding agreement or waived or because a licensee of the exclu- other than a grant, ‘‘grant’’ and sive right to use or sell any subject inven- ‘‘grantee’’ may be replaced by ‘‘con- tion in the United States is in breach of such agreement. tract’’ and ‘‘contractor’’ or other ap- (k) Special Provisions for Grants with Non- propriate terms. profit Organizations. If the grantee is a non- (Approved by the Office of Management and profit organization, it agrees that: Budget under control number 3145–0084) (1) Rights to a subject invention in the United States may not be assigned without [57 FR 18053, Apr. 28, 1992, as amended at 59 the approval of NSF, except where such as- FR 37438, July 22, 1994; 62 FR 49938, Sept. 24, signment is made to an organization which 1997; 70 FR 43071, July 26, 2005] has as one of its primary functions the management of inventions, provided that such § 650.5 Special patent provisions. assignee will be subject to the same provisions as the grantee; At the request of the prospective (2) The grantee will share royalties col- awardee or on recommendation from lected on a subject invention with the inven- NSF staff, a Grants or Contracts Offi- tor, including Federal employee co-inventors cer, with the concurrence of the cog- (when NSF deems it appropriate) when the nizant Program Manager, may nego- subject invention is assigned in accordance tiate special patent provisions when he with 35 U.S.C. 202(e) and 37 CFR 401.10; or she determines that exceptional cir- (3) The balance of any royalties or income cumstances require restriction or earned by the grantee with respect to subject inventions, after payment of expenses (in- elimination of the right of a prospec- cluding payments to inventors) incidental to tive awardee to retain title to any sub- the administration of subject inventions, ject invention in order to better pro- will be utilized for the support of scientific mote the policy and objectives of chap- research or education; and ter 18 of title 35 of the United States (4) It will make efforts that are reasonable Code or the National Science Founda- under the circumstances to attract licensees tion Act. The Grants or Contracts Offi- of subject inventions that are small business cer will prepare the written determina- firms and that it will give preference to a small business firm if the grantee deter- tion required by § 401.3(e) of title 37 of mines that the small business firm has a the Code of Federal Regulations and plan or proposal for marketing the invention assure that appropriate reports are which, if executed, is equally likely to bring made to the Secretary of Commerce

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and Chief Counsel for Advocacy of the provide that the Foundation may re- Small Business Administration as require the grantee to transfer to a for- quired in § 401.3(f). Unless doing so eign government or research performer would be inconsistent with an obliga- such rights in any subject invention as tion imposed on the Foundation by are contemplated in the international statute, international agreement, or agreement. The award instrument will pact with other participants in or sup- identify the applicable agreement or porters of the research, every special treaty. patent provision will allow the award- (b) After an invention is disclosed to ee, after an invention has been made, the Patent Assistant, the recipient of to request that it be allowed to retain an award subject to an international principal rights to that invention agreement will be informed as to what under § 650.12(e) of this regulation. rights, if any, it must transfer to foreign participants. Recipients may also § 650.6 Awards not primarily for re- ask the Program Manager to provide search. them with copies of the identified (a) Awards not primarily intended to international agreements before or support scientific or engineering re- after accepting an award. search need contain no patent provision. Examples of such awards are trav- § 650.8 Retention of rights by inventor. el and conference grants. If an awardee elects not to retain (b) NSF fellowships and traineeships rights to an invention, the inventor are primarily intended to support edu- may request the NSF Patent Assistant cation or training, not particular refor permission to retain principal pat- search. Therefore, in accordance with ent rights. Such requests should be section 212 of title 35 of the United made as soon as possible after the States Code, the Foundation claims no awardee notifies the Patent Assistant rights to inventions made by fellows or that it does not want to patent the in- trainees. The following provision will vention. Such requests will normally be included in each fellowship or be granted unless either the awardee or traineeship program announcement the employer of the inventor shows and made part of the award: that it would be harmed by that action. As required by § 401.9 of the imple- INTELLECTUAL PROPERTY RIGHTS menting regulations for the Bayh-Dole The National Science Foundation claims Act (37 CFR 401.9), the inventor will be no rights to any inventions or writings that subject to the same conditions that the might result from its fellowship or awardee would have been, except that traineeship awards. However, fellows and the special restrictions imposed on trainees should be aware that the NSF, an- nonprofit organizations will not apply other Federal agency, or some private party to the inventor. may acquire such rights through other support for particular research. Also, fellows § 650.9 Unwanted inventions. and trainees should note their obligation to include an Acknowledgment and Disclaimer (a) The Foundation will normally in any publication. allow any patent rights not wanted by the awardee or inventor to be dedicated § 650.7 Awards affected by inter- to the public through publication in national agreements. scientific and engineering journals or (a) Some NSF awards are made as as a statutory invention registration part of international cooperative re- under section 157 of title 35 of the search programs. The agreements or United States Code. Except as provided treaties underlying many of these pro- in paragraph (b) of this section, the grams require an allocation of patent NSF Patent Assistant will acknowl- rights different from that provided by edge a negative election by encour- the Patent Rights clause in § 650.4(a). aging the awardee and inventor to Therefore, as permitted by § 401.5(d) of promptly make all research results the implementing regulations for the available to the scientific and engi- Bayh-Dole Act (37 CFR 401.5(d)), para- neering community. graph (b) of the standard Patent Rights (b) If the NSF Patent Assistant be- clause in § 650.4(a) has been modified to lieves that another Federal agency is

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interested in the relevant technology, requirements if such are ever estab- he or she may, after receiving the lished. awardee’s election not to patent and [57 FR 18053, Apr. 28, 1992, as amended at 59 ascertaining that the inventor also FR 37438, July 22, 1994] does not want to patent, send a copy of the invention disclosure to that agency § 650.12 Waivers and approvals. to give it an opportunity to review and (a) Requests for extension of time to patent the invention. Unless the agen- disclose to the NSF Patent Assistant, cy expresses an interest in the inven- make an election to retain title to, or tion within thirty days, the Patent As- file a patent on a subject invention will sistant will acknowledge the awardee’s be granted by the NSF Patent Assist- negative election by encouraging ant unless he or she determines that prompt publication of all research re- such an extension would either imperil sults. If the agency does express an in- the securing of valid patent protection terest in patenting the invention, the or unacceptably restrict the publica- Patent Assistant will transfer to it all tion of the results of the NSF-sup- rights to the invention. ported research. (b) Approval of assignments by non- § 650.10 Inventions also supported by profit organizations (required by sub- another Federal Agency. paragraph (k)(1) of the Patent Rights clause in § 650.4(a)) will be given by the Section 401.13(a) of the implementing Patent Assistant unless he or she de- regulation for the Bayh-Dole Act (37 termines that the interests of the CFR 401.13(a)) provides that in the United States Government will be ad- event that an invention is made under versely affected by such assignment. funding agreements of more than one (c) Approval of long-term exclusive federal agency, the agencies involved licensing of NSF-assisted inventions by will, at the request of the grantee or nonprofit organizations (restricted by contractor or on their own initiative, earlier versions of the NSF Patents designate one agency to be responsible Rights clause and by pre-Bayh-Dole In- for the administration of the inven- stitutional Patent Agreements and tion. Whenever the NSF Patent Assist- waiver conditions) will be given by the ant finds that another agency also sup- Patent Assistant unless he or she de- ported an NSF subject invention, he or termines that the interests of the she will consult with the grantee or United States Government will be ad- contractor and appropriate personnel versely affected by such waiver. in the other agency to determine if a (d) The preference for United States single agency should be designated to industry imposed by paragraph (i) of administer the Government’s rights in the Patent Rights clause in § 650.4(a) the invention. The Patent Assistant may be waived by the NSF Patent As- may transfer to, or accept from, any sistant as provided in that paragraph. other Federal agency, responsibility (e) Special restrictions on or limita- for administering a jointly-supported tion of the right of an awardee to retain title to subject inventions imposed invention. under § 650.5 of this regulation may be § 650.11 Utilization reports. waived by the Grants or Contracting Officer whenever he or she determines, Paragraph (h) of the standard Patent after consultation with the cognizant Rights clause set forth in § 650.4 obliges Program Manager, that the reasons for grantees ‘‘to submit on request peri- imposing the restrictions or limita- odic reports no more frequently than tions do not require their application annually on the utilization of a subject to a particular invention. invention or on efforts at obtaining (f) Requests for approvals and waiver such utilization’’. At this time, the under this section should be addressed Foundation does not plan to request to the NSF Patent Assistant as pro- such reports except in connection with vided in paragraph (1) of the Patent march-in investigations conducted Rights clause in § 650.4(a). Requests under § 650.13. This section will be under paragraph (a) of this section for amended to describe periodic reporting extensions of time to disclose, elect, or

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file may be made by telephone or elec- proceeding by issuing a written notice tronic mail as well as in writing. A to the patent holder. That notice will written request for extension of time provide all the information required by to disclose, elect, or file can be as- § 401.6(c) of the implementing regula- sumed to have been approved unless tion. The patent holder may submit in- the Patent Assistant replies negatively formation and argument in opposition within ten business days of the date to the proposed march-in in person, in such request was mailed, telecopied, or writing, or through a representative. otherwise dispatched. Requests for ap- (d) If the NSF Patent Assistant de- provals or waivers under paragraphs termines that a genuine dispute over (b), (c), (d), and (e) of this section must material facts exists, he or she will be in writing and should explain why identify the disputed facts and notify an approval or waiver is justified under the NSF General Counsel. The General the stated criteria. The requester will Counsel will create a cross-directorate be given a written explanation of the fact-finding panel, which will establish reasons for denial of a request covered its own fact-finding procedures within by this section. the requirements of § 401.6(e) of the implementing regulation based on the di- § 650.13 Exercise of march-in rights. mensions of the particular dispute. The (a) The procedures established by Patent Assistant will serve as sec- this section supplement those pre- retary to the panel, but will not take scribed by § 401.6 of the implementing part in its deliberations. Written find- regulation for the Bayh-Dole Act (37 ings of facts will be submitted to the CFR § 401.6) and apply to all march-in General Counsel, sent by certified mail rights held by NSF including those re- to the patent holder, and made avail- sulting from funding agreements not able to all other interested parties. covered by the Bayh-Dole Act. (e) The NSF General Counsel will de- (b) Petitions requesting that the NSF termine whether and how the Founda- exercise a march-in right should be ad- tion should exercise a march-in right dressed to the NSF Patent Assistant. as provided in § 401.6(g) of the imple- Such petitions should: menting regulation. (1) Identify the patent or patent application involved and the relevant § 650.14 Request for conveyance of fields of use of the invention; title to NSF. (2) State the grounds for the proposed march-in; (a) The procedures established by (3) Supply evidence that one or more this section apply to the exercise of the of the four conditions creating a Foundation’s right under paragraph (d) march-in right (lack of practical appli- of the Patent Rights clause in § 650.4(a) cation, unsatisfied health or safety to request conveyance of title to a sub- needs, unmet requirements for public ject invention if certain conditions use, or failure to prefer United States exist. industry) is present; and (b) The NSF Patent Assistant may (4) Explain what action by the Foun- request the recipient of an NSF award dation is necessary to correct that con- to convey to the Foundation or a des- dition. ignee title in one or more countries to (c) If evidence received from a peti- any invention to which the awardee tioner or from the Foundation’s admin- has elected not to retain title. The istration of the Patent Rights clause NSF Patent Assistant may request im- indicates that one or more of the four mediate conveyance of title to a sub- conditions creating a march-in right ject invention if the awardee fails (1) to might exist, the NSF Patent Assistant submit a timely invention disclosure, will informally review the matter as (2) to make a timely election to retain provided in § 401.6(b) of the imple- patent rights, or (3) to file a timely menting regulation. If that informal patent application; but only if he or review indicates that one or more of she determines that such action is re- the four conditions creating a march-in quired to preserve patent rights. right probably exists, the Patent As- (c) The NSF Patent Assistant will in- sistant will initiate a formal march-in formally review any apparent failure

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by an awardee to comply with the repetition, the General Counsel’s deci- quirements of paragraph (c) of the Pat- sion not to exercise a march-in right or ent Rights clause in § 650.4(a). The in- to exercise it in a manner different terested institution, the inventor, the from that requested in the petition patent holder, and any other interested may be appealed by the petitioner to party will be given an opportunity to the NSF Deputy Director within thirty explain why a particular invention was days. not disclosed, why an election was not (d) In reviewing the actions of the made, or why a patent application was NSF Patent Assistant, a Grants and not filed. If the Patent Assistant deter- Agreements Officer, a Contracting Offi- mines that a genuine dispute over ma- cer, or the General Counsel, the CPO terial facts exists, a cross-directorate Director or NSF Deputy Director will fact-finding panel will be appointed by consider both the factual and legal the General Counsel. The panel will es- basis for the action or determination tablish its own fact-finding procedures and its consistency with the policies based on the dimensions of the par- and objectives of the Foundation and, ticular dispute. Written findings of if applicable, the Bayh-Dole Act (35 facts will be submitted to the General U.S.C. 200–212) and implementing regu- Counsel, sent by certified mail to the lations at part 401 of title 37 of the patent holder, and made available to Code of Federal Regulations. all other interested parties. [57 FR 18053, Apr. 28, 1992, as amended at 61 (d) The NSF General Counsel will de- FR 51022, Sept. 30, 1996] termine whether the Foundation should request conveyance of title or if § 650.16 Background rights. it should retain title obtained under The Foundation will acquire rights § 650.14(b). to a research performer’s pre-existing technology only in exceptional cir- § 650.15 Appeals. cumstances where, due to the nature of (a) All actions by the NSF Patent As- the research being supported, the sistant under § 650.8 denying an inven- Foundation requires greater control tor’s request to retain rights to a sub- over resulting inventions. The NSF ject invention, under § 650.12 denying a Grants or Contracts Officer, with con- request for waiver, or under § 650.14(d) currence of the cognizant Program denying the existence of a material dis- Manager, will negotiate a background pute may be appealed to the Director rights provision. If the affected award- of the NSF Division of Grants and Con- ee is a small business firm or nonprofit tracts by an affected party within thir- organization, the provision will con- ty days. A request under § 650.14(b) to form to the requirements of the Bayh- immediately convey title to the Foun- Dole Act (35 U.S.C. 202(f)) as imple- dation may be appealed to the DGC Di- mented by 37 CFR 401.12). rector by the title holder within five days. § 650.17 Subcontracts. (b) All actions by a Grants and As provided in paragraph (g) of the Agreements Officer or Contracting Of- Patent Rights clause in § 650.4(a), ficer refusing to eliminate restrictions awardees should normally use that on or limitation of the right of an clause in all subcontracts. At the re- awardee to retain title to subject in- quest of the awardee or subcontractor ventions imposed under § 650.5 of this or on recommendation from NSF staff, regulation may be appealed to the Di- the cognizant Grants or Contracts Offi- rector of the NSF Division of Con- cer may direct the awardee to insert tracts, Policy, and Oversight (CPO) by into subcontracts relating to scientific an affected party within thirty days. research a special patent provision ne- (c) A decision by the General Counsel gotiated under § 650.5. to exercise a march-in right or to request conveyance of title may be ap- § 650.18 Delegation of authority. pealed by the patent holder or any af- The General Counsel is responsible fected licensee to the NSF Deputy Di- for implementing this regulation and is rector within thirty days. When a authorized to make any exceptions to march-in was initiated in response to a or extensions of the NSF Patent Policy

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as may be required by particular cir- (grant or contract number) cumstances. The General Counsel will (grantee or contractor). designate the NSF Patent Assistant Principal rights to this subject invention and that individual is authorized to have been left with the licensor. carry out the functions assigned by Signed: lllllllllllllllllll this regulation. Name: llllllllllllllllllll § 650.19 Electronic invention handling. Title: llllllllllllllllllll (a) Grantees must use the iEdison In- Date: llllllllllllllllllll vention Information Management Sys- Accepted on behalf of the Government: tem maintained by the National Insti- tutes of Health to disclose NSF subject NSF Patent Assistant inventions. Detailed instructions for use of that system are provided at Date: llllllllllllllllllll http://s-edison.info.nih.gov/iEdison/ and should be followed for NSF subject in- PART 660—INTERGOVERNMENTAL ventions except that: REVIEW OF THE NATIONAL (1) All communications required SCIENCE FOUNDATION PRO- must be provided electronically as a PDF or TIFF file through iEdison un- GRAMS AND ACTIVITIES less prior permission for another form of submission is obtained from the Pat- Sec. ent Assistant. 660.1 What is the purpose of these regula- (2) NSF does not require either an tions? Annual Utilization Report or a Final 660.2 What definitions apply to these regulations? Invention Statement and Certification. 660.3 What programs and activities of the (b) Questions on use of iEdison and Foundation are subject to these regula- requests for permission to submit ma- tions? terial in other forms may be sent to 660.4 [Reserved] the NSF Patent Assistant at 660.5 What is the Director’s obligation with [email protected] or at Office of the Gen- respect to Federal interagency coordina- eral Counsel, National Science Founda- tion? tion, 4201 Wilson Boulevard, Arlington, 660.6 What procedures apply to the selection VA 22230. of programs and activities under these regulations? [70 FR 43071, July 26, 2005] 660.7 How does the Director communicate with state and local officials concerning APPENDIX A TO PART 650—OPTIONAL the Foundation’s programs and activi- FORMAT FOR CONFIRMATORY LICENSE ties? The following format may be used for the 660.8 How does the Director provide states confirmatory license to the Government re- an opportunity to comment on proposed quired by subparagraph (f)(5) of the Patent Federal financial assistance and direct Rights clause in § 650.4(a). Any equivalent in- Federal development? strument may also be used. 660.9 How does the Director receive and respond to comments? LICENSE TO THE UNITED STATES GOVERNMENT 660.10 How does the Director make efforts This instrument confirms to the United to accommodate intergovernmental con- States Government, as represented by the cerns? National Science Foundation, an irrev- 660.11 What are the Director’s obligations in ocable, nonexclusive, nontransferable, roy- interstate situations? alty-free license to practice or have prac- 660.12 [Reserved] ticed on its behalf throughout the world the 660.13 May the Director waive any provision following subject invention: of these regulations? (invention title) AUTHORITY: E.O. 12372, July 14, 1982 (47 FR (inventor[s] name[s]) 30959), as amended Apr. 8, 1983 (48 FR 15887); (patent application number and filing date) and sec. 401 of the Intergovernmental Co- (country, if other than United States) operation Act of 1968 and as amended (31 (NSF Disclosure No.). U.S.C. 6506). This subject invention was made with NSF SOURCE: 48 FR 29365, June 24, 1983, unless support through: otherwise noted.

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§ 660.1 What is the purpose of these § 660.4 [Reserved] regulations? § 660.5 What is the Director’s obliga- (a) The regulations in this part im- tion with respect to Federal inter- plement Executive Order 12372, ‘‘Inter- agency coordination? governmental Review of Federal Pro- The Director, to the extent prac- grams,’’ issued July 14, 1982 and amend- ticable, consults with and seeks advice ed on April 8, 1983. These regulations from all other substantially affected also implement applicable provisions of Federal departments and agencies in section 401 of the Intergovernmental an effort to assure full coordination be- Cooperation Act of 1968. tween such agencies and the Founda- (b) These regulations are intended to tion regarding programs and activities foster an intergovernmental partner- covered under these regulations. ship and a strengthened Federalism by relying on state processes and on state, § 660.6 What procedures apply to the areawide, regional and local coordina- selection of programs and activities tion for review of proposed Federal fi- under these regulations? nancial assistance and direct Federal (a) A state may select any program development. or activity published in the FEDERAL (c) These regulations are intended to REGISTER in accordance with § 660.3 of aid the internal management of the this part for intergovernmental review Foundation, and are not intended to under these regulations. Each state, create any right or benefit enforceable before selecting programs and activi- at law by a party against the Founda- ties, shall consult with local elected officials. tion or its officers. (b) Each state that adopts a process § 660.2 What definitions apply to these shall notify the Director of the Foun- regulations? dation’s programs and activities selected for that process. Foundation means the National (c) A state may notify the Director of Science Foundation. changes in its selections at any time. Order means Executive Order 12372, For each change, the state shall submit issued July 14, 1982, and amended April to the Director an assurance that the 8, 1983 and titled ‘‘Intergovernmental state has consulted with elected local Review of Federal Programs.’’ elected officials regarding the change. Director means the Director of the The Foundation may establish dead- National Science Foundation or an of- lines by which states are required to ficial or employee of the Foundation inform the Director of changes in their acting for the Director under a delega- program selections. tion of authority. (d) The Director uses a state’s proc- State means any of the 50 states, the ess as soon as feasible, depending on in- District of Columbia, the Common- dividual programs and activities, after wealth of Puerto Rico, the Common- the Director is notified of its selec- wealth of the Northern Mariana Is- tions. lands, Guam, American Samoa, the § 660.7 How does the Director commu- U.S. Virgin Islands, or the Trust Terri- nicate with state and local officials tory of the Pacific Islands. concerning the Foundation’s programs and activities? § 660.3 What programs and activities (a) For those programs and activities of the Foundation are subject to these regulations? covered by a state process under § 660.6, the Director, to the extent permitted The Director publishes in the FED- by law: ERAL REGISTER a list of the Founda- (1) Uses the state process to deter- tion’s programs and activities that are mine views of state and local elected subject to these regulations. officials; and (2) Communicates with state and local elected officials, through the state process, as early in a program

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planning cycle as is reasonably feasible from state, areawide, regional or local to explain specific plans and actions. officials and entities where there is no (b) The Director provides notice to state process recommendation. directly affected state, areawide, re- (2) If a state process recommendation gional, and local entities in a state of is transmitted by a single point of con- proposed Federal financial assistance tact, all comments from state, or direct Federal development if: areawide, regional, and local officials (1) The state has not adopted a proc- and entities that differ from it must ess under the Order; or also be transmitted. (2) The assistance or development in- (c) If a state has not established a volves a program or activity not se- process, or is unable to submit a state lected for the state process. process recommendation, state, This notice may be made by publica- areawide, regional and local officials tion in the FEDERAL REGISTER or other and entities may submit comments ei- appropriate means, which the Founda- ther to the applicant or to the Founda- tion in its discretion deems appro- tion. priate. (d) If a program or activity is not se- § 660.8 How does the Director provide lected for a state process, state, states an opportunity to comment areawide, regional and local officials on proposed Federal financial as- and entities may submit comments ei- sistance and direct Federal devel- ther to the applicant or to the Founda- opment? tion. In addition, if a state process rec- (a) Except in unusual circumstances, ommendation for a nonselected pro- the Director gives state processes or di- gram or activity is transmitted to the rectly affected state, areawide, re- Foundation by the single point of con- gional and local officials and entities: tact, the Director follows the proce- (1) At least 30 days from the date es- dures of § 660.10 of this part. tablished by the Director to comment (e) The Director considers comments on proposed Federal financial assist- which do not constitute a state process ance in covered programs (i.e., those recommendation submitted under referenced in § 660.3) in the form of con- these regulations and for which the Di- tinuation awards that are not peer re- rector is not required to apply the pro- viewed; and cedures of § 660.10 of this part, when (2) At least 60 days from the date es- such comments are provided by a sin- tablished by the Director to comment gle point of contact, by the applicant, on proposed direct Federal develop- or directly to the Foundation by a ment or Federal financial assistance in commenting party. covered programs (i.e., those referenced § 660.3) other than continuation § 660.10 How does the Director make awards that are not peer reviewed. efforts to accommodate intergov- (b) This section also applies to com- ernmental concerns? ments in cases in which the review, co- (a) If a state process provides a state ordination, and communication with process recommendation to the Foun- the Foundation have been delegated. dation through its single point of con- § 660.9 How does the Director receive tact, the Director either: and respond to comments? (1) Accepts the recommendation; (a) The Director follows the proce- (2) Reaches a mutually agreeable so- dures in § 660.10 if: lution with the state process; or (1) A state office or official is des- (3) Provides the single point of con- ignated to act as a single point of contact with a written explanation of the tact between a state process and all decision in such form as the Director in Federal agencies, and his or her discretion deems appro- (2) That office or official transmits a priate. The Director may also supple- state process recommendation for a ment the written explanation by pro- program selected under § 660.6. viding the explanation to the single (b)(1) The single point of contact is point of contact by telephone, other not obligated to transmit comments telecommunication, or other means.

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(b) In any explanation under para- PART 670—CONSERVATION OF graph (a)(3) of this section, the Direc- ANTARCTIC ANIMALS AND PLANTS tor informs the single point of contact that: Subpart A—Introduction (1) The Foundation will not implement its decision for at least ten days Sec. after the single point of contact re- 670.1 Purpose of regulations. 670.2 Scope. ceives the explanation; or 670.3 Definitions. (2) The Director has reviewed the decision and determined that, because of Subpart B—Prohibited Acts, Exceptions unusual circumstances, the waiting period of at least ten days is not feasible. 670.4 Prohibited acts. 670.5 Exception in extraordinary cir- (c) For purposes of computing the cumstances. waiting period under paragraph (b)(1) 670.6 Prior possession exception. of this section, a single point of con- 670.7 Food exception. tact is presumed to have received writ- 670.8 Foreign permit exception. ten notification 5 days after the date of 670.9 Antarctic Conservation Act enforce- mailing of such notification. ment exception. 670.10 [Reserved]

§ 660.11 What are the Director’s obliga- Subpart C—Permits tions in interstate situations? (a) The Director is responsible for: 670.11 Applications for permits. 670.12 General issuance criteria. (1) Identifying proposed Federal fi- 670.13 Permit administration. nancial assistance and direct Federal 670.14 Conditions of permits. development that have an impact on 670.15 Modification, suspension, and revoca- interstate areas; tion. (2) Notifying appropriate officials 670.16 [Reserved] and entities in states which have adopted a process and which select the Subpart D—Native Mammals, Birds, Plants, Foundation’s program or activity. and Invertebrates (3) Making efforts to identify and no- 670.17 Specific issuance criteria. tify the affected state, areawide, re- 670.18 Content of permit applications. gional, and local officials and entities 670.19 Designation of native mammals. in those states that have not adopted a 670.20 Designation of native birds. process under the Order or do not se- 670.21 Designation of native plants. 670.22 [Reserved] lect the Foundation’s program or activity; Subpart E—Specially Protected Species of (4) Responding pursuant to § 660.10 of Mammals, Birds, and Plants this part if the Director receives a recommendation from a designated 670.23 Specific issuance criteria. areawide agency transmitted by a sin- 670.24 Content of permit applications. 670.25 Designation of specially protected gle point of contact, in cases in which species of native mammals, birds, and the review, coordination, and commu- plants. nication with the Foundation have 670.26 [Reserved] been delegated. (b) The Director uses the procedures Subpart F—Antarctic Specially Protected in § 660.10 if a state process provides a Areas state process recommendation to the 670.27 Specific issuance criteria. Foundation through a single point of 670.28 Content of permit applications. contact. 670.29 Designation of Antarctic specially protected areas, specially managed areas § 660.12 [Reserved] and historic sites and monuments. 670.30 [Reserved] § 660.13 May the Director waive any provision of these regulations? Subpart G—Import Into and Export From In an emergency, the Director may the United States waive any provision of these regula- 670.31 Specific issuance criteria for imports. tions. 670.32 Specific issuance criteria for exports.

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670.33 Content of permit applications. standing environmental, scientific, his- 670.34 Entry and exit ports. toric, aesthetic, or wilderness values or 670.35 [Reserved] to protect ongoing or planned sci- Subpart H—Introduction of Non-Indigenous entific research, designated in subpart Plants and Animals F of this part. Antarctica means the area south of 60 670.36 Specific issuance criteria. degrees south latitude. 670.37 Content of permit applications. Director means the Director of the 670.38 Conditions of permits. 670.39 [Reserved] National Science Foundation, or an officer or employee of the Foundation AUTHORITY: 16 U.S.C. 2405, as amended. designated by the Director. SOURCE: 63 FR 50164, Sept. 21, 1998, unless Harmful interference means— otherwise noted. (a) Flying or landing helicopters or other aircraft in a manner that dis- Subpart A—Introduction turbs concentrations of birds or seals; (b) Using vehicles or vessels, includ- § 670.1 Purpose of regulations. ing hovercraft and small boats, in a The purpose of the regulations in this manner that disturbs concentrations of part is to conserve and protect the na- birds or seals; tive mammals, birds, plants, and inver- (c) Using explosives or firearms in a tebrates of Antarctica and the eco- manner that disturbs concentrations of system upon which they depend and to birds or seals; implement the Antarctic Conservation (d) Willfully disturbing breeding or Act of 1978, Public Law 95–541, as molting birds or concentrations of amended by the Antarctic Science, birds or seals by persons on foot; Tourism, and Conservation Act of 1996, (e) Significantly damaging con- Public Law 104–227. centrations of native terrestrial plants § 670.2 Scope. by landing aircraft, driving vehicles, or walking on them, or by other means; The regulations in this part apply to: and (a) Taking mammals, birds, or plants (f) Any activity that results in the native to Antarctica. (b) Engaging in harmful interference significant adverse modification of of mammals, birds, invertebrates, or habitats of any species or population of plants native to Antarctica. native mammal, native bird, native (c) Entering or engaging in activities plant, or native invertebrate. within Antarctic Specially Protected Import means to land on, bring into, Areas. or introduce into, or attempt to land (d) Receiving, acquiring, trans- on, bring into or introduce into, any porting, offering for sale, selling, pur- place subject to the jurisdiction of the chasing, importing, exporting or hav- United States, including the 12-mile ing custody, control, or possession of territorial sea of the United States, any mammal, bird, or plant native to whether or not such act constitutes an Antarctica that was taken in violation importation within the meaning of the of the Act. customs laws of the United States. (e) Introducing into Antarctica any Management plan means a plan to member of a non-native species. manage the activities and protect the special value or values in an Antarctic § 670.3 Definitions. Specially Protected Area designated by In this part: the United States as such a site con- Act means the Antarctic Conserva- sistent with plans adopted by the Ant- tion Act of 1978, Public Law 95–541 (16 arctic Treaty Consultative Parties. U.S.C. 2401 et seq.) as amended by the Native bird means any member, at Antarctic Science, Tourism, and Con- any stage of its life cycle, of any spe- servation Act of 1996, Public Law 104– cies of the class Aves which is indige- 227. nous to Antarctica or occurs there sea- Antarctic Specially Protected Area sonally through natural migrations, means an area designated by the Ant- that is designated in subpart D of this arctic Treaty Parties to protect out- part. It includes any part, product, egg,

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or offspring of or the dead body or Northern Mariana Islands, and other parts thereof excluding fossils. commonwealth, territory, or posses- Native invertebrate means any terres- sion of the United States. trial or freshwater invertebrate, at any stage of its life cycle, which is indige- Subpart B—Prohibited Acts, nous to Antarctica. It includes any part thereof, but excludes fossils. Exceptions Native mammal means any member, at § 670.4 Prohibited acts. any stage of its life cycle, of any species of the class Mammalia, which is Unless a permit has been issued pur- indigenous to Antarctica or occurs suant to subpart C of this part or un- there seasonally through natural mi- less one of the exceptions stated in grations, that is designated in subpart §§ 670.5 through 670.9 is applicable, it is D of this part. It includes any part, unlawful to commit, attempt to com- product, offspring of or the dead body mit, or cause to be committed any of or parts thereof but excludes fossils. the acts described in paragraphs (a) Native plant means any terrestrial or through (g) of this section. freshwater vegetation, including (a) Taking of native mammal, bird or bryophytes, lichens, fungi, and algae, plants. It is unlawful for any person to at any stage of its life cycle which is take within Antarctica a native mam- indigenous to Antarctica that is des- mal, a native bird, or native plants. ignated in subpart D of this part. It in- (b) Engaging in harmful interference. It cludes seeds and other propagules, or is unlawful for any person to engage in parts of such vegetation, but excludes harmful interference in Antarctica of fossils. native mammals, native birds, native Person has the meaning given that plants or native invertebrates. term in section 1 of title 1, United (c) Entry into Antarctic specially des- States Code, and includes any person ignated areas. It is unlawful for any per- subject to the jurisdiction of the son to enter or engage in activities United States and any department, within any Antarctic Specially Pro- agency, or other instrumentality of the tected Area. Federal Government or of any State or (d) Possession, sale, export, and import local government. of native mammals, birds, and plants. It Protocol means the Protocol on Envi- is unlawful for any person to receive, ronmental Protection to the Antarctic acquire, transport, offer for sale, sell, Treaty, signed October 4, 1991, in Ma- purchase, export, import, or have cus- drid, and all annexes thereto, including tody, control, or possession of, any na- any future amendments to which the tive bird, native mammal, or native United States is a Party. plant which the person knows, or in the Specially Protected Species means any native species designated as a Spe- exercise of due care should have cially Protected Species that is des- known, was taken in violation of the ignated in subpart E of this part. Act. Take or taking means to kill, injure, (e) Introduction of non-indigenous ani- capture, handle, or molest a native mals and plants into Antarctica. It is un- mammal or bird, or to remove or dam- lawful for any person to introduce into age such quantities of native plants Antarctica any animal or plant which that their local distribution or abun- is not indigenous to Antarctica or dance would be significantly affected which does not occur there seasonally or to attempt to engage in such con- through natural migrations, as speci- duct. fied in subpart H of this part, except as Treaty means the Antarctic Treaty provided in §§ 670.7 and 670.8. signed in Washington, DC on December (f) Violations of regulations. It is un- 1, 1959. lawful for any person to violate the United States means the several states regulations set forth in this part. of the Union, the District of Columbia, (g) Violation of permit conditions. It is the Commonwealth of Puerto Rico, unlawful for any person to violate any American Samoa, the Virgin Islands, term or condition of any permit issued Guam, the Commonwealth of the under subpart C of this part.

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§ 670.5 Exception in extraordinary cir- § 670.8 Foreign permit exception. cumstances. Paragraphs (d) and (e) of § 670.4 shall (a) Emergency exception. No act de- not apply to transporting, carrying, re- scribed in § 670.4 shall be unlawful if the ceiving, or possessing native mammals, person committing the act reasonably native plants, or native birds or to the believed that the act was committed introduction of non-indigenous animals under emergency circumstances in- and plants when conducted by an agen- volving the safety of human life or of cy of the United States Government on ships, aircraft, or equipment or facili- behalf of a foreign national operating ties of high value, or the protection of under a permit issued by a foreign gov- the environment. ernment to give effect to the Protocol. (b) Aiding or salvaging native mammals § 670.9 Antarctic Conservation Act en- or native birds. The prohibition on tak- forcement exception. ing shall not apply to any taking of na- Paragraphs (a) through (d) of § 670.4 tive mammals or native birds if such shall not apply to acts carried out by action is necessary to: an Antarctic Conservation Act En- (1) Aid a sick, injured or orphaned forcement Officer (designated pursuant specimen; to 45 CFR 672.3) if undertaken as part (2) Dispose of a dead specimen; or of the Antarctic Conservation Act En- (3) Salvage a dead specimen which forcement Officer’s official duties. may be useful for scientific study. (c) Reporting. Any actions taken § 670.10 [Reserved] under the exceptions in this section shall be reported promptly to the Di- Subpart C—Permits rector. § 670.11 Applications for permits. § 670.6 Prior possession exception. (a) General content of permit applications. All applications for a permit (a) Exception. Section 670.4 shall not shall be dated and signed by the appli- apply to: cant and shall contain the following in- (1) any native mammal, bird, or plant formation: which is held in captivity on or before (1) The name and address of the ap- October 28, 1978; or plicant; (2) Any offspring of such mammal, (i) Where the applicant is an indi- bird, or plant. vidual, the business or institutional af- (b) Presumption. With respect to any filiation of the applicant must be in- prohibited act set forth in § 670.4 which cluded; or occurs after April 29, 1979, the Act cre- (ii) Where the applicant is a corpora- ates a rebuttable presumption that the tion, firm, partnership, or institution, native mammal, native bird, or native or agency, either private or public, the plant involved in such act was not held name and address of its president or in captivity on or before October 28, principal officer must be included. 1978, or was not an offspring referred to (2) Where the applicant seeks to en- in paragraph (a) of this section. gage in a taking, (i) The scientific names, numbers, § 670.7 Food exception. and description of native mammals, native birds or native plants to be Paragraph (e) of § 670.4 shall not taken; and apply to the introduction of animals (ii) Whether the native mammals, and plants into Antarctica for use as birds, or plants, or part of them are to food as long as animals and plants used be imported into the United States, for this purpose are kept under care- and if so, their ultimate disposition. fully controlled conditions. This excep- (3) Where the applicant seeks to en- tion shall not apply to living species of gage in a harmful interference, the sci- animals. Unconsumed poultry or its entific names, numbers, and descrip- parts shall be removed from Antarctica tion of native birds or native seals to unless incinerated, autoclaved or oth- be disturbed; the scientific names, erwise sterilized. numbers, and description of native

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plants to be damaged; or the scientific (f) Withdrawal. An applicant may names, numbers, and description of na- withdraw an application at any time. tive invertebrates, native mammals, (g) Publication of permit applications. native plants, or native birds whose The Director shall publish notice in the habitat will be adversely modified; FEDERAL REGISTER of each application (4) A complete description of the lo- for a permit. The notice shall invite cation, time period, and manner in the submission by interested parties, which the taking or harmful inter- within 30 days after the date of publi- ference would be conducted, including cation of the notice, of written data, the proposed access to the location; comments, or views with respect to the (5) Where the application is for the application. Information received by introduction of non-indigenous plants the Director as a part of any applica- or animals, the scientific name and the tion shall be available to the public as number to be introduced; a matter of public record. (6) Whether agents as referred to in § 670.13 will be used; and § 670.12 General issuance criteria. (7) The desired effective dates of the Upon receipt of a complete and prop- permit. erly executed application for a permit (b) Content of specific permit applica- and the expiration of the applicable tions. In addition to the general infor- public comment period, the Director mation required for permit applica- will decide whether to issue the permit. tions set forth in this subpart, the ap- In making the decision, the Director plicant must submit additional infor- will consider, in addition to the spe- mation relating to the specific action cific criteria set forth in the appro- for which the permit is being sought. priate subparts of this part: These additional requirements are set (a) Whether the authorization re- forth in the sections of this part deal- quested meets the objectives of the Act ing with the subject matter of the per- and the requirements of the regula- mit applications as follows: tions in this part; Native Mammals, Birds, Plants, and Inverte- (b) The judgment of persons having brates—Section 670.17 expertise in matters germane to the Specially Protected Species—Section 670.23 application; and Specially Protected Areas—Section 670.27 (c) Whether the applicant has failed Import and Export—Section 670.31 to disclose material information re- Introduction of Non-Indigenous Plants and quired or has made false statements Animals—Section 670.36 about any material fact in connection (c) Certification. Applications for per- with the application. mits shall include the following certification: § 670.13 Permit administration. (a) Issuance of the permits. The Direc- I certify that the information submitted in this application for a permit is complete and tor may approve any application in accurate to the best of my knowledge and be- whole or part. Permits shall be issued lief. Any false statement will subject me to in writing and signed by the Director. the criminal penalties of 18 U.S.C. 1001. Each permit may contain such terms (d) Address to which applications and conditions as are consistent with should be sent. Each application shall the Act and this part. be in writing, addressed to: (b) Denial. The applicant shall be notified in writing of the denial of any Permit Officer, Office of Polar Programs, Na- permit request or part of a request and tional Science Foundation, Room 755, 4201 of the reason for such denial. If author- Wilson Boulevard, Arlington, Virginia ized in the notice of denial, the appli- 22230. cant may submit further information (e) Sufficiency of application. The suf- or reasons why the permit should not ficiency of the application shall be de- be denied. Such further submissions termined by the Director. The Director shall not be considered a new applica- may waive any requirement for infor- tion. mation, or request additional informa- (c) Amendment of applications or per- tion as determined to be relevant to mits. An applicant or permit holder de- the processing of the application. siring to have any term or condition of

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his application or permit modified (b) Display of permits. Any permit must submit full justification and sup- issued shall be displayed for inspection porting information in conformance upon request to the Director, des- with the provisions of this subpart and ignated agents of the Director, or any the subpart governing the activities person with enforcement responsibil- sought to be carried out under the ities. modified permit. Any application for (c) Filing of reports. Permit holders modification of a permit that involves are required to file reports of the ac- a material change beyond the terms tivities conducted under a permit. Re- originally requested will normally be ports shall be submitted to the Direc- subject to the same procedures as a tor not later than June 30 for the pre- new application. ceding 12 months. (d) Notice of issuance or denial. Within 10 days after the date of the issuance or § 670.15 Modification, suspension, and denial of a permit, the Director shall revocation. publish notice of the issuance or denial (a) The Director may modify, sus- in the FEDERAL REGISTER. pend, or revoke, in whole or in part, (e) Agents of the permit holder. The Di- any permit issued under this subpart: rector may authorize the permit holder (1) In order to make the permit con- to designate agents to act on behalf of sistent with any change to any regula- the permit holder. tion in this part made after the date of (f) Marine mammals, endangered spe- issuance of this permit; cies, and migratory birds. If the Director (2) If there is any change in condi- receives a permit application involving tions which make the permit incon- any native mammal which is a marine sistent with the purpose of the Act and mammal as defined by the Marine the regulations in this part; or Mammal Protection Act of 1972 (16 (3) In any case in which there has U.S.C. 1362(5)), any species which is an been any violation of any term or con- endangered or threatened species under dition of the permit, any regulation in the Endangered Species Act of 1973 (16 this part, or any provision of the Act. U.S.C. 1531 et seq.) or any native bird (b) Whenever the Director proposes which is protected under the Migratory any modifications, suspension, or rev- Bird Treaty Act (16 U.S.C. 701 et seq.), ocation of a permit under this section, the Director shall submit a copy of the the permittee shall be afforded oppor- application to the Secretary of Com- tunity, after due notice, for a hearing merce or to the Secretary of the Inte- by the Director with respect to such rior, as appropriate. If the appropriate proposed modification, suspension or Secretary determines that a permit revocation. If a hearing is requested, should not be issued pursuant to any of the action proposed by the Director the cited acts, the Director shall not shall not take effect before a decision issue a permit. The Director shall in- is issued by him after the hearing, un- form the applicant of any denial by the less the proposed action is taken by the appropriate Secretary and no further Director to meet an emergency situa- action shall be taken on the application. tion. If, however, the appropriate Sec- (c) Notice of the modification, sus- retary issues a permit pursuant to the pension, or revocation of any permit by requirements of the cited acts, the Di- the Director shall be published in the rector still must determine whether FEDERAL REGISTER, within 10 days from the proposed action is consistent with the date of the Director’s decision. the Act and the regulations in this part. § 670.16 [Reserved] § 670.14 Conditions of permits. Subpart D—Native Mammals, (a) Possession of permits. Permits Birds, Plants, and Invertebrates issued under the regulations in this part, or copies of them, must be in the § 670.17 Specific issuance criteria. possession of persons to whom they are With the exception of specially pro- issued and their agents when con- tected species of mammals, birds, and ducting the authorized action. plants designated in subpart E of this

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part, permits to engage in a taking or Pinnipeds: harmful interference: Crabeater seal—Lobodon carcinophagus. (a) May be issued only for the pur- Leopard seal—Hydrurga leptonyx. Ross seal—Ommatophoca rossi.1 pose of providing— Southern elephant seal—Mirounga leonina. (1) Specimens for scientific study or Southern fur seals—Arctocephalus spp.1 scientific information; or Weddell seal—Leptonychotes weddelli. (2) Specimens for museums, zoolog- Large Cetaceans (Whales): ical gardens, or other educational or Blue whale—Balaenoptera musculus. cultural institutions or uses; or Fin whale—Balaenoptera physalus. (3) For unavoidable consequences of Humpback whale—Megaptera novaeangliae. Minke whale—Balaenoptera acutrostrata. scientific activities or the construction Pygmy blue whale—Balaenoptera musculus and operation of scientific support fa- brevicauda cilities; and Sei whale—Balaenoptera borealis (b) Shall ensure, as far as possible, Southern right whale—Balaena glacialis that— australis (1) No more native mammals, birds, Sperm whale—Physeter macrocephalus Small Cetaceans (Dolphins and porpoises): or plants are taken than are necessary Arnoux’s beaked whale—Berardius arnuxii. to meet the purposes set forth in para- Commerson’s dolphin—Cephalorhynchus graph (a) of this section; commersonii (2) No more native mammals or na- Dusky dolphin—Lagenorhynchus obscurus tive birds are taken in any year than Hourglass dolphin—Lagenorhynchus can normally be replaced by net nat- cruciger ural reproduction in the following Killer whale—Orcinus orca Long-finned pilot whale—Globicephala breeding season; melaena (3) The variety of species and the bal- Southern bottlenose whale—Hyperoodon ance of the natural ecological systems planifrons. within Antarctica are maintained; and Southern right whale dolphin—Lissodelphis (4) The authorized taking, trans- peronii porting, carrying, or shipping of any Spectacled porpoise—Phocoena dioptrica native mammal or bird is carried out in a humane manner. § 670.20 Designation of native birds. The following are designated native § 670.18 Content of permit applica- birds: tions. Albatross In addition to the information required in subpart C of this part, an ap- Black-browed—Diomedea melanophris. plicant seeking a permit to take a na- Gray-headed—Diomedea chrysostoma. Light-mantled sooty—Phoebetria tive mammal or native bird shall in- palpebrata. clude a complete description of the Wandering—Diomedea exulans. project including the purpose of the proposed taking, the use to be made of Fulmar the native mammals or native birds, Northern Giant—Macronectes halli. and the ultimate disposition of the na- Southern—Fulmarus glacialoides. tive mammals and birds. An applicant Southern Giant—Macronectes giganteus. seeking a permit to engage in a harm- Gull ful interference shall include a complete description of the project includ- Southern Black-backed—Larus ing the purpose of the activity which dominicanus. will result in the harmful interference. Jaeger Sufficient information must be pro- Parasitic—Stercorarius parasiticus. vided to establish that the taking, Pomarine—Stercorarius pomarinsus harmful interference, transporting, carrying, or shipping of a native mam- Penguin mal or bird shall be humane. Adelie—Pygoscelis adeliae. Chinstrap—Pygoscelis antarctica. § 670.19 Designation of native mammals. 1 These species of mammals have been des- The following are designated native ignated as specially protected species and mammals: are subject to subpart E of this part.

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Emperor—Aptenodytes forsteri. Lichens Gentoo—Pygoscelis papua. Marine algae King—Aptenodytes patagonicus. Vascular Plants Macaroni—Eudyptes chrysolophus. Rockhopper—Eudyptes crestatus. § 670.22 [Reserved] Petrel Subpart E—Specially Protected Antarctic—Thalassoica antarctica. Black-bellied Storm—Fregetta tropica. Species of Mammals, Birds, Blue—Halobaena caerulea. and Plants Gray—Procellaria cinerea. Great-winged—Pterodroma macroptera. § 670.23 Specific issuance criteria. Kerguelen—Pterodroma brevirostris. Permits authorizing the taking of Mottled—Pterodroma inexpectata. mammals, birds, or plants designated Snow—Pagodroma nivea. Soft-plumaged—Pterodroma mollis. as a Specially Protected Species of South-Georgia Diving—Pelecanoides mammals, birds, and plants in § 670.25 georgicus. may only be issued if: White-bellied Storm—Fregetta grallaria. (a) There is a compelling scientific White-chinned—Procellaria aequinoctialis. purpose for such taking; White-headed—Pterodroma lessoni. (b) The actions allowed under any Wilson’s Storm—Oceanites oceanicus. such permit will not jeopardize the ex- Pigeon isting natural ecological system, or the survival of the affected species or popu- Cape—Daption capense. lation; Pintail (c) The taking involves non-lethal techniques, where appropriate; and South American Yellow-billed—Anas georgica spinicauda. (d) The authorized taking, transporting, carrying or shipping will be Prion carried out in a humane manner. Antarctic—Pachyptila desolata. Narrow-billed—Pachyptila belcheri. § 670.24 Content of permit applications. Shag In addition to the information re- Blue-eyed—Phalacrocorax atriceps. quired in subpart C of this part, an applicant seeking a permit to take a Spe- Shearwater cially Protected Species shall include Sooty—Puffinus griseus. the following in the application: (a) A detailed scientific justification Skua of the need for taking the Specially Brown—Catharacta lonnbergi Protected Species, including a discus- South Polar—Catharacta maccormicki. sion of possible alternative species; Swallow (b) Information demonstrating that the proposed action will not jeopardize Barn—Hirundo rustica. the existing natural ecological system Sheathbill or the survival of the affected species or population; and American—Chionis alba. (c) Information establishing that the Tern taking, transporting, carrying, or ship- Antarctic—Sterna vittata. ping of any native bird or native mam- Arctic—Sterna paradisaea. mal will be carried out in a humane manner. [66 FR 46739, Sept. 7, 2001] § 670.25 Designation of specially pro- § 670.21 Designation of native plants. tected species of native mammals, All plants whose normal range is lim- birds, and plants. ited to, or includes Antarctica are des- The following species has been designated native plants, including: ignated as Specially Protected Species Bryophytes by the Antarctic Treaty Parties and is Freshwater algae hereby designated Specially Protected Fungi Species:

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Common Name and Scientific Name ASPA. Detailed maps and descriptions Ross Seal—Ommatophoca rossii of the sites and complete management [73 FR 14939, Mar. 20, 2008] plans can be obtained from the Na- tional Science Foundation, Office of § 670.26 [Reserved] Polar Programs, National Science Foundation, Room 755, 4201 Wilson Subpart F—Antarctic Specially Boulevard, Arlington, Virginia 22230. Protected Areas ASPA 101 Taylor Rookery, Mac. Rob- ertson Land § 670.27 Specific issuance criteria. ASPA 102 Rookery Islands, Holme Permits authorizing entry into any Bay, Mac. Robertson Land Antarctic Specially Protected Area ASPA 103 Ardery Island and Odbert designated in § 670.29 may only be Island, Budd Coast, Wilkes Land issued if: ASPA 104 Sabrina Island, Northern (a) The entry and activities to be en- Ross Sea, Antarctica gaged in are consistent with an ap- ASPA 105 Beaufort Island, McMurdo proved management plan, or Sound, Ross Sea (b) A management plan relating to ASPA 106 Cape Hallett, Northern Vic- the area has not been approved by the toria Land, Ross Sea Antarctic Treaty Parties, but ASPA 107 Emperor Island, Dion Is- (1) There is a compelling scientific lands, Marguerite Bay, Antarctic Pe- purpose for such entry which cannot be ninsula served elsewhere, and ASPA 108 Green Island, Berthelot Is- (2) The actions allowed under the per- lands, Antarctic Peninsula mit will not jeopardize the natural eco- ASPA 109 Moe Island, South Orkney logical system existing in such area. Islands ASPA 110 Lynch Island, South Orkney § 670.28 Content of permit application. Islands In addition to the information re- ASPA 111 Southern Powell Island and quired in subpart C of this part, an ap- adjacent islands, South Orkney Is- plicant seeking a permit to enter an lands Antarctic Specially Protected Area ASPA 112 Coppermine Peninsula, Rob- shall include the following in the appli- ert Island, South Shetland Islands cation: ASPA 113 Litchfield Island, Arthur (a) A detailed justification of the Harbour, Anvers Island, Palmer Ar- need for such entry, including a discus- chipelago sion of alternatives; ASPA 114 Northern Coronation Island, (b) Information demonstrating that South Orkney Islands the proposed action will not jeopardize ASPA 115 Lagotellerie Island, Mar- the unique natural ecological system guerite Bay, Graham Land in that area; and ASPA 116 New College Valley, (c) Where a management plan exists, Caughley Beach, Cape Bird, Ross Is- information demonstrating the consist- land ency of the proposed actions with the ASPA 117 Avian Island, Marguerite management plan. Bay, Antarctic Peninsula § 670.29 Designation of Antarctic Spe- ASPA 118 Summit of Mount Mel- cially Protected Areas, Specially bourne, Victoria Land Managed Areas and Historic Sites ASPA 119 Davis Valley and Forlidas and Monuments. Pond, Dufek Massif, Pensacola Moun- (a) The following areas have been tains designated by the Antarctic Treaty ASPA 120 Pointe-Geologie Parties for special protection and are Archipelego, Terre Adelie hereby designated as Antarctic Spe- ASPA 121 Cape Royds, Ross Island cially Protected Areas (ASPA). The ASPA 122 Arrival Heights, Hut Point Antarctic Conservation Act of 1978, as Peninsula, Ross Island amended, prohibits, unless authorized ASPA 123 Barwick and Balham Val- by a permit, any person from entering leys, Southern Victoria Land or engaging in activities within an ASPA 124 Cape Crozier, Ross Island

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ASPA 125 Fildes Peninsula, King ASPA 152 Western Bransfield Strait George Island (25 de Mayo) ASPA 153 Eastern Dallmann Bay ASPA 126 Byers Peninsula, Living- ASPA 154 Botany Bay, Cape Geology, ston Island, South Shetland Islands Victoria Land ASPA 127 Haswell Island ASPA 155 Cape Evans, Ross Island ASPA 128 Western shore of Admiralty ASPA 156 Lewis Bay, Mount Erebus, Bay, King George Island, South Shet- Ross Island land Islands ASPA 157 Backdoor Bay, Cape Royds, ASPA 129 Rothera Point, Adelaide Is- Ross Island land ASPA 158 Hut Point, Ross Island ASPA 130 Tramway Ridge, Mount Er- ASPA 159 Cape Adare, Borchgrevink ebus, Ross Island Coast ASPA 131 Canada Glacier, Lake ASPA 160 Frazier Islands, Windmill Fryxell, Taylor Valley, Victoria Islands, Wilkes Land, East Antarc- Land tica ASPA 132 Potter Peninsula, King ASPA 161 Terra Nova Bay, Ross Sea George Island (Isla 25 de Mayo) ASPA 162 Mawson’s Huts, Cape (South Shetland Islands) Denison, Commonwealth Bay, George ASPA 133 Harmony Point, Nelson Is- V Land, East Antarctica land, South Shetland Islands ASPA 163 Dakshin Gangotri Glacier, ASPA 134 Cierva Point and offshore Dronning Maud Land islands, Danco Coast, Antarctic Pe- ASPA 164 Scullin and Murray ninsula Monoliths, Mac. Robertson Land ASPA 135 North-eastern Bailey Penin- ASPA 165 Edmonson Point, Wood sula, Budd Coast, Wilkes Land Bay, Ross Sea ASPA 136 Clark Peninsula, Budd ASPA 166 Port-Martin, Terre Adelie Coast, Wilkes Land ASPA 167 Hawker Island, Vestfold ASPA 137 North-west White Island, Hills, Ingrid Christensen Coast, Prin- McMurdo Sound cess Elizabeth Land, East Antarctica ASPA 138 Linnaeus Terrace, Asgard ASPA 168 Mount Harding, Grove Range, Victoria Land Mountains, East Antarctica ASPA 139 Biscoe Point, Anvers Island, ASPA 169 Amanda Bay, Ingrid Palmer Archipelago Christensen Coast, Princess Eliza- ASPA 140 Parts of Deception Island, beth Land, East Antarctica South Shetland Islands ASPA 170 Marion Nunataks, Charcot ASPA 141 Yukidori Valley, Island, Antarctic Peninsula ASPA 171 Langhovde, Lutzow-Holm Bay Narebski Point, Barton Peninsula, ASPA 142 Svarthamaren King George Island ASPA 143 Marine Plain, Mule Penin- (b) The following areas have been sula, Vestfold Hills, Princess Eliza- designated by the Antarctic Treaty beth Land Parties for special management and ASPA 144 Chile Bay (Discovery Bay), have been designated as Antarctic Spe- Greenwich Island, South Shetland Is- cially Managed Areas (ASMA). De- lands tailed maps and descriptions of the ASPA 145 Port Foster, Deception Is- sites and complete management plans land, South Shetland Islands can be obtained from the National ASPA 146 South Bay, Doumer Island, Science Foundation, Office of Polar Palmer Archipelago Programs, Room 755, 4201 Wilson Bou- ASPA 147 Ablation Valley and Gany- levard, Arlington, Virginia 22230. mede Heights, Alexander Island ASMA 1 Admiralty Bay, King George ASPA 148 Mount Flora, Hope Bay, Island Antarctic Peninsula ASMA 2 McMurdo Dry Valleys, ASPA 149 Cape Shirreff and San Southern Victoria Land Talmo Island, Livingston Island, ASMA 3 Cape Denison, Common- South Shetland Islands wealth Bay, George V Land, East ASPA 150 Ardley Island, Maxwell Bay, Antarctica King George Island (25 de Mayo) ASMA 4 Deception Island ASPA 151 Lions Rump, King George ASMA 5 Amundsen-Scott South Pole Island, South Shetland Islands Station, South Pole

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ASMA 6 Larsemann Hills, East Ant- HSM 14 Site of ice cave at Inex- arctica pressible Island, Terra Nova Bay, con- ASMA 7 Southwest Anvers Island and structed in March 1912 by Victor Camp- Palmer Basin bell’s Northern Party. (c) The following areas have been HSM 15 Hut at Cape Royds, Ross Is- designated by the Antarctic Treaty land, built in February 1908 by the Parties as historic sites or monuments British Antarctic Expedition. (HSM). The Antarctic Conservation HSM 16 Hut at Cape Evans, Ross Is- Act of 1978, as amended, prohibits any land, built in January 1911 by the Brit- damage, removal or destruction of a ish Antarctic Expedition. historic site or monument listed pursu- HSM 17 Cross on Wind Vane Hill, ant to Annex V to the Protocol. Cape Evans, Ross Island, erected by the Descriptions of the sites or monu- Ross Sea Party in memory of three ments can be obtained from the Na- members of the party who died in the tional Science Foundation, Office of vicinity in 1916. Polar Programs, Room 755, 4201 Wilson HSM 18 Hut at Hut Point, Ross Is- Boulevard, Arlington, Virginia 22230. land, built in February 1902 by the HSM 1 Flag mast erected in Decem- British Antarctic Expedition. ber 1965 at South Geographical Pole by HSM 19 Cross at Hut Point, Ross Is- the First Argentine Overland Polar Ex- land, erected in February 1904 by the pedition. British Antarctic Expedition in mem- HSM 2 Rock cairn and plaques ory of George Vince. erected in January 1961 at Syowa Sta- HSM 20 Cross on Observation Hill, tion in memory of Shun Fukushima. Ross Island, erected in January 1913 by the British Antarctic Expedition in HSM 3 Rock cairn and plaque erect- memory of Captain Robert F Scott’s ed in January 1930 by Sir Douglas party which perished on the return Mawson on Proclamation Island, En- journey from the South Pole. derby Land. HSM 21 Remains of stone hut at HSM 4 Station building to which a Cape Crozier, Ross Island, constructed bust of V.I. Lenin is fixed together in July 1911 by the British Antarctic with a plaque in memory of the con- Expedition. quest of the Pole of Inaccessibility, by HSM 22 Three huts and associated Soviet Antarctic Explorers in 1958. relics at Cape Adare Two built in Feb- HSM 5 Rock cairn and plaque at ruary 1899 the third was built in Feb- Cape Bruce, Mac. Robertson Land, ruary 2011 all by the British Antarctic erected in February 1931 by Sir Douglas Expedition. Mawson. HSM 23 Grave at Cape Adare of Nor- HSM 6 Rock cairn and canister at wegian biologist Nicolai Hanson. Walkabout Rocks, Vestfold Hills, Prin- HSM 24 Rock cairn, known as cess Elizabeth Land, erected in 1939 by ‘‘Amundsen’s cairn,’’ at Mount Betty, Sir Hubert Wilkins. Queen Maud Range erected by Roald HSM 7 Stone with inscribed plaque, Amundsen in January 1912. erected at Mirny Observatory, Mabus HSM 26 Abandoned installations of Point, in memory of driver-mechanic Argentine Station ‘‘General San Mar- Ivan Kharma. tin’’ on Barry Island, Debenham Is- HSM 8 Metal Monument sledge and lands, Marguerite Bay, Antarctic Pe- plaque at Mirny Observatory, Mabus ninsula. Point, in memory of driver-mechanic HSM 27 Cairn with a replica of a Anatoly Shcheglov. lead plaque erected at Megalestris Hill, HSM 9 Cemetery on Buromskiy Is- Petermann Island in 1909 by the second land, near Mirny Observatory. French expedition. HSM 10 Building (Magnetic Observ- HSM 28 Rock Cairn at Port Charcot, atory) at Dobrowolsky Station, Bunger Booth Island, with wooden pillar and Hills, with plaque in memory of the plaque. opening of Oasis Station in 1956. HSM 29 Lighthouse named HSM 11 Heavy Tractor at Vostock ‘‘Primero de Mayo’’ erected on Lambda Station with plaque in memory of the Island, Melchior Islands, by Argentina opening of the Station in 1957. in 1942.

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HSM 30 Shelter at Paradise Harbour rating this point from the glacier and erected in 1950. bearing an inscription. HSM 32 Concrete Monolith erected HSM 46 All of the buildings and in- in 1947 near Capitan Arturo Prat Base stallations of Port-Martin Base, Terre on Greenwich Island, South Shetland Ad6lie, constructed in 1950 by the 3rd Islands. French expedition in Terre Ad6lie. HSM 33 Shelter and cross with HSM 47 Wooden building called plaque near Capitan Arturo Prat Base ‘‘Base Marret’’ on the Ile des Petrels, Greenwich Island, South Shetland Is- Terre Ad6lie. lands. HSM 48 Iron Cross on the North- HSM 34 Bust at Capitan Arturo Prat East headland of the Ile des Petrels, base Greenwich Island, South Shetland Terre Ad6lie. Islands, of Chilean naval hero Arturo HSM 49 Concrete pillar erected by Prat. the First Polish Antarctic Expedition HSM 35 Wooden cross and statue of at Dobrowski Station on Bunger Hill in the Virgin of Carmen erected in 1947 January 1959, to measure acceleration near Capitan Arturo Prat base Green- due to gravity. wich Island, South Shetland Islands. HSM 50 Brass Plaque bearing the HSM 36 Replica of a metal plaque Polish Eagle at Fildes Peninsula, King erected by Eduard Dallman at Potter George Island, South Shetland Islands. Cove, King George Island, South Shet- HSM 51 Grave of Wlodzimierz land Islands. Puchalski, surmounted by an iron HSM 37 Statue erected in 1948 at cross south of Arctowski station on General Bernando O’Higgins Base King George Island, South Shetland Is- (Chile) Trinity Peninsula. lands. HSM 38 Wooden hut on Snow Hill Is- HSM 52 Monolith commemorating land built in February 1902 by the the establishment on 20 February 1985 Swedish South Polar Expedition. of the ‘‘Great Wall Station’’ on Fildes HSM 39 Stone hut at Hope Bay, Peninsula, King George Island, South Trinity Peninsula built in January 1903 Shetland Islands. by the Swedish South Polar Expedi- HSM 53 Bust of Captain Luis tion. Alberto Pardo, monolith and plaques HSM 40 Bust of General San Martin, on Point Wild, Elephant Island, South grotto with statue of the Virgin Lujan, Shetland Islands. a flag mast and graveyard at Base HSM 54 Richard E. Byrd Historic Esperanza, Hope Bay Trinity Penin- Monument, a bronze bust at McMurdo sula, erected by Argentina in 1955. Station. HSM 41 Stone hut and grave at HSM 55 East Base, Antarctica, Paulet Island built in 1903 by members Stonington Island (Buildings and arti- of the Swedish South Polar Expedition. facts) erected by the Antarctic Service HSM 42 Area of Scotia bay, Laurie Expedition (1939–1941) and the Ronne Island, South Orkney containing stone Antarctic Research Expedition (1947– huts built in 1903 by the Scottish Ant- 1948). arctic Expedition, Argentine meteoro- HSM 56 Waterboat Point, Danco logical hut and magnetic observatory Coast, (remains of hut and environs). (Moneta house) and graveyard. HSM 57 Plaque at ‘‘Yankee Bay’’ HSM 43 Cross erected in 1955 and (Yankee Harbour), MacFarlane Strait, subsequently moved to Belgrano II Sta- Greenwich Island, South Shetland Is- tion, Nunatak Bertrab, Confin Coast, lands. Coats Land in 1979. HSM 59 Cairn on Half Moon Beach, HSM 44 Plaque erected at tem- Cape Shirreff, Livingston Island, South porary Indian Station ‘‘Dakshin Shetland Islands and a Plaque on Gangotri,’’ Princess Astrid Kyst, Dron- ‘Cerro Gaviota’ opposite San Telmo Is- ing Maud Land, listing the names of lets. the first Indian Antarctic Expedition. HSM 60 Wooden plaque and cairn HSM 45 Plaque on Brabant Island, placed in November 1903 at ‘‘Penguins on Metchnikoff Point, at a height of Bay,’’ Seymour Island (Marambio), 70m on the crest of the moraine sepa- James Ross Archipelago.

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HSM 61 ‘‘Base A’’ at Port Lockroy, HSM 80 Amundsen’s Tent erected in Goudier Island, off Wiencke Island. December 1911 at the South Pole. HSM 62 ‘‘Base F’’ (Wordie House), HSM 81 Rocher du Debarquement on Winter Island, Argentine Islands. (Landing Rock). HSM 63 ‘‘Base Y’’ on Horseshoe Is- HSM 82 Monument to the Antarctic land, Marguerite Bay, western Graham Treaty and Plaques, Fildes Peninsula, Land. King George Island, South Shetland Is- HSM 64 ‘‘Base E’’ on Stonington Is- lands. land, Marguerite Bay, western Graham HSM 83 Base ‘‘W’’ established in Land. 1956 at Detaille Island, Lallemande HSM 65 Message post erected in Fjord, Loubert Coast. January 1895 on Svend Foyn Island, Possession Islands. HSM 84 Hut erected in 1973 at HSM 66 Prestrud’s cairn, Scott Damoy Point, Dorian Bay, Wiencke Is- Nunataks, Alexandra Mountains, Ed- land, Palmer Archipelago. ward VII Peninsula erected in Decem- HSM 85 Plaque Commemorating the ber 1911. PM–3A Nuclear Power Plant at HSM 67 Rock shelter known as McMurdo Station. ‘‘Granite House,’’ erected in 1911 at HSM 86 No.1 Building Commemo- Cape Geology, Granite Harbour. rating China’s Antarctic Expedition at HSM 68 Site of depot at Hells Gate Great Wall/Station. Moraine, Inexpressible Island, Terra Nova Bay. [77 FR 5404, Feb. 3, 2012] HSM 69 Message post at Cape § 670.30 [Reserved] Crozier, Ross Island, erected January 1902 by Capt. Robert F. Scott’s Dis- covery Expedition. Subpart G—Import Into and Export HSM 70 Message post at Cape From the United States Wadworth, Coulman Island, erected January 1902 by Capt. Robert F. Scott. § 670.31 Specific issuance criteria for HSM 71 Whalers Bay, Deception Is- imports. land, South Shetland Islands (includes Subject to compliance with other ap- whaling artifacts). plicable law, any person who takes a HSM 72 Mikkelsen Cairn, Tryne Is- native mammal, bird, or plant under a lands, Vestfold Hills. permit issued under the regulations in HSM 73 Memorial Cross for the 1979 this part may import it into the United Mount Erebus crash victims, erected in States unless the Director finds that January 1987 at Lewis Bay, Ross Island. the importation would not further the HSM 74 Unnamed cove on the south- purpose for which it was taken. If the west coast of Elephant Island, South importation is for a purpose other than Shetland Islands, including the fore- that for which the native mammal, shore and intertidal area, in which the bird, or plant was taken, the Director wreckage of a large wooden sailing ves- may permit importation upon a finding sel is located. that importation would be consistent HSM 75 ‘‘A Hut’’ of Scott base, with the purposes of the Act, the regu- Pram Point, Ross Island. lations in this part, or the permit HSM 76 Ruins of base Pedro Aguirre Cerda, Pendulum Cove, Deception Is- under which they were taken. land, South Shetland Islands. § 670.32 Specific issuance criteria for HSM 77 Cape Denison, Common- exports. wealth Bay, George V Land, including Boat Harbour and the historic artifacts The Director may permit export from contained within its waters. the United States of any native mam- HSM 78 Memorial Plaque at India mal, bird, or native plants taken with- Point, Humboldt Mountains, Wohlthat in Antarctica upon a finding that ex- Massif, central Dronning Maud Land. portation would be consistent with the HSM 79 Lillie Marleen Hut, Mt. purposes of the Act, the regulations in Dockery, Everett Range, Northern Vic- this part, or the permit under which toria Land. they were taken.

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§ 670.33 Content of permit applica- § 670.35 [Reserved] tions. In addition to the information re- Subpart H—Introduction of Non- quired in subpart C of this part, an ap- Indigenous Plants and Animals plicant seeking a permit to import into or export from the United States a na- § 670.36 Specific issuance criteria. tive mammal, a native bird, or native For purposes consistent with the Act, plants taken within Antarctica shall only the following plants and animals include the following in the applica- may be considered for a permit allow- tion: ing their introduction into Antarctica: (a) Information demonstrating that (a) Domestic plants; and the import or export would further the (b) Laboratory animals and plants in- purposes for which the species was cluding viruses, bacteria, yeasts, and taken; fungi. (b) Information demonstrating that Living non-indigenous species of the import or export is consistent with birds shall not be introduced into Ant- the purposes of the Act or the regula- arctica. tions in this part; § 670.37 Content of permit applica- (c) A statement as to which U.S. port tions. will be used for the import or export, and Applications for the introduction of plants and animals into Antarctica (d) Information describing the in- must describe: tended ultimate disposition of the im- (a) The species, numbers, and if ap- ported or exported item. propriate, the age and sex, of the ani- § 670.34 Entry and exit ports. mals or plants to be introduced into Antarctica; (a) Any native mammal, native bird, (b) The need for the plants or ani- or native plants taken within Antarc- mals; tica that are imported into or exported (c) What precautions the applicant from the United States must enter or will take to prevent escape or contact leave the United States at ports des- with native fauna and flora; and ignated by the Secretary of Interior in (d) How the plants or animals will be 50 CFR part 14. The ports currently removed from Antarctica or destroyed designated are: after they have served their purpose. (1) Los Angeles, California. (2) San Francisco, California. § 670.38 Conditions of permits. (3) Miami, Florida. All permits allowing the introduction (4) Honolulu, Hawaii. of non-indigenous plants and animals (5) Chicago, Illinois. will require that the animal or plant be (6) New Orleans, Louisiana. kept under controlled conditions to (7) New York, New York. prevent its escape or contact with na- (8) Seattle, Washington. tive fauna and flora and that after serving its purpose the plant or animal (9) Dallas/Fort Worth, Texas. shall be removed from Antarctica or be (10) Portland, Oregon. destroyed in manner that protects the (11) Baltimore, Maryland. natural system of Antarctica. (12) Boston, Massachusetts. (13) Atlanta, Georgia. § 670.39 [Reserved] (b) Permits to import or export at non-designated ports may be sought PART 671—WASTE REGULATION from the Secretary of Interior pursuant to subpart C, 50 CFR part 14. Subpart A—Introduction Sec. 671.1 Purpose of regulations. 671.2 Scope. 671.3 Definitions.

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Subpart B—Prohibited Acts, Exceptions Act means the Antarctic Conserva- tion Act of 1978, Public Law 95–541, 92 671.4 Prohibited acts. Stat. 2048 (16 U.S.C. 2401 et seq.) 671.5 Exceptions. Antarctic hazardous waste means any Subpart C—Permits waste consisting of or containing one or more designated pollutants. 671.6 Applications for permits. Antarctica means the area south of 60 671.7 General issuance criteria. degrees south latitude. 671.8 Permit administration. Banned substance means any poly- 671.9 Conditions of permit. 671.10 Review, modification, suspension, and chlorinated biphenyls (PCBs), non-ster- revocation. ile soil, polystyrene beads, plastic chips or similar loose polystyrene Subpart D—Waste Management packing material, pesticides (other than those required for scientific, med- 671.11 Waste storage. ical or hygiene purposes) or other sub- 671.12 Waste disposal. 671.13 Waste management for the USAP. stance designated as such under subpart E of this part. Subpart E—Designation of Banned Designated pollutant means any sub- Substances; Reclassification of Pollutants stance designated as such by the Direc- tor pursuant to subpart E of this part; 671.14 Annual review. any pesticide, radioactive substance, or 671.15 Publication of preliminary deter- substance consisting of or containing mination. 671.16 Designation and redesignation of pol- any chemical listed by source, generic lutants. or chemical name at 40 CFR 61.01, Table 116.4A of 40 CFR 116.4; subpart D Subpart F—Cases of Emergency of 40 CFR part 261, 40 CFR 302.4, part 355, and part 372; and any substance 671.17 Cases of emergency. which exhibits a hazardous waste char- AUTHORITY: 16 U.S.C. 2405. acteristic as defined in subparts B and SOURCE: 58 FR 34719, June 29, 1993, unless C of 40 CFR part 261; but shall not in- otherwise noted. clude any banned substance. Director means the Director of the Subpart A—Introduction National Science Foundation, or an officer or employee of the Foundation § 671.1 Purpose of regulations. designated by the Director. The purposes of these regulations in Incinerate or Incineration means the part 671 are to protect the Antarctic processing of material by mechanisms environment and dependent and associ- that (1) involve the control of combus- ated ecosystems, to preserve Antarc- tion air and/or fuel so as to maintain tica’s value as an area for the conduct adequate temperature for efficient of scientific research, and to imple- combustion; (2) contain the combustion ment the Antarctic Conservation Act reaction in an enclosed device with suf- of 1978, Public Law 95–541, consistent ficient residence time and mixing for with the provisions of the Protocol on complete processing; and (3) control Environmental Protection to the Ant- emission of gaseous or particulate arctic Treaty, signed in Madrid, Spain, combustion products. on October 4, 1991. Master permit means a permit issued to a federal agency, or its agents or § 671.2 Scope. contractors, or any other entity, covering activities conducted in connec- These regulations in part 671 apply to tion with USAP or other group activi- any U.S. citizen’s use or release of a ties in Antarctica. banned substance, designated pollutant NSF or Foundation means the Na- or waste in Antarctica. tional Science Foundation. [58 FR 34719, June 29, 1993, as amended at 59 Open burning means combustion of FR 37438, July 22, 1994] any material by means other than incineration. § 671.3 Definitions. Permit means a permit issued pursu- (a) Definitions. In this part: ant to subpart C of this part.

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Private permit means any permit ferent than their initial use, provided other than a master permit. such substances are stored in a manner Protocol means the Protocol on Envi- that will prevent their dispersal into ronmental Protection to the Antarctic the environment, and further provided Treaty, signed by the United States in that they are recycled, reused or dis- Madrid on October 4, 1991, and any and posed of in accordance with the provi- all Annexes thereto, as amended or sions of this part within three years. supplemented from time to time. Recycling includes, but is not limited Release means any spilling, leaking, to, the reuse, further use, reclamation pumping, pouring, emitting, emptying, or extraction of a waste through a discharging, injecting, leaching, dump- process or activity that is separate ing, burying or disposing of a sub- from the process or activity that pro- stance, whether intentionally or acci- duced the waste. dentally. (b) Pollutants, generally. All banned Station means McMurdo Station, substances, designated pollutants and Palmer Station, Amundsen-Scott waste shall be considered pollutants for South Pole Station and any other per- purposes of the Antarctic Conservation manent USAP facility in Antarctica Act. designed to accommodate at least 50 persons at any one time. Subpart B—Prohibited Acts, Substance means any gas, liquid, or solid, or mixture thereof, including bi- Exceptions ological material. § 671.4 Prohibited acts. Treaty means the Antarctic Treaty signed in Washington, D.C., on Decem- Unless one of the exceptions stated in ber 1, 1959. § 671.5 is applicable, it is unlawful for United States means the several any U.S. citizen to: States of the Union, the District of Co- (a) Use or release any banned sub- lumbia, the Commonwealth of Puerto stance in Antarctica; Rico, American Samoa, the Virgin Is- (b) Use or release any designated pol- lands, Guam and the Trust Territory of lutant in Antarctica, except pursuant the Pacific Islands, including the Fed- to a permit issued by NSF under sub- erated States of Micronesia and the part C of this part; Commonwealth of the Northern Mar- (c) Release any waste in Antarctica, iana Islands. except pursuant to a permit issued by United States Antarctic Program or NSF under subpart C of this part; or USAP means the United States na- (d) Violate any term or condition of a tional program in Antarctica. permit issued by NSF under subpart C U.S. citizen means any individual who of this part, or any term or condition is a citizen or national of the United of any of the regulations issued under States; any corporation, partnership, this part. trust, association, or other legal entity existing or organized under the laws of § 671.5 Exceptions any of the United States; and any de- A permit shall not be required for partment agency or other instrumen- any use or release of designated pollut- tality of the Federal government or of ants or waste allowed under the Act to any State, and any officer, employee, Prevent Marine Pollution from Ships or agent of such instrumentality. (33 U.S.C. 1901 et seq.), as amended, or Use means to use, generate or create for any shipboard use of banned sub- a substance, or to import a substance stances or designated pollutants, pro- into Antarctica, but does not include vided such substances are not removed the shipboard use of a substance, pro- from the vessel in Antarctica. vided that substance is not released or removed from the vessel. Waste means any substance that will Subpart C—Permits no longer be used for any useful purpose, but does not include substances § 671.6 Applications for permits. to be recycled in Antarctica, or sub- (a) General content of permit applica- stances to be reused in a manner dif- tions. Each application for a permit

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shall be dated and signed by the appli- formation as he determines is relevant cant, and shall include the following to the processing and evaluation of the information: application. (1) The applicant’s name, address and (d) Publication of permit applications. telephone number, the business or in- The Director shall publish notice in the stitutional affiliation of the applicant, FEDERAL REGISTER of each application or the name, address and telephone for a permit and the proposed condi- number of the president, principal offi- tions of its issuance (including dura- cer or managing partner of the appli- tion). The notice shall invite the sub- cant, as applicable; mission by interested parties, the Envi- (2) A description of the types, ex- ronmental Protection Agency and pected concentrations and volumes of other federal agencies, within 30 days wastes and designated pollutants to be after the date of publication of notice, released in Antarctica; the nature and of written data, comments, or views timing of such releases; arrangements with respect to the application. Infor- for waste management, including, mation received by the Director as a without limitation, plans for waste re- part of any application shall be avail- duction, minimization, treatment and able to the public as a matter of public processing, recycling, storage, trans- record. portation and disposal; arrangements for training and educating personnel to [58 FR 34719, June 29, 1993, as amended at 59 FR 37438, July 22, 1994] comply with these waste management requirements and procedures, and ar- § 671.7 General issuance criteria. rangements for monitoring compliance; and other arrangements for mini- (a) Upon receipt of a complete and mizing and monitoring the environ- properly executed application for a per- mental impacts of proposed operations mit, the Director will decide whether and activities; and on what conditions he will issue a (3) A description of the types, ex- permit. In making this decision, the pected concentrations and volumes of Director will carefully consider any designated pollutants to be used in comments or suggestions received from Antarctica; the nature and timing of interested parties, the Environmental such uses; the method of storage of des- Protection Agency and other federal ignated pollutants; and a contingency agencies pursuant to § 671.6(d), and will plan for controlling releases in a man- determine whether the permit re- ner designed to minimize any resulting quested meets the objectives of the hazards to health and the environment; Act, the Protocol, and the require- (4) The desired effective date and du- ments of these regulations. ration of the permit; and (b) Permits authorizing the use or re- (5) The following certification: lease of designated pollutants or wastes may be issued only if, based on ‘‘I certify that, to the best of my knowl- relevant available information, the Di- edge and belief, and based upon due inquiry, rector determines that such use or re- the information submitted in this applica- lease will not pose a substantial hazard tion for a permit is complete and accurate. Any knowing or intentional false statement to health or the environment, taking will subject me to the criminal penalties of into account available information on 18 U.S.C. 1001.’’ the possible cumulative impact of multiple releases. (b) Address to which application should be sent. Each application shall be in § 671.8 Permit administration. writing, and sent to: (a) Issuance of permits. The Director Permits Office, Office of Polar Programs, Na- may approve an application for a per- tional Science Foundation, 4201 Wilson mit in whole or in part, and may condi- Boulevard, Arlington, VA 22230. tion such approval upon compliance (c) Sufficiency of application. The suf- with additional terms and conditions. ficiency of the application shall be de- Permits shall be issued in writing, termined by the Director. The Director shall be signed by the Director, shall may waive any requirement for infor- specify duration, and shall contain mation, or require such additional in- such terms and conditions as may be

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established by the Director and as are tity and cause of the release, and plans consistent with the Act and this part. for remediation; (b) Denial. An applicant shall be noti- (ii) The identity and quantity of all fied in writing of the denial of any per- designated pollutants removed from mit request or part of a request, and Antarctica or otherwise disposed of, the reason for such denial. If author- and the method of disposal; and ized in the notice of denial, the appli- (iii) Any other violations of the cant may submit further information, terms and conditions of their permits. or reasons why the permit should not (2) The Director may also require be denied. Such further submissions permit holders to file reports of activi- shall constitute amendments of the ap- ties conducted under their permits. plication. Such reports shall be submitted to the (c) Amendment of applications or per- Director not later than June 30 for the mits. An applicant or permit holder de- preceding 12 month period ending May siring to have any term or condition of 31. his application or permit modified must submit full justification and sup- § 671.10 Review, modification, suspen- porting information in conformance sion, and revocation. with the provisions of this part. Any (a) The Director may modify, suspend application for modification of a per- or revoke, in whole or in part, any permit that involves a material change mit issued under this part: beyond the terms originally requested (1) In order to make the permit con- will be subject to the same procedures sistent with any change to any regula- as a new application. tion in this part made after the date of (d) Public notice of issuance or denial. issuance of the permit; Within 10 days after the date of the (2) If there is any change in condi- issuance or denial of a permit, the Di- tions which makes the permit incon- rector shall publish notice of the sistent with the Act and any regulation issuance or denial in the FEDERAL REG- in this part; or ISTER, including the conditions of (3) In any case in which there has issuance or basis for denial, as appro- been any violation of any term or con- priate. dition of the permit, any regulation in this part, or any provision of the Act. § 671.9 Conditions of permit. (b) The Director shall review all un- (a) Conditions. All permits issued pur- expired permits issued under this part suant to subpart C of this part shall be at least biennially to determine wheth- conditioned upon compliance with the er those permits should be modified, relevant provisions of the ACA, the suspended or revoked as set forth in Treaty, the Protocol, such specific con- paragraph (a) of this section. ditions or restrictions as may be im- (c) Whenever the Director proposes posed by the Director under § 671.7, and any modifications, suspensions or rev- the provisions of subpart D of this part. ocations of a permit under this § 671.10, (b) Possession of permits. Permits the permittee shall be afforded the op- issued under this part, or copies of portunity, after due notice, for a hear- them, must be in the possession of per- ing by the Director with respect to sons to whom they are issued or their such proposed modification, suspen- agents when conducting the authorized sion, or revocation. If a hearing is reaction. Any permit issued shall be quested, the action proposed by the Di- shown to the Director or to any other rector shall not take effect before a de- person with enforcement authority cision is issued by him after the hear- upon request. ing, unless the proposed action is taken (c)(1) Reports. Permit holders must by the Director to meet an emergency provide the Director with written re- situation. ports of: (d) Notice of the modification, sus- (i) Any non-permitted release of des- pension, or revocation of any permit ignated pollutants or waste within shall be published in the FEDERAL REG- fourteen days after the occurrence of ISTER within 10 days from the date of such release, including the date, quan- the Director’s decision.

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Subpart D—Waste Management (iv) Inspected at least weekly for leakage and deterioration. All inspec- § 671.11 Waste storage. tions must be appropriately docu- (a) Pending the treatment, disposal mented. or removal of any wastes pursuant to (5) Tank systems used for storing § 671.12, all wastes shall be contained, Antarctic hazardous wastes must be in confined or stored in a manner that good, non-leaking condition with suffi- will prevent dispersal into the environ- cient structural integrity for the stor- ment; ing of hazardous wastes; and systems (b) All Antarctic hazardous wastes must be inspected weekly to detect generated at or transported to any corrosion or releases of waste and to USAP station may be temporarily collect data from monitoring and leak stored at such station prior to the detection equipment, to the extent treatment, disposal or removal of any available, to ensure that they are func- wastes pursuant to § 671.12, provided all tioning properly. All inspections must such Antarctic hazardous waste is be appropriately documented. Prior to stored in either closed containers or the expiration of the 15 month period tanks labeled to indicate their con- referred to in § 671.11(b)(1), all Ant- tents and the beginning date of accu- arctic hazardous wastes shall be treat- mulation of such waste, and further ed or removed from Antarctica in ac- provided the following conditions are cordance with § 671.12. satisfied: (6) Ignitable, reactive or incompat- (1) If Antarctic hazardous wastes, ra- ible wastes shall be properly segregated dioactive wastes, or medical wastes, and protected from sources of ignition are generated at or transported to or reaction, as appropriate. McMurdo Station, they may be tempo- (c) All Antarctic hazardous wastes rarily stored at that station for a pe- generated at a location other than a riod not to exceed 15 months; permanent station may be temporarily (2) If Antarctic hazardous wastes, ra- stored at such location for a period not dioactive wastes, or medical wastes, to exceed 12 months, in closed, non- are generated at or transported to leaking containers marked to indicate South Pole Station, they may be tem- their contents. Such containers must porarily stored at that station while be in good condition and made of or awaiting transport to McMurdo Sta- lined with material which will not tion, for a period not to exceed 15 react with and is otherwise compatible months; with the Antarctic hazardous waste (3) If Antarctic hazardous wastes, ra- stored therein so as not to impair the dioactive wastes, or medical wastes, ability of the container to contain the are generated at or transported to waste. Prior to the expiration of the 12 Palmer Station, they may be tempo- month period referred to above, all rarily stored at that station while such hazardous wastes shall be either: awaiting transport to McMurdo Sta- (1) Treated or processed, disposed of tion or other disposition, for a period or removed from Antarctica pursuant not to exceed 28 months; to § 671.12, or (4) Containers holding Antarctic haz- (2) Removed to a permanent station ardous wastes must be: and temporarily stored at that station (i) In good, non-leaking condition in accordance with paragraph (b) of with sufficient structural integrity for this section. the storage of Antarctic hazardous waste; § 671.12 Waste disposal. (ii) Made of or lined with materials which will not react with, and are oth- (a)(1) The following wastes shall be erwise compatible with, the Antarctic removed from Antarctica: hazardous waste to be stored, so that (i) Radioactive materials; the ability of the containers to contain (ii) Electrical batteries; such waste is not impaired; (iii) Fuel (both liquid and solid); (iii) Stored in a manner that allows (iv) Waste containing harmful levels access for inspection and response to of heavy metals or acutely toxic or emergencies; and harmful persistent compounds;

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(v) Poly-vinyl chloride (PVC), poly- (e) Combustible wastes not removed urethane foam, polystyrene foam, rub- from Antarctica other than wastes re- ber and lubricating oils, treated tim- ferred to in paragraph (a) of this sec- bers and other products containing ad- tion, shall be burnt in incinerators ditives which can produce harmful which reduce harmful emissions or dis- emissions or releases; charges to the maximum extent prac- (vi) All other plastic wastes except ticable and the solid residue of such in- low density polyethylene containers cineration shall be removed from Ant- (such as bags for storing wastes) pro- arctica; provided, however, that USAP vided such containers are incinerated may continue to bury such combustible in accordance with paragraph (e) of wastes in snow pits at South Pole Sta- this section; tion, but must phase out such practices (vii) Solid, non-combustible wastes; before March 1, 1995. Any emission or and discharge standards and equipment (viii) Fuel, oil and chemical drums guidelines which may be recommended that constitute waste. by the Committee for Environmental (2) Notwithstanding paragraph (a)(1) Protection constituted or to be con- of this section, the obligations set stituted pursuant to the Protocol or by forth in paragraphs (a)(1) (vii) and (viii) the Scientific Committee on Antarctic of this section shall not apply if the Di- Research shall be taken into account. rector determines that the removal of (f) Sewage and domestic liquid such wastes by any practicable option wastes and other liquid wastes not re- would cause greater adverse environ- moved from Antarctica in accordance mental impacts than would be caused with other provisions of this section, by leaving them in their existing loca- shall, to the maximum extent prac- tions. ticable, not be disposed of onto sea ice, (b) All liquid wastes other than sew- ice shelves or grounded ice-sheet unless age and domestic liquid wastes and such wastes were generated by stations wastes referred in paragraph (a) of this section shall be removed from Antarc- located inland on ice shelves or on the tica to the maximum extent prac- grounded ice-sheet. In such event, the ticable. wastes may be disposed of in deep ice (c) Sewage and domestic liquid pits if that is the only practicable op- wastes may be discharged directly into tion, provided the ice pits are not lo- the sea, taking into account the as- cated on known ice-flow lines which similative capacity of the receiving terminate at ice-free land areas or in marine environment, and provided that blue ice areas of high ablation. such discharge occurs, wherever prac- (g) No wastes may be disposed of onto ticable, where conditions exist for ini- ice-free areas or into any fresh water tial dilution and rapid dispersal, and system. further provided that large quantities (h) Open burning of wastes is prohib- of such wastes (generated in a station ited at all permanent stations, and where the average weekly occupancy shall be phased out at all other loca- over the austral summer is approxi- tions by March 1, 1994. If it is necessary mately 30 individuals or more) shall be to dispose of waste by open burning treated at least by maceration. If bio- prior to March 1, 1994, allowance shall logical treatment processes are used, be made for the wind direction and the by-product of such treatment may speed and the type of waste to be burnt be disposed of into the sea provided dis- to limit particulate deposition and to posal does not adversely affect the avoid such deposition over areas of spe- local environment. cial biological, scientific, historic, aes- (d) Residues of introduced animal thetic or wilderness significance. carcasses, laboratory culture of micro- (i) Each unauthorized release of organisms and plant pathogens, and in- waste in Antarctic shall be, to the troduced avian products must be re- maximum extent practicable, promptly moved from Antarctica unless incinerated, autoclaved or otherwise steri- cleaned up by the person responsible lized. for such release.

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§ 671.13 Waste management for the (1) Remove any structure designated USAP. as a historic site or monument; or (a) In order to provide a basis for (2) Remove any structure or waste in tracking USAP wastes, and to facili- circumstances where the removal tate studies aimed at evaluating the would result in greater adverse envi- environmental impacts of scientific ac- ronmental impact than leaving the tivity and logistic support, the USAP structure or waste in its existing loca- shall classify its wastes in one of the tion. following categories: (f) USAP shall circulate waste man- (1) Sewage and domestic liquid agement plans and inventories de- wastes; scribed in this section in accordance (2) Other liquid wastes and chemi- with the requirements of the Treaty cals, including fuels and lubricants; and the Protocol. (3) Solid wastes to be combusted; (4) Other solid wastes; and (5) Radioactive material. Subpart E—Designation of Banned (b) USAP shall prepare and annually Substances; Reclassification review and update a waste manage- of Pollutants ment plan (including plans for waste reduction, storage and disposal) speci- § 671.14 Annual review. fying for each of its permanent sta- The Director shall review the list of tions, field camps and ships (other than banned substances and designated pol- small boats that are part of the oper- lutants at least annually, and may pro- ations of permanent stations or are pose the designation or redesignation otherwise taken into account in exist- of any substance as a banned sub- ing management plans for ships): stance, designated pollutant or other (1) Current and planned waste man- waste, based on the following criteria: agement arrangements, including final (a) If the Director determines that a disposal; substance, including a designated pol- (2) Current and planned arrangement lutant, poses a substantial immediate for assessing the environmental effects hazard to health or the environment of waste and waste management; and such hazard cannot be eliminated (3) Other efforts to minimize environ- through waste management practices mental effects of wastes and waste or other methods, or if the Parties to management; and the Protocol or Treaty agree that a (4) Programs for cleaning up existing substance should be banned from use in waste disposal sites and abandoned Antarctica, the Director may designate work sites. (c) USAP shall designate one or more such substance a banned substance. waste management officials to develop (b) If the Director determines that a and monitor waste management plans substance is liable to create a hazard and ensure that members of expedi- to health or the environment if im- tions receive training so as to limit the properly treated or processed, stored, impact of their activities on the Ant- transported, or disposed of, the Direc- arctic environment, and to inform tor may designate such substance a them of the requirements of the Pro- designated pollutant. tocol and of this part. (c) If the Director determines that a (d) USAP shall, to the extent prac- substance previously designated a ticable, prepare an inventory of loca- banned substance no longer displays tions of past activities (i.e., traverses, the characteristics described in para- fuel depots, field bases, crashed air- graph (a) of this section, the Director craft) so that such locations can be may remove such substance from the taken into account in planning future list of banned substances (to the extent scientific, logistic and waste manage- consistent with the provisions of the ment programs. Protocol), but if the Director deter- (e) USAP shall clean up its past and mines that such substance has the present waste disposal sites on land characteristics described in paragraph and abandoned work sites, except that (b) of this section, it shall be redesig- it shall not be required to: nated a designated pollutant.

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(d) If the Director determines that a gency situations shall be reported substance previously designated a des- promptly to the Director, who shall no- ignated pollutant no longer displays tify the Treaty parties in accordance the characteristics described in para- with the requirements of the Treaty graph (b) of this section, the Director and the Protocol, and publish notice of may remove such substance from the such acts or omissions in the FEDERAL list of designated pollutants. REGISTER. (e) In making the determinations referred to in paragraphs (a) through (d) PART 672—ENFORCEMENT AND of this section, the Director shall take HEARING PROCEDURES into account all relevant new information obtained through monitoring ac- Sec. tivities or otherwise. 672.1 Hearing procedures—Scope of these rules. § 671.15 Publication of preliminary de- 672.2 Definitions. termination 672.3 Powers and duties of the Director; Prior to any designation or redesig- Presiding Official; Office of Polar Pro- nation of substances pursuant to grams. § 671.14 (including removal of such sub- 672.4 Filing, service, and form of pleadings stances from lists of banned substances and documents. or designated pollutants), the Director 672.5 Filing and service of rulings, orders, and decisions. shall publish notice in the FEDERAL 672.6 Appearances. REGISTER of any proposed designation 672.7 Issuance of complaint. or redesignation, including the basis 672.8 Answer to the complaint. therefor. The notice shall invite the 672.9 Motions. submission by interested parties, the 672.10 Default order. Environmental Protection Agency and 672.11 Informal settlement; consent agree- other federal agencies, within 30 days ment and order. after the date of publication of notice, 672.12 Prehearing conference. of written data, comments, or views 672.13 Accelerated decision; decision to dismiss. with respect to such action. 672.14 Scheduling the hearing. 672.15 Evidence. § 671.16 Designation and redesignation 672.16 Objections and offers of proof. of pollutants 672.17 Burden of presentation; burden of After review of any comments or sug- persuasion. gestions received from interested par- 672.18 Filing the transcript. ties, the Environmental Protection 672.19 Proposed findings, conclusions, and Agency and other Federal agencies pur- order. suant to § 671.15, the Director will make 672.20 Initial decision. a final determination to designate and 672.21 Appeal from or review of interlocutory orders or rulings. redesignate various substances as set 672.22 Appeal from or review of initial deci- forth above. Within 10 days after the sion. date of such final determination, the 672.23 Final order on appeal. Director shall publish notice of any ac- 672.24 Maximum civil monetary penalties tion taken in the FEDERAL REGISTER. for violations. Such action shall become effective no AUTHORITY: 16 U.S.C. 2401 et seq., 28 U.S.C. earlier than thirty days following pub- 2461 note. lication of notice. SOURCE: 54 FR 7132, Feb. 16, 1989, unless otherwise noted. Redesignated at 58 FR 34718, Subpart F—Cases of Emergency June 29, 1993.

§ 671.17 Cases of emergency. § 672.1 Hearing procedures—Scope of The provisions of this part shall not these rules. apply in cases of emergency relating to (a) These hearing rules govern all ad- the safety of human life or of ships, judicatory proceedings for the assess- aircraft or other equipment and facili- ment of civil penalties or imposition of ties of high value, or the protection of other sanctions pursuant to the Ant- the environment. Notice of any acts or arctic Conservation Act of 1978, 16 omissions resulting from such emer- U.S.C. 2407; 2404(f); 2401–2412; and

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(b) Other adjudicatory proceedings (j) Hearing means a hearing on the that the Foundation, in its discretion, record open to the public and con- determines are appropriate for han- ducted under these rules. dling under these rules, including pro- (k) Hearing Clerk is the person with ceedings governed by the Administra- whom all pleadings, motions, and other tive Procedure Act requirements for documents required under this subpart ‘‘hearings on the record.’’ 5 U.S.C. 554 are filed. (1982). (l) Initial Decision means the decision (c) Questions arising at any stage of issued by the Presiding Officer based the proceeding which are not addressed upon the official record of the pro- in these rules shall be resolved at the ceedings. discretion of the Director or Presiding (m) Party means any person that par- Officer. ticipates in a hearing as complainant, respondent, or intervenor. § 672.2 Definitions. (n) Permit means a permit issued under section 5 of the Antarctic Con- (a) Throughout these rules, words in servation Act of 1978, 16 U.S.C. section the singular also include the plural, 2404. and words in the masculine gender also (o) Person includes any individual, include the feminine, and vice versa. partnership, association, corporation, (b) Act means the particular statute and any trustee, assignee, receiver or authorizing the initiation of the pro- legal successor thereof; any organized ceeding. group of persons whether incorporated (c) Administrative Law Judge means an or not; and any officer, employee, Administrative Law Judge appointed agent, department, agency or instru- under 5 U.S.C. 3105 (see also Pub. L. 95– mentality of the Federal Government. 251, 92 Stat. 183). of any State or local unit of govern- (d) Complainant means any person au- ment, or of any foreign government. thorized to issue a complaint on behalf (p) Presiding Officer means the attor- of the Agency to persons alleged to be ney designated by the Director to con- in violation of the Act. The complain- duct hearings or other proceedings ant shall not be the Presiding Officer under this subpart. or any other person who will partici- (q) Respondent means any person pro- pate or advise in the decision. ceeded against in the complaint. (e) Complaint means a written com- (r) Terms defined in the Act and not munication, alleging one or more vio- defined in these rules of practice are lations of specific provisions of the used consistent with the meanings Act, Treaties, NSF regulations or a given in the Act. permit promulgated thereunder, issued § 672.3 Powers and duties of the Direc- by the complainant to a person under tor; Presiding Official; Office of this subpart. Polar Programs. (f) Consent Agreement means any writ- (a) Director. The Director of NSF ten document, signed by the parties, shall exercise all powers and duties as containing stipulations or conclusions prescribed or delegated under the Act of fact or law, and a proposed penalty, and these rules. revocation or suspension of a permit, (b) The Director may delegate all or or other sanction. part of his authority. Partial delega- (g) Director means the Director of the tion does not prevent the Presiding Of- National Science Foundation (NSF) or ficer from referring any motion or case his delegatee. to the Director. (h) Final Order means (1) an order (c) Presiding Officer. The Director issued by the Director after an appeal may designate one or more Presiding of an initial decision, accelerated deci- Officers to perform the functions de- sion, a decision to dismiss, or default scribed below. The Presiding Officers order, or (2) an initial decision which shall be attorneys who are permanent becomes a final order. or temporary employees of the Founda- (i) Foundation, Agency, or NSF means tion or some other Federal Agency and the National Science Foundation. may perform other duties compatible

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with their authority as hearing offi- mities listed in paragraph (e)(1) of this cers. Administrative Law Judges may section. The Director, should he with- perform the functions of Presiding Offi- draw or disqualify himself, shall assign cers. The Presiding Officer shall have the Deputy Director to be his replace- performed no prosecutorial or inves- ment. tigatory functions in connection with (f) Office of Polar Programs. The Office any matter related to the hearing. of Polar Programs (OPP) manages and (d) The Presiding Officer shall con- operates the national program in Ant- duct a fair and impartial proceeding, arctica, including administration of assure that the facts are fully elicited, adjudicate all issues, and avoid delay. the Antarctic Conservation Act (ACA) The Presiding Officer shall have au- permit system. OPP is responsible for thority to: investigating alleged violations of the (1) Conduct administrative hearings ‘‘prohibited acts’’ section of the ACA under these rules of practice; and alleged noncompliance with ACA (2) Rule upon motions, requests, and permits. OPP will act as the official offers of proof, dispose of procedural re- complainant in all proceedings under quests, and issue all necessary orders; the ACA governed by these rules. OPP (3) Administer oaths and affirmations may delegate all or part of its inves- and take affidavits; tigatory duties to other appropriate (4) Examine witnesses and receive NSF employees, other qualified federal documentary or other evidence; employees, or consultants. OPP will (5) For good cause, upon motion or prepare complaints with the assistance sua sponte, order a party, or an officer of designated prosecuting attorneys or agent thereof, to produce testimony, within NSF’s Office of the General documents, or other nonprivileged evi- Counsel, other qualified federal attor- dence, and failing the production there- neys, or other appropriate legal rep- of without good cause being shown, resentative selected jointly by OPP draw adverse inferences against that party; and OGC. The designated prosecuting (6) Admit or exclude evidence; attorney will represent OPP in all pro- (7) Hear and decide questions of facts, ceedings governed by these rules. law or discretion; (g) The Office of Polar Programs, act- (8) Require parties to attend con- ing on behalf of the Director, may des- ferences for the settlement or sim- ignate qualified individuals as enforce- plification of the issues, or the expedi- ment officers empowered to execute all tion of facts, law or discretion; of the law enforcement functions set (9) Issue subpoenas authorized by the forth in section 10 of the ACA, 16 U.S.C. Act; and 2409, as well as any other appropriate (10) Take all actions necessary for actions ancillary to those statutory the maintenance of order and for the duties. OPP will provide each enforce- efficient, fair and impartial adjudica- ment officer with official enforcement tion of issues arising in proceedings credentials for identification purposes governed by these rules. and use during execution of official du- (e) Disqualification; Withdrawal. (1) ties. The Presiding Officer may not participate in any matter in which he (i) has OPP may also designate knowledgeable a financial interest or (ii) has any rela- individuals to provide educational and tionship with a party or with the sub- other information regarding the Ant- ject matter which would make it inap- arctic to tour operators, their clients propriate for him to act. Any party and employees, and other visitors to may at any time by motion made to the Antarctic. the Director, or his delegatee, request (h) The Office of the General Counsel, that the Presiding Officer be disquali- with the concurrence of the Office of fied from the proceeding. Polar Programs, may refer appropriate (2) If the Presiding Officer is disquali- cases to the Department of Justice for fied or withdraws from the proceeding, the Director shall assign a qualified replacement who has none of the infir-

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possible prosecution of criminal viola- by Federal or State law to receive serv- tions of the Antarctic Conservation ice of process. Act. (iii) Service upon an officer or agency of the United States shall be made by [54 FR 7132, Feb. 16, 1989. Redesignated at 58 delivering a copy of the complaint to FR 34718, June 29, 1993, and amended at 59 FR 37438, July 22, 1994; 61 FR 51022, Sept. 30, 1996; the officer or agency, or in any manner 66 FR 42451, Aug. 13, 2001] prescribed for service by applicable regulations. If the agency is a corpora- § 672.4 Filing, service, and form of tion, the complaint shall be served as pleadings and documents. prescribed in paragraph (b)(1)(ii) of this section. (a) Filing of pleadings and documents. (iv) Service upon a State or local (1) Except as otherwise provided, the unit of government, or a State or local original and one copy of the complaint, officer, agency, department, corpora- and the original of the answer and of tion or other instrumentality shall be all other documents served in the pro- made by serving a copy of the com- ceeding, shall be filed with the Hearing plaint in the manner prescribed by the Clerk. law of the State for the service of proc- (2) A certificate of service shall ac- ess on any such persons, or company each document filed or (A) If upon a State or local unit of served. Except as otherwise provided, a government, or a State or local depart- party filing documents with the Hear- ment, agency, corporation or other ining Clerk, after the filing of the an- strumentality, by delivering a copy of swer, shall serve copies thereof upon the complaint to the chief executive of- all other parties and the Presiding Offi- ficer thereof; or cer. The Presiding Officer shall main- (B) If upon a State or local officer by tain a duplicate file during the course delivering a copy to such officer. of the proceeding. (v) Proof of service of the complaint (3) When the Presiding Officer cor- shall be made by affidavit of the person responds directly with the parties, he making personal service, or by prop- shall file the original of the cor- erly executed return receipt. Such respondence with the Hearing Clerk, proof of service shall be filed with the maintain a copy in the duplicate file, complaint immediately upon comple- and send a copy to all parties. Parties tion of service. who correspond directly with the Pre- (2) The first page of every pleading, siding Officer shall in addition to serv- letter, or other document shall contain ing all other parties send a copy of all a caption identifying the respondent such correspondence to the Hearing and the docket number which is exhib- Clerk. A certificate of service shall ac- ited on the complaint. company each document served under (3) The original of any pleading, let- this subsection. ter, or other document (other than ex- (b) Service of pleadings and docu- hibits) shall be signed by the party fil- ments—(1) Service of complaint. (i) Serv- ing it or by his representative. The sig- ice of a copy of the signed original of nature constitutes a representation by the complaint, together with a copy of the signer that he has read the plead- these rules, may be made personally or ing, letter or other document, that to by certified mail, return receipt re- the best of his knowledge, information quested, on the respondent or his rep- and belief, the statements made there- resentative. in are true, and that it is not inter- (ii) Service upon a domestic or for- posed for delay. eign corporation or upon a partnership (4) The initial document filed by any or other unincorporated association person shall contain his name, address which is subject to suit under a com- and telephone number. Any changes in mon name shall be made by personal this information shall be commu- service or certified mail, as prescribed nicated promptly to the Hearing Clerk, by paragraph (b)(1)(i) of this section, Presiding Officer, and all parties to the directed to an officer, partner, a man- proceeding. A party who fails to fur- aging or general agent, or to any other nish such information and any changes person authorized by appointment or thereto shall be deemed to have waived

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his right to notice and service under ecutorial or investigative function in these rules. the proceeding or other factually related proceeding, or with any rep- § 672.5 Filing and service of rulings, resentative of such person. Any ex orders, and decisions. parte memorandum or other commu- (a) All rulings, orders, decisions, and nication addressed to the Presiding Of- other documents issued by the Pre- ficer during the pendency of the pro- siding Officer shall be filed with the ceeding and relating to the merits Hearing Clerk. Copies of all such docu- thereof, by or on behalf of any party, ments shall be served personally, or by shall be regarded as argument made in certified mail, return receipt re- the proceeding and shall be served upon quested, upon all parties. all other parties. The Presiding Officer (b) Computation. In computing any shall give the other parties an oppor- period of time prescribed or allowed in tunity to reply. these rules, except as otherwise pro- (f) Subject to the provisions of law vided, computation is by calendar days restricting the public disclosure of con- and does not include the day of the fidential information, any person may, event from which the designated period during Agency business hours, inspect begins to run. When a stated time ex- and copy any document filed in any pires on a Saturday, Sunday or legal proceeding. Such documents shall be holiday, the stated time period shall be made available by the Hearing Clerk. extended to include the next business (g) The person seeking copies of any day. documents filed in a proceeding shall (c) Extensions of time. The Presiding bear the cost of duplication. Upon a Officer may grant an extension of time formal request the Agency may waive for the filing of any pleading, docu- this cost in appropriate cases. ment, or motion (1) upon timely motion of a party to the proceeding, for § 672.6 Appearances. good cause shown, and after consider- (a) Appearances. Any party may ap- ation of prejudice to other parties, or pear in person or by counsel or other (2) upon his own motion. Such a mo- representative. A partner may appear tion by a party may only be made after on behalf of a partnership and an offi- notice to all other parties, unless the cer may appear on behalf of a corpora- movant can show good cause why serv- tion. Persons who appear as counsel or ing notice is impracticable. The mo- other representative must conform to tion shall be filed in advance of the the standards of conduct and ethics re- date on which the pleading, document quired of practitioners before the or motion is due to be filed, unless the courts of the United States. failure of a party to make timely mo- (b) Intervention. A motion for leave to tion for extension of time was the re- intervene in any proceeding conducted sult of excusable neglect. under these rules must set forth the (d) Service by mail. Service of the grounds for the proposed intervention, complaint is complete when the return the position and interest of the mov- receipt is signed. Service of all other ant, and whether the intervention will pleadings and documents is complete cause delay. Any person already a upon mailing. Where a pleading or doc- party to the proceeding may file an an- ument is served by mail, five (5) days swer to a motion to intervene, making shall be added to the time allowed by specific reference to the factors set these rules for the filing of a responsive forth in the foregoing sentence and pleading or document. paragraph (c) of this section, within (e) Ex parte discussion of proceeding. ten (10) days after service of the mo- At no time after the issuance of the tion for leave to intervene. complaint shall the Presiding Officer, (c) A motion for leave to intervene in or any other person who is likely to ad- a proceeding must ordinarily be filed vise these officials in the decision on before the first prehearing conference, the case, discuss ex parte the merits of or if there is no such conference, prior the proceeding with any interested per- to the setting of a time and place for a son outside the Agency, with any Agen- hearing. Any motion filed after that cy staff member who performs a pros- time must include, in addition to the

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information set forth in paragraph (b) under the ACA, he may institute a proof this section, a statement of good ceeding for the assessment of a civil cause for the failure to file in a timely penalty or other sanctions by issuing a manner. Agreements, arrangements, complaint under the Act and these and other matters previously resolved rules. during the proceeding are binding on (b) If the complainant has reason to the intervenor. believe that (1) a permittee violated (d) Disposition. The Presiding Officer any term or condition of the permit, or may grant leave to intervene only if (2) a permittee misrepresented or inac- the movant demonstrates that (1) his curately described any material fact in presence in the proceeding would not the permit application or failed to dis- unduly prolong or otherwise prejudice close all relevant facts in the permit the adjudication of the rights of the application, or (3) other good cause ex- original parties; (2) the movant will be ists for such action, he may institute a adversely affected by a final order; and proceeding for the revocation or sus- (3) the interests of the movant are not pension of a permit by issuing a com- being adequately represented by the plaint under the Act and these rules. A original parties. The intervenor be- complaint may seek suspension or rev- comes a full party to the proceeding ocation of a permit in addition to the upon the granting of leave to inter- assessment of a civil penalty. vene. (c) Content and amendment of the com- (e) Amicus curiae. Persons not parties plaint. All complaints shall include: to the proceeding who wish to file (1) A statement reciting the sec- briefs may so move. The motion shall tion(s) of the Act, regulations, and/or identify the interest of the applicant permit authorizing the issuance of the and shall state the reasons why the complaint; proposed amicus brief is desirable. If (2) A concise statement of the factual the motion is granted, the Presiding basis for all alleged violations; and Officer or Director shall issue an order (3) Notice of the respondent’s right to setting the time for filing such brief. request a hearing on any material fact An amicus curiae is eligible to partici- contained in the complaint, or on the pate in any briefing after his motion is appropriateness of the proposed sanc- granted, and shall be served with all tion. briefs, motions, and orders relating to (d) Each complaint for the assess- issues to be briefed. ment of a civil penalty shall also in- (f) Consolidation. The Presiding Offi- clude: cer may, by motion or sua sponte, con- (1) Specific reference to each provi- solidate any or all matters at issue in sion of the Act and implementing regu- two or more proceedings docketed lations which respondent is alleged to under these rules where (1) there exists have violated; common parties or common questions (2) The amount of the civil penalty of fact or law; (2) consolidation would which is proposed to be assessed; and expedite and simplify consideration of (3) A statement explaining the rea- the issues; and (3) consolidation would soning behind the proposed penalty; not adversely affect the rights of par- (e) Each complaint for the revocation ties engaged in otherwise separate pro- or suspension of a permit shall also in- ceedings. clude: (g) Severance. The Presiding Officer (1) Specific reference to each term or may, by motion or sua sponte, for good condition of the permit which the re- cause shown order any proceedings sev- spondent is alleged to have violated, to ered with respect to any or all parties each alleged inaccuracy or misrepre- or issues. sentation in respondent’s permit application, to each fact which the respond- § 672.7 Issuance of complaint. ent allegedly failed to disclose in his (a) General. If the complainant has permit application, or to other reasons reason to believe that a person has vio- which form the basis for the complaint; lated any provision of the Antarctic (2) A request for an order to either Conservation Act, other Act or attend- revoke or suspend the permit and a ant regulations, or a permit issued statement of the terms and conditions

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of any proposed partial suspension or Any such answer to the complaint revocation; and must be filed with the Hearing Clerk (3) A statement indicating the basis within twenty (20) days after service of for recommending the revocation, rath- the complaint. er than the suspension, of the permit, (b) Contents of the answer. The answer or vice versa. shall clearly and directly admit, deny A copy of these rules shall accom- or explain each of the factual allega- pany each complaint served. tions contained in the complaint. If re- (f) Derivation of proposed civil penalty. spondent asserts he has no knowledge The complainant shall determine the of a particular factual allegation, the dollar amount of the proposed civil allegation is deemed denied. The an- penalty in accordance with any criteria swer shall also state (1) the cir- set forth in the Act and with any civil cumstances or arguments which are al- penalty guidance issued by NSF. leged to constitute the grounds of de- (g) Amendment of the complaint. The fense; (2) the facts which respondent in- complainant may amend the complaint tends to place at issue; and (3) whether once as a matter of right at any time a hearing is requested. before the answer is filed. Otherwise (c) Request for hearing. A hearing the complainant may amend the com- upon the issues raised by the complaint plaint only upon motion granted by the and answer shall be held upon request Presiding Officer. Respondent shall of respondent in the answer. The Pre- have twenty (20) additional days from siding Officer may deem the right to a the date of service of the amended hearing waived if it is not requested by complaint to file his answer. respondent. In addition, a hearing may (h) Withdrawal of the complaint. The be held at the discretion of the Pre- complainant may withdraw the com- siding Officer, sua sponte, to examine plaint, or any part thereof, without issues raised in the answer. prejudice one time before the answer has been filed. After one withdrawal (d) Failure to admit, deny, or explain. before the filing of an answer, or after Failure of respondent to admit, deny, the filing of an answer, the complain- or explain any material factual allega- ant may withdraw the complaint, or tion contained in the complaint con- any part thereof, without prejudice, stitutes an admission of the allegation. only upon motion granted by the Pre- (e) Amendment of the answer. The re- siding Officer. spondent may amend the answer to the (i) Complainant, in cooperation with complaint upon motion granted by the the Office of General Counsel, may Presiding Officer. refer cases to the Department of Jus- tice for possible criminal prosecution if § 672.9 Motions. there is reason to believe that respond- (a) General. All motions, except those ent willfully violated the Antarctic made orally on the record during a Conservation Act or its attendant reg- hearing, shall (1) be in writing; (2) state ulations. Such referral does not auto- the basis or grounds with particularity; matically preclude NSF from pro- (3) set forth the relief or order sought; ceeding administratively under the Act and (4) be accompanied by any affi- and these rules against the same re- davit, certificate, or other evidence or spondent. legal memorandum relied upon. (b) Response to motions. A party must § 672.8 Answer to the complaint. file a response to any written motion (a) General. Where respondent (1) con- within ten (10) days after service of tests any material fact upon which the such motion, unless the Presiding Offi- complaint is based; (2) contends that cer allows additional time. The re- the amount of the penalty proposed in sponse shall be accompanied by any af- the complaint or the proposed revoca- fidavit, certificate, other evidence, or tion or suspension, as the case may be, legal memorandum relied upon. If no is inappropriate; or (3) contends that response is filed within the designated he is entitled to judgment as a matter period, the Presiding Officer may deem of law, he shall file a written answer to the parties to have waived any objec- the complaint with the Hearing Clerk. tion to the granting of the motion. The

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Presiding Officer may also set a short- order shall constitute the initial deci- er time for response, or make such sion, and shall be filed with the Hear- other appropriate orders concerning ing Clerk. the disposition of motions. (c) Contents of a default order. A de- (c) Ruling on Motions. The Presiding fault order shall include findings of Officer shall rule on all motions, unless fact showing the grounds for the order, otherwise provided in these rules. The conclusions regarding all material Presiding Officer may permit oral ar- issues of law or discretion, and the pen- gument if he considers it necessary or alty which is recommended, or the desirable. terms and conditions of permit revocation or suspension, or other sanctions. § 672.10 Default order. (d) The Presiding Officer may set (a) Default. The Presiding Officer aside a default order for good cause may find a party in default (1) after shown. motion, upon failure to file a timely answer to the complaint; (2) after mo- § 672.11 Informal settlement; consent tion or sua sponte, upon failure to com- agreement and order. ply with a prehearing or hearing order (a) Settlement policy. The Agency en- of the Presiding Officer; or (3) after courages settlement of a proceeding at motion or sua sponte, upon failure to any time if the settlement is con- appear at a conference or hearing with- sistent with the provisions and objec- out good cause being shown. No finding tives of the Act and applicable regula- of default on the basis of a failure to tions. The respondent may confer with appear at a hearing shall be made complainant concerning settlement against the respondent unless the com- whether or not the respondent requests plainant presents sufficient evidence to a hearing. Settlement conferences the Presiding Officer to establish a shall not affect the respondent’s obli- prima facie case against the respond- gation to file a timely answer. ent. Any motion for a default order (b) Consent agreement. The parties shall include a proposed default order shall forward a written consent agree- and shall be served upon all parties. ment and a proposed consent order to The alleged defaulting party shall have the Presiding Officer whenever settle- twenty (20) days from service to reply ment or compromise is proposed. The to the motion. Default by respondent consent agreement shall state that, for constitutes, for purposes of the pending the purpose of this proceeding, reaction only, an admission of all facts spondent (1) admits the jurisdictional alleged in the complaint and a waiver allegations of the complaint; (2) admits of respondent’s right to a hearing on the facts stipulated in the consent such factual allegations. If the com- agreement or neither admits nor denies plaint is for the assessment of a civil specific factual allegations contained penalty, the penalty proposed in the in the complaint; and (3) consents to complaint shall become due and pay- the assessment of a stated civil penalty able by respondent without further or to the stated permit revocation or proceedings sixty (60) days after a final suspension, or to other sanctions or ac- order issued upon default. If the com- tions in mitigation. The consent agree- plaint is for the revocation or suspen- ment shall include any and all terms of sion of a permit, the conditions of rev- the agreement, and shall be signed by ocation or suspension proposed in the all parties or their counsel or rep- complaint shall become effective with- resentatives. out further proceedings on the date (c) Consent order. No settlement or designated by the Presiding Officer in consent agreement shall dispose of any his final order issued upon default. De- proceeding under the rules without a fault by the complainant shall result in consent order from the Director or his the dismissal of the complaint with delegatee. Before signing such an prejudice. order, the Director or his delegatee (b) Procedures upon default. When the may require that the parties to the set- Presiding Officer finds a default has oc- tlement appear before him to answer curred, he shall issue a default order inquiries relating to the consent agree- against the defaulting party. This ment or order.

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(d) Actions by respondent to clean, pro- conferences, no transcript of any pre- tect, enhance, or benefit the environment. hearing conferences shall be made un- NSF may accept from respondent envi- less ordered by the Presiding Officer ronmentally beneficial actions, in lieu upon motion of a party or sua sponte. of penalties, in whole or in part, as- The Presiding Officer shall prepare and sessed under the Antarctic Conserva- file for the record a written summary tion Act. An assessment of the mone- of the action taken at the conference. tary value of any action in mitigation The summary shall incorporate any shall be made before that action is in- written stipulations or agreements of corporated as a part of any consent the parties and all rulings and appro- agreement and order. priate orders containing directions to the parties. § 672.12 Prehearing conference. (d) Unavailability of a prehearing con- (a) Purpose of prehearing conference. ference. If a prehearing conference is Unless a conference appears unneces- unnecessary or impracticable, the Pre- sary, the Presiding Officer, at any time siding Officer, on motion or sua sponte, before the hearing begins, shall direct may conduct a telephonic conference the parties and their counsel or other or direct the parties to correspond with representatives to appear at a con- him to accomplish any of the objec- ference before him to consider: tives set forth in this section. (1) The settlement of the case; (e) Other discovery. (1) Except as pro- (2) The simplification of issues and vided by paragraph (b) of this section, stipulation of facts not in dispute; further discovery shall be permitted (3) The necessity or desirability of only upon determination by the Pre- amendments to pleadings; siding Officer that (i) such discovery (4) The exchange of exhibits, docu- will not in any way unreasonably delay ments, prepared testimony, and admis- the proceeding; (ii) the information to sions or stipulations of fact which will be obtained is not otherwise obtain- avoid unnecessary proof; able; and (iii) such information has sig- (5) The limitation of the number of nificant probative value. expert or other witnesses; (2) The Presiding Officer shall order (6) Setting a time and place for the depositions upon oral questions only hearing; and upon a showing of good cause and upon (7) Any other matters which may ex- a finding that (i) the information pedite the proceeding. sought cannot be obtained by alter- (b) Exchange of witness lists and docu- native methods; or (ii) there is substan- ments. Unless otherwise ordered by the tial reason to believe that relevant and Presiding Officer, each party at the probative evidence may otherwise not prehearing conference shall make be preserved for presentation by a wit- available to all other parties (1) the ness at the hearing. names of the expert and other wit- (3) Any party may request further nesses he intends to call, together with discovery by motion. Such a motion a brief narrative summary of their ex- shall set forth (i) the circumstances pected testimony, and (2) copies of all warranting the taking of the discovery; documents and exhibits which each (ii) the nature of the information ex- party intends to introduce into evi- pected to be discovered; and (iii) the dence. Documents and exhibits shall be proposed time and place where it will marked for identification as ordered by be taken. If the Presiding Officer deter- the Presiding Officer. The Presiding Of- mines that the motion should be grant- ficer may exclude from evidence any ed, he shall issue an order granting dis- document or testimony not disclosed covery, with any qualifying conditions at the prehearing conference. If the and terms. Presiding Officer permits the submittal (4) When the information sought to of new evidence, he will grant parties a be obtained is within the control of one reasonable opportunity to respond. of the parties, failure to comply with (c) Record of the prehearing conference. an order issued pursuant to this para- No transcript of a prehearing con- graph may lead to (i) the inference that ference relating to settlement shall be the information to be discovered would made. With respect to other prehearing be adverse to the party from whom the

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information was sought; or (ii) the and place for the hearing. The Pre- issuance of a default. siding Officer may issue the notice of hearing at any appropriate time, but § 672.13 Accelerated decision; decision not later than twenty (20) days prior to to dismiss. the date set for the hearing. (a) General. The Presiding Officer, (c) Postponement of hearing. The Pre- upon motion of any party or sua siding Officer will not grant a request sponte, may at any time render an ac- for postponement of a hearing except celerated decision in favor of the com- upon motion and for good cause shown. plainant or the respondent as to all or any part of the proceeding, without § 672.15 Evidence. further hearing or upon such limited additional evidence, such as affidavits, (a) General. The Presiding Officer as he may require, if no genuine issue shall admit all evidence which is not of material fact exists and a party is irrelevant, immaterial, unduly repeti- entitled to judgment as a matter of law tious, or otherwise unreliable or of lit- regarding all or any part of the pro- tle probative value. Notwithstanding ceeding. In addition, the Presiding Offi- the preceding sentence, evidence relat- cer, upon motion of the respondent, ing to settlement which would be ex- may at any time dismiss an action cluded in the federal courts under Ru1e without further hearing or upon such 408 of the Federal Rules of Evidence is limited additional evidence as he re- inadmissible. In the presentation, ad- quires, if complainant fails to establish mission, disposition, and use of evi- a prima facie case, or if other grounds dence, the Presiding Officer shall pre- show complainant has no right to reserve the confidentiality of trade se- lief. crets and other commercial and finan- (b) Effect. (1) If an accelerated deci- cial information. The confidential or sion or a decision to dismiss is issued trade secret status of any information as to all the issues and claims in the shall not, however, preclude its intro- proceeding, the decision constitutes an duction into evidence. The Presiding initial decision of the Presiding Offi- Officer may review such evidence in cer, and shall be filed with the Hearing Clerk. camera, and issue appropriate protec- (2) If an accelerated decision or a de- tive orders. cision to dismiss is rendered on less (b) Examination of witnesses. Parties than all issues or claims in the pro- shall examine witnesses orally, under ceeding, the Presiding Officer shall de- oath or affirmation, except as other- termine what material facts exist with- wise provided in these rules or by the out substantial controversy and what Presiding Officer. Parties shall have material facts remain controverted in the right to cross-examine a witness good faith. He shall then issue an inter- who appears at the hearing. locutory order specifying the facts (c) Verified statements. The Presiding which appear substantially Officer may admit into the record as uncontroverted, and the issues and evidence, in lieu of oral testimony, claims upon which the hearing will statements of fact or opinion prepared proceed. by a witness. The admissibility of the evidence contained in the statement § 672.14 Scheduling the hearing. shall be subject to the same rules as if (a) When an answer is filed, the Hear- the testimony were produced under ing Clerk shall forward the complaint, oral examination. Before any such the answer, and any other documents statement is read or admitted into evi- filed thus far in the proceeding to the dence, the witness shall deliver a copy Presiding Officer, who will notify the of the statement to the Presiding Offi- parties of his assignment. cer, the reporter, and opposing counsel. (b) Notice of hearing. If the respondent requests a hearing in his answer, or one The witness presenting the statement is ordered by the Presiding Officer, the shall swear to or affirm the statement Presiding Officer shall serve upon the and shall be subject to appropriate oral parties a notice setting forth a time cross-examination.

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(d) Admission of affidavits where the of presenting and of going forward with witness is unavailable. The Presiding Of- any defense to the allegations set forth ficer may admit into evidence affida- in the complaint. The Presiding Officer vits of witnesses who are ‘‘unavail- shall decide all controverted matters able,’’ within the meaning of that term upon a preponderance of the evidence. under Rule 804(a) of the Federal Rules of Evidence. § 672.18 Filing the transcript. (e) Exhibits. Where practicable, an The hearing shall be transcribed ver- original and one copy of each exhibit batim. After the Presiding Officer shall be filed with the Presiding Officer closes the record, the reporter shall for the record and a copy shall be fur- promptly transmit the original and nished to each party. A true copy of certified copies to the Hearing Clerk, any exhibit may be substituted for the and one certified copy directly to the original. Presiding Officer. A certificate of serv- (f) Official notice. Official notice may ice shall accompany each copy of the be taken of any matter judicially no- transcript. The Hearing Clerk shall no- ticeable in the Federal courts and of tify all parties of the availability of other facts within the specialized the transcript and shall furnish the knowledge and experience of the Agen- parties with a copy of the transcript cy. Opposing parties shall be given ade- upon payment of the cost of reproduc- quate opportunity to show that such tion, unless a party can show that the facts are erroneously noticed. cost is unduly burdensome. Any person not a party to the proceeding may ob- § 672.16 Objections and offers of proof. tain a copy of the transcript upon pay- (a) Objection. Any objection con- ment of the reproduction fee, except cerning the conduct of the hearing may for those parts of the transcript or- be made orally or in writing during the dered to be kept confidential by the hearing. The party raising the objec- Presiding Officer. tion must supply a short statement of its grounds. The ruling by the Pre- § 672.19 Proposed findings, conclu- siding Officer on any objection and the sions, and order. reasons given for it shall be part of the Unless otherwise ordered by the Pre- record. An exception to each objection siding Officer, any party may submit overruled shall be automatic and is not proposed findings of fact, conclusions waived by further participation in the of law, and a proposed order, together hearing. with supporting briefs, within twenty (b) Offer of proof. Whenever evidence (20) days after the parties are notified is excluded from the record, the party of the availability of the transcript. offering the evidence may make an The Presiding Officer shall set a time offer of proof, which shall be included by which reply briefs must be sub- in the record. The offer of proof for ex- mitted. All submissions shall be in cluded oral testimony shall consist of a writing, shall be served upon all par- brief statement describing the nature ties, and shall contain adequate ref- of the evidence excluded. The offer of erences to the record and relied-upon proof for excluded documents or exhib- authorities. its shall consist of the insertion in the record of the documents or exhibits ex- § 672.20 Initial decision. cluded. (a) Filing and contents. The Presiding Officer shall issue and file with the § 672.17 Burden of presentation; bur- Hearing Clerk an initial decision as den of persuasion. soon as practicable after the period for The complainant has the burden of filing reply briefs, if any, has expired. going forward with and of proving that The initial decision shall contain find- the violation occurred as set forth in ings of fact, conclusions regarding all the complaint and that the proposed material issues of law or discretion, civil penalty, revocation, suspension, the reasons for the findings and conclu- or other sanction, is appropriate. Fol- sions, a recommended civil penalty as- lowing the establishment of a prima sessment or other sanction, if appro- facie case, respondent has the burden priate, and a proposed final order. Upon

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receipt of an initial decision, the Hear- the motion is denied or the reopened ing Clerk shall forward a copy to all hearing is concluded. parties, and shall send the original, along with the record of the pro- § 672.21 Appeal from or review of in- ceeding, to the Director. terlocutory orders or rulings. (b) Amount of civil penalty. If the Pre- (a) Request for interlocutory orders or siding Officer determines that a viola- rulings. Except as provided in this section has occurred, he shall set the dol- tion, appeals to the Director or, upon lar amount of the recommended civil delegation, to the General Counsel, penalty in the initial decision in ac- shall obtain as a matter of right only cordance with any criteria set forth in from a default order, an accelerated de- the Act, and must consider any civil cision or decision to dismiss, or an ini- penalty guidelines issued by NSF. If tial decision rendered after an evi- the Presiding Officer decides to assess dentiary hearing. Appeals from other a penalty different in amount from the orders or rulings shall lie only if the penalty recommended in the com- Presiding Officer, upon motion of a plaint, he shall set forth in the initial party, certifies such orders or rulings decision the specific reasons for the in- to the Director on appeal. Requests for crease or decrease. The Presiding Offi- such certification shall be filed in writ- cer shall not raise a penalty from that ing within six (6) days of notice of the recommended in the complaint if the ruling or service of the order, and shall respondent has defaulted. state briefly the grounds to be relied (c) Effect of initial decision. The initial upon on appeal. decision of the Presiding Officer shall become the final order of the Agency (b) Availability of interlocutory appeal. within forty-five (45) days after its The Presiding Officer may certify any service upon the parties and without ruling for appeal to the Director when further proceedings unless (1) an appeal (1) the order or ruling involves an im- to the Director is filed by a party to portant question of law or policy and the proceedings; or (2) the Director there is substantial grounds for dif- elects, sua sponte, to review the initial ference of opinion; and (2) either (i) an decision. immediate appeal from the order or (d) Motion to reopen a hearing. A mo- ruling will materially advance the ulti- tion to reopen a hearing to take fur- mate resolution of the proceeding, or ther evidence must be made no later (ii) review after the final order is than twenty (20) days after service of issued will be inadequate or ineffective. the initial decision on the parties and (c) Decision. If the Director or the shall (1) state the specific grounds upon General Counsel takes no action within which relief is sought; (2) state briefly thirty (30) days of the certification, the the nature and purpose of the evidence appeal is dismissed. If the Director or to be adduced; (3) show that such evi- the General Counsel decides to hear the dence is not cumulative; and (4) show interlocutory appeal, he shall make good cause why such evidence was not and transmit his findings and conclu- adduced at the hearing. The motion sions to the Presiding Officer. When shall be made to the Presiding Officer the Presiding Officer declines to certify and filed with the Hearing Clerk. Par- an order or ruling to the Director on ties shall have ten (10) days following interlocutory appeal, it may be re- service to respond. The Presiding Offi- viewed by the Director only upon ap- cer shall grant or deny such motion as peal from the initial decision. soon as practicable. The conduct of any (d) Stay of proceedings. The Presiding proceeding which may be required as a Officer may stay the proceedings for an result of the granting of any motion to interlocutory appeal. Proceedings will reopen shall be governed by the provi- not be stayed except in extraordinary sions of the applicable sections of these circumstances. Where the Presiding Of- rules. The filing of a motion to reopen ficer grants a stay of more than thirty a hearing shall automatically stay the running of all time periods specified (30) days, such stay must be separately under these Rules until such time as approved by the Director.

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§ 672.22 Appeal from or review of ini- (d) Argument. The Director may, upon tial decision. request of a party or sua sponte, assign (a) Notice of appeal. Any party may a time and place for oral argument. appeal any adverse initial decision of § 672.23 Final order on appeal. the Presiding Officer by filing a notice of appeal and an accompanying appel- (a) Contents of the final order. When late brief with the Hearing Clerk and an appeal has been taken or the Direc- upon all other parties and amicus cu- tor issues a notice of intent to conduct riae within twenty (20) days after the review sua sponte, the Director shall initial decision is served upon the par- issue a final order as soon as prac- ties. The notice of appeal shall set ticable after the filing of all appellate forth alternative findings of fact, alter- briefs or oral argument. The Director native conclusions regarding issues of shall adopt, modify or set aside the law or discretion, and a proposed order findings and conclusions contained in the decision or order being reviewed together with relevant references to and shall set forth in the final order the record and the initial decision. The the reasons for his actions. The Direc- appellant’s brief shall contain a state- tor may, in his discretion, increase or ment of the issues presented for review, decrease the assessed penalty from the argument on the issues presented, and amount recommended in the decision a short conclusion stating the precise or order being reviewed, except that if relief sought, together with appro- the order being reviewed is a default priate references to the record. Within order, the Director may not increase twenty (20) days of the service of no- the amount of the penalty. tices of appeal and briefs, any other (b) Payment of a civil penalty. The re- party or amicus curiae may file with spondent shall pay the full amount of the Hearing Clerk a reply brief re- the civil penalty assessed in the final sponding to argument raised by the ap- order within sixty (60) days after re- pellant, together with references to the ceipt of the final order unless other- relevant portions of the record, initial wise agreed by the parties. Payment decision, or opposing brief. Reply briefs shall be made by forwarding to the shall be limited to the scope of the ap- Hearing Clerk a cashier’s check or cer- peal brief. tified check in the amount of the pen- (b) Sua sponte review by the Director. alty assessed in the final order, payable Whenever the Director determines sua to the Treasurer, United States of sponte to review an initial decision, America. the Hearing Clerk shall serve notice of (c) Money due and owing the United such intention on the parties within States by virtue of an unappealed final forty-five (45) days after the initial de- decision or settlement order may be cision is served upon the parties. The collected by referral to the Department notice shall include a statement of of Justice for appropriate civil action issues to be briefed by the parties and against respondent. a time schedule for the service and filing of briefs. § 672.24 Maximum civil monetary pen- (c) Scope of appeal or review. The ap- alties for violations. peal of the initial decision shall be lim- (a) For violations occurring prior to ited to those issues raised by the par- August 1, 2016, the maximum civil pen- ties during the course of the pro- alty is $6500 for any violation and ceeding. If the Director determines $11,000 for knowing violations. that issues raised, but not appealed by (b) For violations occurring after Au- the parties, should be argued, he shall gust 1, 2016, but before January 1, 2017, give the parties or their representa- the maximum civil penalty is adjusted tives written notice of such determina- to $16,250 for any violation and $27,500 tion to permit preparation of adequate for knowing violations. argument. Nothing herein shall pro- (c) For violations occurring on or hibit the Director from remanding the after January 1, 2017, the maximum case to the Presiding Officer for further penalty, which may be assessed under proceedings. part 672 of the title, is the larger of:

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(1) The amount for the previous cal- tion obligations under the Antarctic endar year, or Conservation Act. (2) An amount adjusted for inflation, (Approved by the Office of Management and calculated by multiplying the amount Budget under control number 3145–0180) for the previous calendar year by the percentage by which the CPI–U for the § 673.2 Scope. month of October preceding the current calendar year exceeds the CPI–U The requirements in this part apply for the month of October of the cal- to non-governmental expeditions to or endar year two years prior to the cur- within Antarctica for which the United rent calendar year, adding that amount States is required to give advance no- to the amount for the previous cal- tice under Paragraph (5) of Article VII endar year, and rounding the total to of the Antarctic Treaty. the nearest dollar. (d) Notice of the maximum penalty § 673.3 Definitions. which may be assessed under part 672 In this part: of this title for calendar years after Antarctica means the area south of 60 2016 will be published by the NSF in degrees south latitude. the FEDERAL REGISTER on an annual Expedition means an activity under- basis on or before January 15 of each taken by one or more non-govern- calendar year. mental persons organized within or [81 FR 41452, June 27, 2016] proceeding from the United States to or within Antarctica for which advance PART 673—ANTARCTIC NON- notification is required under Para- GOVERNMENTAL EXPEDITIONS graph 5 of Article VII of the Antarctic Treaty. Sec. Person has the meaning given that 673.1 Purpose of regulations. term in section 1 of title 1, United 673.2 Scope. States Code, and includes any person 673.3 Definitions. subject to the jurisdiction of the 673.4 Environmental protection informa- United States except that the term tion. does not include any department, agen- 673.5 Emergency response plan. cy, or other instrumentality of the AUTHORITY: 16 U.S.C. 2401 et. seq. Federal Government. SOURCE: 66 FR 42451, Aug. 13, 2001, unless § 673.4 Environmental protection in- otherwise noted. formation. § 673.1 Purpose of regulations. (a) Any person who organizes a non- governmental expedition to Antarctica The purpose of the regulations in this and who does business in the United part is to implement the Antarctic Conservation Act of 1978, Public Law States shall notify expedition members 95–541, as amended by the Antarctic of the environmental protection obli- Science, Tourism and Conservation Act gations of the Antarctic Conservation of 1996, Public Law 104–227, and Article Act. 15 of the Protocol on Environmental (b) The National Science Founda- Protection to the Antarctic Treaty tion’s Office of Polar Programs may done at Madrid on October 4, 1991. Spe- prepare for publication and distribu- cifically, this part requires that all tion explanation of the prohibited acts non-governmental expeditions, for set forth in the Antarctic Conservation which advance notice by the United Act, as well as other appropriate edu- States is required under the Antarctic cational material for tour operators, Treaty, who use non-flagged vessels en- their clients, and employees. Such ma- sure that the vessel owner or operator terial provided to tour operators for has an appropriate emergency response distribution to their passengers and plan. This part is also designed to en- crew shall be disseminated prior to or sure that expedition members are in- during travel to the Antarctic. formed of their environmental protec-

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§ 673.5 Emergency response plan. Environmental Protection to the Ant- Any person organizing a non-govern- arctic Treaty done at Madrid on Octo- mental expedition to or within Antarc- ber 4, 1991. Specifically, this part is de- tica who is transporting passengers signed to ensure meteorites in Antarc- aboard a non-U.S. flagged vessel shall tica will be collected for scientific re- ensure that: search purposes only and that U.S. ex- (a) The vessel owner’s or operator’s pedition organizers to Antarctica who shipboard oil pollution emergency plan to collect meteorites in Antarc- plan, prepared and maintained accord- tica will ensure that any specimens ing to Regulation 26 of Annex I of the collected will be properly collected, International Convention for the Pre- handled, documented and curated to vention of Pollution from Ships, 1973, preserve their scientific value. as modified by the Protocol of 1978 relating thereto (MARPOL 73/78), has § 674.2 Scope and applicability. provisions for prompt and effective re- This part applies to any person who sponse action to such emergencies as collects meteorites in Antarctica. The might arise in the performance of the requirements of § 674.5 apply to any vessel’s activities in Antarctica. Any person organizing an expedition to or emergency response plan which satis- within Antarctica for which the United fies the requirements contained in 33 States is required to give advance no- CFR 151.26 of the U.S. Coast Guard reg- tice under Paragraph (5) of Article VII ulations will also satisfy the require- of the Antarctic Treaty where one of ments of this paragraph. If the vessel the purposes of the expedition is to col- owner or operator does not have a ship- lect meteorites in Antarctica. The re- board oil pollution emergency plan, a quirements in this part only apply to separate plan for prompt and effective the collection of meteorites in Antarc- response action is required. tica after April 30, 2003. (b) The vessel owner or operator agrees to take all reasonable measures § 674.3 Definitions. to implement the plan for a prompt and effective response action in the In this part: event of an emergency, taking into ac- Antarctica means the area south of 60 count considerations of risk to human degrees south latitude. life and safety. Expedition means an activity undertaken by one or more persons orga- PART 674—ANTARCTIC METEORITES nized within or proceeding from the United States to or within Antarctica Sec. for which advance notification is re- 674.1 Purpose of regulations. quired under Paragraph 5 of Article VII 674.2 Scope and applicability. of the Antarctic Treaty. 674.3 Definitions. Incremental cost is the extra cost in- 674.4 Restrictions on collection of meteor- volved in sharing the samples with ites in Antarctica. 674.5 Requirements for collection, handling, other researchers. It does not include documentation and curation of Antarctic the initial cost of collecting the mete- meteorites. orites in Antarctica or the cost of 674.6 Submission of information to NSF. maintaining the samples in a curato- 674.7 Exception for serendipitous finds. rial facility. AUTHORITY: 16 U.S.C. 2401 et seq. Person has the meaning given that SOURCE: 68 FR 15379, Mar. 31, 2003, unless term in section 1 of title 1, United otherwise noted. States Code, and includes any person subject to the jurisdiction of the § 674.1 Purpose of regulations. United States. The purpose of the regulations in this part is to implement the Antarctic § 674.4 Restrictions on collection of Conservation Act of 1978, as amended meteorites in Antarctica. by the Antarctic Science, Tourism and No person may collect meteorites in Conservation Act of 1996, (16 U.S.C 2401 Antarctica for other than scientific re- et seq.), and Article 7 of the Protocol on search purposes.

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§ 674.5 Requirements for collection, (vi) A physical description of the handling, documentation, and specimen and of the location of the curation of Antarctic meteorites. find; and (a) Any person organizing an expedi- (vii) Any observations of the collection to or within Antarctica, where one tion activity, such as potential con- of the purposes of the expedition is to tamination of the specimen. collect meteorites in Antarctica, shall (3) Curation. Make prior arrange- ensure that the meteorites will be ments to ensure that any specimens properly collected, documented, han- collected in Antarctica will be main- dled, and curated to preserve their sci- tained in a curatorial facility that will: entific value. Curation includes mak- (i) Preserve the specimens in a man- ing specimens available to bona fide ner that precludes chemical or physical scientific researchers on a timely degradation; basis, in accordance with specified pro- (ii) Produce an authoritative classi- cedures. fication for meteorites that can be (b) Expedition organizers described in shown to belong to a well-established paragraph (a) of this section shall de- chemical and petrological group, and velop and implement written proce- provide appropriate descriptions for dures for the collection, documenta- those meteorites that cannot be shown tion, and curation of specimens which to belong to an established chemical include the following components: and petrological group; (1) Handling requirements. Handling (iii) Develop and maintain curatorial procedures shall ensure that the speci- records associated with the meteorites mens are properly labeled and handled including collection information, au- to minimize the potential for contami- thoritative classification, total known nation from the point of collection to mass, information about handling and the point of curation. At a minimum, sample preparation activities that have handling procedures shall include: been performed on the meteorite, and (i) Handling the samples with clean sub-sample information; Teflon or polyethylene coated imple- (iv) Submit an appropriate summary ments or stainless steel implements (or of information about the meteorites to equivalent); the Antarctic Master Directory via the (ii) Double bagging of samples in Tef- National Antarctic Data Coordination lon or polyethylene (or equivalent) Center as soon as possible, but no later bags; than two years after receipt of samples (iii) A unique sample identifier in- at the curatorial facility; cluded with the sample; (v) Submit information on classifica- (iv) Keeping the samples frozen at or tion of the meteorite to an internation- below ¥15 °C until opened and thawed ally recognized meteorite research in a clean laboratory setting at the catalog, such as the ‘‘Catalogue of Me- curation facility; and teorites’’ published by the Natural His- (v) Thawing in a clean, dry, non-reac- tory Museum of London or the tive gas environment, such as nitrogen ‘‘Meteoritical Bulletin’’ published by or argon. the Meteoritical Society; (2) Sample documentation. Documenta- (vi) Specify procedures by which re- tion for each specimen, that includes, quests for samples by bonafide sci- at a minimum: entific researchers will be handled; (i) A unique identifier for the sample; (vii) Make samples available to (ii) The date of find; bonafide scientific researchers at no (iii) The date of collection (if dif- more than incremental cost and within ferent from date of find); a reasonable period of time; and (iv) The latitude and longitude to (viii) In the event that the initial cu- within 500 meters of the location of the ratorial facility is no longer in a posi- find and the name of the nearest named tion to provide curation services for geographical feature; the specimens, or believes that the me- (v) The name, organizational affili- teorites no longer merit curation, it ation, and address of the finder or the shall consult with the National Science expedition organizer; Foundation’s Office of Polar Programs

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to identify another appropriate curato- § 675.1 Purpose and authority. rial facility, or to determine another (a) This part sets forth the proce- appropriate arrangement. dures for medical screening to determine whether candidates for participa- § 674.6 Submission of information to tion in the United States Antarctic NSF. Program (USAP) are physically quali- A copy of the written procedures de- fied and psychologically adapted for as- veloped by expedition organizers pursu- signment or travel to Antarctica. Med- ant to § 674.5(b) shall be furnished to ical screening examinations are nec- the National Science Foundation’s Of- essary to determine the presence of fice of Polar Programs at a minimum any physical or psychological condi- of 90 days prior to the planned depar- tions that would threaten the health or ture date of the expedition for Antarc- safety of the candidate or other USAP tica. NSF shall publish a notice of participants or that could not be effec- availability of the plan in the FEDERAL tively treated by the limited medical REGISTER that provides for a 15 day care capabilities in Antarctica. comment period. NSF shall evaluate (b) Presidential Memorandum No. the procedures in the plan to determine 6646 (February 5, 1982) (available from if they are sufficient to ensure that the the National Science Foundation, Of- meteorites will be properly collected, fice of Polar Programs, room 755, 4201 handled, documented, and curated. Wilson Blvd., Arlington, VA 22230) sets NSF shall provide comments on the forth the National Science Founda- adequacy of the plan within 45 days of tion’s overall management responsibil- receipt. If NSF advises the expedition ities for the entire United States na- organizer that the procedures satisfy tional program in Antarctica. the requirements of § 674.5 and the pro- § 675.2 Medical examinations. cedures are implemented, the expedition organizer will have satisfied the (a) Any individual seeking to travel requirements of this part. to Antarctica under sponsorship of the United States Antarctic Program must § 674.7 Exception for serendipitous undergo a medical and dental examina- finds. tion to determine whether the individual is physically qualified for de- A person who makes a serendipitous ployment to Antarctica. discovery of a meteorite in Antarctica (b) The medical and dental examina- which could not have been reasonably tions may be conducted by a qualified anticipated, may collect the meteorite licensed physician or dentist of the for scientific research purposes, pro- candidate’s choosing, or designated by vided that the meteorite is collected in the employing organization, following the manner most likely to prevent con- instructions provided by the USAP. tamination under the circumstances, The medical examinations shall in- and provided that the meteorite is oth- clude a medical history, physical ex- erwise handled, documented and amination and appropriate clinical curated in accordance with the require- tests which address major organ sys- ments of § 674.5. tems for medical conditions inconsistent with safe deployment to Ant- PART 675—MEDICAL CLEARANCE arctica. PROCESS FOR DEPLOYMENT TO (c) The candidate’s physician/dentist ANTARCTICA will submit the required medical information on the appropriate USAP-pro- Sec. vided forms to a USAP-designated phy- 675.1 Purpose and authority. sician who will determine whether the 675.2 Medical examinations. individual is qualified for deployment 675.3 Medical clearance criteria. to Antarctica based upon Medical 675.4 Waiver process. Clearance Criteria established by the USAP. All information requested on AUTHORITY: 42 U.S.C. 1870. the forms shall be provided. SOURCE: 62 FR 31522, June 10, 1997, unless (d) Candidates who anticipate spend- otherwise noted. ing the austral winter in Antarctica

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(when evacuation may be impossible) (c) The Director, Office of Polar Pro- are subject to additional evaluation, grams (or designee) will make a final including a determination of psycho- determination, in the exercise of his or logical adaptability for such an iso- her discretion, on the appropriateness lated assignment. Psychological eval- of a waiver on a case-by-case basis. uations of ‘‘winter-over’’ candidates (d) Individuals for whom a waiver is shall be performed by a qualified team determined to be appropriate are eligi- of USAP-designated physicians/clinical ble for deployment to Antarctica sub- psychologists. ject to any necessary limitations/restrictions identified by the Director, § 675.3 Medical clearance criteria. Office of Polar Programs, or designee. (a) The USAP shall establish Medical Clearance Criteria for determining eligibility for deployment to Antarctica. PART 680—NATIONAL SCIENCE (See Medical Standards for Antarctic FOUNDATION RULES OF PRACTICE Deployment available from the Na- tional Science Foundation, Office of Subpart A—Rules of Practice for the Polar Programs, room 755.09, 4201 Wil- National Science Foundation son Blvd., Arlington, VA 22230). Sec. The criteria will include examination 680.10 Definitions; cross-references to em- of the following major organ systems: ployee ethical conduct standards and fi- (1) Lungs and chest wall. nancial disclosure regulations. (2) Heart and vascular system. 680.11 Staff involvement with NSF pro- (3) Abdominal organs and gastro- posals and awards. intestinal system. 680.12 One-year NSF post-employment re- (4) Endocrine or metabolic system. strictions. (5) Genitalia and urinary system. 680.13 Purposes for ‘‘substitute’’ require- (6) Musculoskeletal. ments. (7) Skin and cellular tissues. (8) Neurological Disorders. Subpart B [Reserved] (9) Psychiatric or psychological. (10) Dental. AUTHORITY: 5 U.S.C. 7301; 42 U.S.C. 1870(a); (b) The USAP may review and revise 5 CFR 2635.105(c)(3). the Medical Clearance Criteria periodi- SOURCE: 47 FR 32131, July 26, 1982, unless cally as appropriate. otherwise noted. § 675.4 Waiver process. Subpart A—Rules of Practice for (a) If an individual is found not physically qualified for deployment to Ant- the National Science Foundation arctica, the USAP’s contractor will inform the individual of the determina- SOURCE: 61 FR 59837, Nov. 25, 1996, unless tion and of the administrative waiver otherwise noted. process, and will provide a waiver application package to the individual § 680.10 Definitions; cross-references to employee ethical conduct stand- upon request. ards and financial disclosure regu- (b) The waiver applicant should send lations. the completed waiver application package to the USAP’s contractor which (a) Definitions. Under this subpart, will forward the package to NSF’s Of- unless a provision plainly indicates fice of Polar Programs for review and a otherwise: determination on the appropriateness (1) Award means any grant, contract, of a waiver. In making the waiver de- cooperative agreement, loan, or other termination, the Office of Polar Pro- arrangement made by the Government. grams may consult with other qualified (2) Employee includes, in addition to medical personnel and may require any individual defined in 5 CFR waiver applicants to take further med- 2635.102(h), any individual working at ical examinations or to furnish addi- NSF under the Intergovernmental Per- tional medical documentation in sup- sonnel Act. It includes any part-time port of the waiver application. or intermittent employee, temporary

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consultant; but not a special Govern- (2) Before a prospective employee ment employee, as defined in 18 U.S.C. comes to NSF, the prospective em- 202(a). ployee and the grantee institution (3) Institution means any university, must designate, subject to NSF ap- college, business firm, research insti- proval, a ‘‘substitute principal investi- tute, professional society, or other or- gator’’—i.e., another scientist who will ganization. It includes all parts of a be responsible for the work and equip- university or college, including all in- ment and will represent the institution stitutions in a multi-institution State in any dealings with NSF officials or city system. It includes any univer- while the prospective employee is at sity consortium or joint corporation; NSF. but not the universities that belong to (3) Appointment of a substitute prin- such a consortium. Those universities cipal investigator is unnecessary if all shall be considered separate institu- work under an award is to be com- tions for purposes of this part. pletely suspended while the employee (4) Proposal means an application for an award and includes a bid. is at NSF. If the work is to be sus- (b) Cross-references to employee ethical pended, the employee and the grantee conduct standards and financial disclo- institution must inform the NSF in sure regulations. Members of the Na- writing before the employee’s employ- tional Science Board and other em- ment begins. Work under the award ployees of the National Science Foun- may be resumed when the employee dation (NSF), including special Gov- completes his or her NSF employment, ernment employees, should refer to the and its term may be extended to ac- Standards of Ethical Conduct for Em- count for the time lost during the employees of the Executive Branch at 5 ployee’s NSF employment. CFR part 2635, the National Science (b)(1) NSF will entertain no proposal Foundation’s regulations at 5 CFR part on which a current NSF employee 5301 which supplement the executive would be a senior investigator or equiv- branch Standards, and the executive alent, unless it is a proposal for con- branch financial disclosure regulations tinuation or extension of support for at 5 CFR part 2634. work on which the employee served in that capacity before coming to NSF. § 680.11 Staff involvement with NSF Any proposal for continuation of NSF proposals and awards. support at essentially the same level (a)(1) Many scientists, engineers, and (with reasonable allowance for infla- educators interrupt active research and tion) will normally be considered a pro- teaching careers to spend a year or two posal for continuation or extension if it at NSF and then return to research and would support the work of the same in- teaching, usually at the same institu- vestigator and his or her laboratory or tion from which they came. Many such group (if any) in the same general field visiting scientists, engineers, and edu- of science, engineering, or education, cators (and a few permanent employ- notwithstanding that the focus of the ees) who have been principal investiga- work may change in response to re- tors under NSF awards before coming search opportunities or educational to NSF, retain some interest or association with the work. If an individual needs. is a principal investigator under an (2) Someone other than the current NSF award, the individual is not pre- NSF employee must submit any such cluded from retaining ties to the work proposal for continuation or extension after becoming an NSF employee. The of work NSF previously supported and employee may stay in contact with handle all negotiations with NSF, but those who are continuing the work in the capacity in which the current NSF the employee’s laboratory or on his or employee will serve should be clearly her project. The employee may con- spelled out in the proposal. tinue to supervise graduate students. (c) In accordance with 5 CFR And the employee may visit and work 5301.103(a)(1), an NSF employee may in the laboratory on his or her own not receive, directly or indirectly, any time for these and related purposes. salary, consulting fee, honorarium, or

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other form of compensation for serv- particular NSF rules or formal policy, ices, or reimbursement of expenses, such as adoption or amendment of a from an NSF award. resolution by the National Science Board, promulgation or amendment of § 680.12 One-year NSF post-employ- an NSF regulation or circular, amendment restrictions. ment of standard grant or contract (a) For one year after leaving NSF terms, or changes to NSF manuals or employment, a former NSF employee, policy documents; and including a special Government em- (v) Agency positions on particular ployee who has performed work for legislative or regulatory proposals. NSF on more than 60 days in the pre- (d) Paragraph (a) of this section does vious twelve months, shall not represent himself, herself, or any other not apply to: person in dealings with any NSF offi- (1) Any expression of a former em- cial on any proposal, project, or other ployee’s views on policy issues where particular matter. the circumstances make it obvious (b) The one-year restriction con- that the former employee is only tained in paragraph (a) of this section speaking as an informed and interested is in addition to any post-employment citizen, not representing any financial restriction imposed by statute, includ- or other interests of his or her own or ing 18 U.S.C. 207 and 41 U.S.C. 423. To of any other person or institution with the extent that any disqualification re- which he or she is associated; quired by paragraph (a) of this section (2) Any appearance or communica- is not also required by statute, written tion concerning matters of a personal exceptions may be granted by the or individual nature, such as the NSF’s General Counsel, whose deci- former employee’s taxes, salary, bene- sions shall be final. Exceptions will be fits, possible Federal employment, rare and will be granted only where rights as a former employee, or the ap- strict application of the rules would re- plication of conflict-of-interest rules to sult in undue hardship for former something the former employee pro- short-term employees or for other poses to do; former employees, and when granting (3) Any appearance on the former em- an exception would not result in an unfair advantage to the former employee. ployee’s own behalf in any litigation or (c)(1) Paragraph (a) of this section administrative proceeding; or applies to particular matters involving (4) Any presentation of scientific or specific parties, such as grants, con- technical information (at a site visit, tracts, or other agreements; applica- for example) or any other communications for permits, licenses, or the like; tion of scientific or technical informa- requests for rulings or similar official tion on work being proposed or con- determinations; claims; investigations ducted. or audits; charges or accusations (e) As soon as his or her NSF employ- against individuals or firms; adjudica- ment ceases, a former NSF employee tory hearings; and court cases. (including any former special Govern- (2) For former employees, other than ment employee described in paragraph special Government employees, para- (a) of this section) may again be listed graph (a) of this section also applies to as principal investigator on an NSF particular matters that do not involve award, may be listed as principal inves- specific parties, such as: tigator in any proposal or award, and (i) Determinations to establish or may sign a proposal as principal inves- dis-establish a particular program or tigator. However, the former employee set its budget level for a particular fis- and the grantee institution shall for- cal year; mally designate, subject to NSF ap- (ii) Decisions to undertake or terminate a particular project; proval, a ‘‘substitute negotiator’’ who, (iii) Decisions to open or not open a though not principally responsible for contract to competitive bidding; the work, will represent the former em- (iv) General policy or rulemaking— ployee and the institution in dealings including, for example, decisions on with NSF officials on any proposal or

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project for as long as the former em- 681.14 What is the role of the ALJ? ployee would be barred from represen- 681.15 How are the functions of the ALJ sep- tational contacts with NSF by para- arated from those of the investigating official and the reviewing official? graph (a) of this section or by statute. 681.16 Can the reviewing official or the ALJ be disqualified? § 680.13 Purposes for ‘‘substitute’’ re- 681.17 What rights are there to review docu- quirements. ments? Appointment of a ‘‘substitute prin- 681.18 What type of discovery is authorized cipal investigator’’ or ‘‘substitute ne- and how is it conducted? gotiator’’ ensures against unthinking 681.19 Are witness lists exchanged before the hearing? violation of the restrictions on deal- 681.20 Can witnesses be subpoenaed? ings with NSF officials. It serves this 681.21 Who pays the costs for a subpoena? purpose by flagging proposals or 681.22 Are protective orders available? awards affected by the restrictions and 681.23 How are documents filed and served by identifying someone else with whom with the ALJ? NSF officials can properly discuss 681.24 How is time computed? them or negotiate over them. Designa- 681.25 Where is the hearing held? 681.26 How will the hearing be conducted tion of a substitute principal investi- and who has the burden of proof? gator while an employee is at NSF has 681.27 How is evidence presented at the two additional functions: it identifies hearing? another person to be responsible for 681.28 How is witness testimony presented? the work and equipment, and it re- 681.29 Will the hearing proceedings be re- minds all concerned that during an em- corded? ployee’s NSF service his or her atten- 681.30 Are ex parte communications between a party and the ALJ permitted? tions should focus on NSF duties. 681.31 Are there sanctions for misconduct? 681.32 Are post-hearing briefs required? Subpart B [Reserved] DECISIONS AND APPEALS PART 681—PROGRAM FRAUD CIVIL 681.33 How is the case decided? 681.34 How are penalty and assessment REMEDIES ACT REGULATIONS amounts determined? 681.35 Can a party request reconsideration PURPOSE, DEFINITIONS, AND BASIS FOR of the initial decision? LIABILITY 681.36 When does the initial decision of the ALJ become final? Sec. 681.37 What are the procedures for appealing 681.1 Purpose. the ALJ decision? 681.2 Definitions. 681.38 What happens if an initial decision is 681.3 What is the basis for the imposition of appealed? civil penalties and assessments? 681.39 Are there any limitations on the PROCEDURES LEADING TO ISSUANCE OF A right to appeal to the authority head? COMPLAINT 681.40 How does the authority head dispose of an appeal? 681.4 Who investigates program fraud? 681.41 What judicial review is available? 681.5 What happens if program fraud is sus- 681.42 Can the administrative complaint be pected? settled voluntarily? 681.6 When may NSF issue a complaint? 681.43 How are civil penalties and assess- 681.7 What is contained in a complaint? ments collected? 681.8 How will the complaint be served? 681.44 Is there a right to administrative offset? PROCEDURES FOLLOWING SERVICE OF A 681.45 What happens to collections? COMPLAINT 681.46 What if the investigation indicates 681.9 How does a defendant respond to the criminal misconduct? complaint? SOURCE: 74 FR 26794, June 4, 2009, unless 681.10 What happens if a defendant fails to otherwise noted. file an answer? 681.11 What happens once an answer is filed? PURPOSE, DEFINITIONS, AND BASIS FOR HEARING PROCEDURES LIABILITY 681.12 What kind of hearing is con- § 681.1 Purpose. templated? 681.13 At the hearing, what rights do the This part implements the Program parties have? Fraud Civil Remedies Act of 1986, 31

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U.S.C. 3801–3812 (‘‘PFCRA’’). PFCRA wise include the corresponding forms of provides NSF, and other Federal agen- such terms. cies, with an administrative remedy to Person means any individual, part- impose civil penalties and assessments nership, corporation, association, or against persons who make, submit, or private organization, and includes the present, or cause to be made, sub- plural of that term. mitted or presented, false, fictitious, or Representative means an attorney who fraudulent claims or written state- is in good standing of the bar of any ments to NSF. PFCRA also provides State, Territory, or possession of the due process protections to all persons United States, or of the District of Co- who are subject to administrative pro- lumbia, or the Commonwealth of Puer- ceedings under this part. to Rico, or any other individual designated in writing by the defendant. § 681.2 Definitions. Reviewing official means the General For the purposes of this part— Counsel of NSF or the General Coun- ALJ means an Administrative Law sel’s designee. Judge in the authority appointed pur- Statement is defined in section suant to section 3105 of title 5 or de- 3801(a)(9) of title 5 of the United States tailed to the authority pursuant to sec- Code. tion 3344 of title 5. § 681.3 What is the basis for the impo- Authority means the National Science sition of civil penalties and assess- Foundation. ments? Authority head means the Director of (a) Claims. (1) Any person shall be the National Science Foundation or subject, in addition to any other rem- the Director’s designee. edy that may be prescribed by law, to Benefit is intended to cover anything a civil penalty of not more than $5,000 of value, including but not limited to, for each claim if that person makes a any advantage, preference, privilege, claim that the person knows or has license, permit, favorable decision, rul- reason to know— ing, status, or loan guarantee. (i) Is false, fictitious, or fraudulent; Claim is defined in section 3801(a)(3) (ii) Includes or is supported by any of title 31 of the United States Code. written statement which asserts a ma- Complaint means the administrative terial fact which is false, fictitious, or complaint served by the reviewing offi- fraudulent; cial on the defendant under § 681.8. (iii) Includes or is supported by any Defendant means any person alleged written statement that— in a complaint under § 681.7 to be liable (A) Omits a material fact; for a civil penalty or assessment pursu- (B) Is false, fictitious, or fraudulent ant to PFCRA. as a result of such omission; and Government means the United States (C) Is a statement in which the per- Government. son making such statement has a duty Individual means a natural person. to include such material fact; or Initial decision means the written de- (iv) Is for payment for the provision cision of the ALJ required by § 681.33, of property or services which the per- and includes a revised initial decision son has not provided as claimed. issued following a remand or a motion (2) Each voucher, invoice, claim for reconsideration. form, or other individual request or de- Investigating official means the NSF mand for property, services, or money Inspector General or an employee of constitutes a separate claim. the Office of Inspector General des- (3) A claim shall be considered made ignated by the Inspector General. to the authority, recipient, or party Knows or has reason to know is de- when such a claim is actually made to fined in section 3801(a)(5) of title 31 of an agent, fiscal intermediary, or other the United States Code. entity, including any State or political Makes shall include the terms pre- subdivision of a State, acting for or on sents, submits, and causes to be made, behalf of NSF. presented, or submitted. As the context (4) Each claim for property, services, requires, making or made shall like- or money is subject to a civil penalty

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regardless of whether such property, (e) In any case in which it is deter- services, or money is actually delivered mined that more than one person is lia- or paid. ble for making a claim under this sec- (5) If the Government has made any tion on which the Government has payment on a claim, a person subject made payment, an assessment may be to a civil penalty under paragraph imposed against any such person or (a)(1) of this section may also be sub- jointly and severally against any com- ject to an assessment of not more than bination of persons. twice the amount of such claim or that (f) For claims or statements made on portion thereof that is determined to or after August 1, 2016, but before Janu- be in violation of paragraph (a)(1) of ary 1, 2017, the maximum penalty this section. Such assessment shall be which may be assessed under part 681 in lieu of damages sustained by the Government because of such a claim. of the title is $10,781. For claims or (b) Statements. (1) Any person shall be statements made on or after January 1, subject, in addition to any other rem- 2017, the maximum penalty which may edy that may be prescribed by law, to be assessed under part 681 of the title is a civil penalty of not more than $5,000 the larger of: for each statement if that person (1) The amount for the previous cal- makes a written statement that the endar year, or person knows or has reason to know— (2) An amount adjusted for inflation, (i) Asserts a material fact which is calculated by multiplying the amount false, fictitious, or fraudulent; or for the previous calendar year by the (ii) Is false, fictitious, or fraudulent percentage by which the CPI–U for the because it omits a material fact that month of October preceding the cur- the person making the statement has a rent calendar year exceeds the CPI–U duty to include in such a statement; for the month of October of the cal- and endar year two years prior to the cur- (iii) Contains or is accompanied by rent calendar year, adding that amount an express certification or affirmation to the amount for the previous cal- of the truthfulness and accuracy of the endar year, and rounding the total to contents of this statement. the nearest dollar. (2) A person will only be subject to a (g) Notice of the maximum penalty, civil penalty under 681.3(b)(1) if the written statement made by the person which may be assessed under part 681 contains or is accompanied by an ex- of this title for calendar years after press certification or affirmation of the 2016, will be published by NSF in the truthfulness and accuracy of the con- FEDERAL REGISTER on an annual basis tents of this statement. on or before January 15 of each cal- (3) Each written representation, cer- endar year. tification, or affirmation constitutes a [74 FR 26794, June 4, 2009, as amended at 81 separate statement. FR 41452, June 27, 2016] (4) A statement shall be considered made to NSF when it is actually made PROCEDURES LEADING TO ISSUANCE OF A to an agent, fiscal intermediary, or COMPLAINT other entity, including any State or political subdivision of a State, acting § 681.4 Who investigates program for or on behalf of NSF. fraud? (c) No proof of specific intent to de- The Inspector General, or his or her fraud is required to establish liability designee, is the investigating official under this section. responsible for investigating allega- (d) In any case in which it is deter- tions that a false claim or statement mined that more than one person is liable for making a false, fictitious, or has been made. In this regard, the In- fraudulent claim or statement under spector General has authority under this section, each such person may be PFCRA and the Inspector General Act held liable for a civil penalty and as- of 1978 (5 U.S.C. App. 3), as amended, to sessment, where appropriate, under issue administrative subpoenas for the this section. production of records and documents.

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§ 681.5 What happens if program fraud group of related claims submitted at is suspected? the same time, does not exceed $150,000. (a) If the investigating official con- § 681.7 What is contained in a com- cludes that an action under this part is plaint? warranted, the investigating official submits a report containing the find- (a) A complaint is a written state- ings and conclusions of the investiga- ment giving notice to the person al- tion to the reviewing official. If the re- leged to be liable under 31 U.S.C. 3802 of viewing official determines that the re- the specific allegations being referred port provides adequate evidence that a for adjudication and of the person’s person made a false, fictitious or fraud- right to request a hearing with respect ulent claim or statement, the review- to those allegations. ing official shall transmit to the Attor- (b) The complaint will state that ney General written notice of an inten- NSF seeks to impose civil penalties, tion to refer the matter for adjudica- assessments, or both, against the de- tion, with a request for approval of fendant and will include: such referral. This notice will include (1) The allegations of liability the reviewing official’s statements con- against the defendant, including the cerning: statutory basis for liability, identifica- (1) The reasons for the referral; tion of the claims or statements involved, and the reasons liability alleg- (2) The claims or statements upon edly arises from such claims or state- which liability would be based; ments; (3) The evidence that supports liabil- (2) The maximum amount of pen- ity; alties and assessments for which the (4) An estimate of the amount of defendant may be held liable; money or the value of property, serv- (3) A statement that the defendant ices, or other benefits requested or de- may request a hearing by filing an an- manded in the false claim or state- swer and may be represented by a rep- ment; resentative; (5) Any exculpatory or mitigating (4) Instructions for filing such an an- circumstances that may relate to the swer; and claims or statements known by the re- (5) A warning that failure to file an viewing official or the investigating of- answer within 30 days of service of the ficial; and complaint will result in imposition of (6) A statement that there is a rea- the maximum amount of penalties and sonable prospect of collecting an ap- assessments. propriate amount of penalties and as- (c) The reviewing official must serve sessments. any complaint on the defendant and, if (b) If, at any time, the Attorney Gen- a hearing is requested by the defend- eral or his or her designee requests in ant, provide a copy to the ALJ as- writing that this administrative proc- signed to the case. ess be stayed, the authority head, as identified in § 681.2(c) of this part, must § 681.8 How will the complaint be stay the process immediately. The au- served? thority head may order the process re- (a) The complaint must be served on sumed only upon receipt of the written individual defendants directly, a part- authorization of the Attorney General. nership through a general partner, and on corporations or on unincorporated § 681.6 When may NSF issue a com- associations through an executive offi- plaint? cer or a director, except that service NSF may issue a complaint: also may be made on any person au- (a) If the Attorney General (or des- thorized by appointment or by law to ignee) approves the referral of the alle- receive process for the defendant. gations for adjudication; and (b) The complaint may be served ei- (b) In a case of submission of false ther by: claims, if the amount of money or the (1) Registered or certified mail; or value of property or services demanded (2) Personal delivery by anyone 18 or requested in a false claim, or a years of age or older.

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(c) The date of service is the date of § 681.10 What happens if a defendant personal delivery or, in the case of fails to file an answer? service by registered or certified mail, (a) If a defendant does not file any the date of postmark. answer within 30 days after service of (d) When served with the complaint, the complaint, the reviewing official the defendant should also be served may refer the complaint to the ALJ. with a copy of this part 681 and 31 (b) Once the complaint is referred, U.S.C. 3801–3812. the ALJ will promptly serve on the defendant a notice that an initial deci- PROCEDURES FOLLOWING SERVICE OF A sion will be issued. COMPLAINT (c) The ALJ will assume the facts alleged in the complaint to be true and, § 681.9 How does a defendant respond to the complaint? if such facts establish liability under the statute, the ALJ will issue an ini- (a) A defendant may file an answer tial decision imposing the maximum with the reviewing official within 30 amount of penalties and assessments days of service of the complaint. An allowed under PFCRA. answer will be considered a request for (d) Except as otherwise provided in an oral hearing. this section, when a defendant fails to (b) In the answer, a defendant— file a timely answer, the defendant (1) Must admit or deny each of the al- waives any right to further review of legations of liability contained in the the penalties and assessments imposed complaint (a failure to deny an allega- in the initial decision. tion is considered an admission); (e) The initial decision becomes final (2) Must state any defense on which 30 days after it is issued. the defendant intends to rely; (f) At any time before an initial deci- (3) May state any reasons why he or sion becomes final, a defendant may she believes the penalties, assessments, file a motion with the ALJ asking that or both should be less than the statu- the case be reopened. An ALJ may only tory maximum; and reopen a case if, in this motion, he or (4) Must state the name, address, and she determines that the defendant set telephone number of the person author- forth extraordinary circumstances that ized by the defendant to act as the de- prevented the defendant from filing a fendant’s representative, if any. timely answer. The initial decision will (c) If the defendant is unable to file a be stayed until the ALJ makes a deci- timely answer which meets the re- sion on the motion. The reviewing offi- quirements set forth in paragraph (b) cial may respond to the motion. of this section, the defendant may file (g) If the ALJ determines that a de- with the reviewing official a general fendant has demonstrated extraor- answer denying liability, requesting a dinary circumstances excusing his fail- hearing, and requesting an extension of ure to file a timely answer, the ALJ time in which to file a complete an- will withdraw the initial decision, and swer. A general answer must be filed grant the defendant an opportunity to within 30 days of service of the com- answer the complaint. plaint. (h) A decision by the ALJ to deny a (d) If the defendant initially files a defendant’s motion to reopen a case is general answer requesting an extension not subject to reconsideration under of time, the reviewing official must § 681.35. promptly file with the ALJ the com- (i) The defendant may appeal to the plaint, the general answer, and the re- authority head the decision denying a quest for an extension of time. motion to reopen by filing a notice of (e) For good cause shown, the ALJ appeal with the authority head within may grant the defendant up to 30 addi- 15 days after the ALJ denies the mo- tional days within which to file an an- tion. The timely filing of a notice of swer meeting the requirements of para- appeal shall stay the initial decision graph (b) of this section. Such answer until the authority head decides the must be filed with the ALJ and a copy issue. must be served on the reviewing offi- (j) If the defendant files a timely no- cial. tice of appeal with the authority head,

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the ALJ shall forward the record of the HEARING PROCEDURES proceeding to the authority head. (k) The authority head shall decide § 681.12 What kind of hearing is contemplated? expeditiously, based solely on the record before the ALJ, whether ex- The hearing is a formal proceeding traordinary circumstances excuse the conducted by the ALJ during which a defendant’s failure to file a timely an- defendant will have the opportunity to swer. cross-examine witnesses, present testimony, and dispute liability. (l) If the authority head decides that extraordinary circumstances excused § 681.13 At the hearing, what rights do the defendant’s failure to file a timely the parties have? answer, the authority head shall re- Each party has the right to: mand the case to the ALJ with instruc- (a) Be represented by a representations to grant the defendant an oppor- tive; tunity to answer. (b) Request a pre-hearing conference (m) If the authority head decides and participate in any conference held that the defendant’s failure to file a by the ALJ; timely answer is not excused, the au- (c) Conduct discovery; thority head shall reinstate the initial (d) Agree to stipulations of fact or decision of the ALJ, which shall be- law which will be made a part of the come final and binding upon the par- record; ties 30 days after the authority head (e) Present evidence relevant to the issues such a decision. issues at the hearing; (f) Present and cross-examine wit- § 681.11 What happens once an answer nesses; is filed? (g) Present arguments at the hearing (a) When the reviewing official reas permitted by the ALJ; and (h) Submit written briefs and pro- ceives an answer, he or she must file posed findings of fact and conclusions concurrently, the complaint and the of law after the hearing, as permitted answer with the ALJ, along with a des- by the ALJ. ignation of NSF’s representative. (b) When the ALJ receives the com- § 681.14 What is the role of the ALJ? plaint and the answer, the ALJ will An ALJ retained by NSF serves as promptly serve a notice of hearing the presiding officer at all hearings. upon the defendant and the NSF rep- (a) The ALJ shall conduct a fair and resentative, in the same manner as the impartial hearing, avoid delay, main- complaint, which is described in § 681.8. tain order, and assure that a record of The notice of oral hearing must be the proceeding is made. served within six years of the date on (b) The ALJ has the authority to— which the claim or statement is made. (1) Set and change the date, time, (c) The notice must include: and place of the hearing upon reason- (1) The tentative date, time, and able notice to the parties; place of the hearing; (2) Continue or recess the hearing in (2) The legal authority and jurisdic- whole or in part for a reasonable period tion under which the hearing is being of time; held; (3) Hold conferences to identify or (3) The matters of fact and law to be simplify the issues, or to consider other matters that may aid in the ex- asserted; peditious disposition of the proceeding; (4) A description of the procedures for (4) Administer oaths and affirma- the conduct of the hearing; tions; (5) The name, address, and telephone (5) Issue subpoenas requiring the at- number of the defendant’s representa- tendance of witnesses and the productive and the representative for NSF; tion of documents at depositions or at and hearings; (6) Such other matters as the ALJ (6) Rule on motions and other proce- deems appropriate. dural matters;

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(7) Regulate the scope and timing of (2) The motion must be filed prompt- discovery; ly after discovery of the grounds for (8) Regulate the course of the hearing disqualification or the objection will be and the conduct of representatives and deemed waived; and parties; (3) The party, or representative of (9) Examine witnesses; record, must certify in writing that the (10) Receive, rule on, exclude, or motion is made in good faith. limit evidence; (c) Once a motion has been filed to (11) Upon motion of a party, take of- disqualify the reviewing official, the ficial notice of facts; ALJ will halt the proceedings until re- (12) Upon motion of a party, decide solving the matter of disqualification. cases, in whole or in part, by summary If the ALJ determines that the review- judgment where there is no disputed ing official is disqualified, the ALJ will issue of material fact; dismiss the complaint without preju- (13) Conduct any conference, argu- dice. If the ALJ disqualifies himself or ment or hearing on motions in person or by telephone; and herself, the case will be promptly reas- (14) Exercise such other authority as signed to another ALJ. is necessary to carry out the respon- § 681.17 What rights are there to re- sibilities of the ALJ under this part. view documents? (c) The ALJ does not have the authority to find Federal statutes or reg- (a) Once the ALJ issues a hearing no- ulations invalid. tice pursuant to § 681.11(b), and upon written request to the reviewing offi- § 681.15 How are the functions of the cial, the defendant may: ALJ separated from those of the in- (1) Review any relevant and material vestigating official and the review- documents, transcripts, records, and ing official? other materials that relate to the alle- (a) The investigating official, the re- gations set out in the complaint and viewing official, and any employee or upon which the findings and conclu- agent of the authority who takes part sions of the investigating official are in investigating, preparing, or pre- based, unless such documents are sub- senting a particular case may not, in ject to a privilege under Federal law. such case or a factually related case: Upon payment of fees for duplication, (1) Participate in the hearing as the the defendant may obtain copies of ALJ; such documents; and (2) Participate or advise in the review of the initial decision by the authority (2) Obtain a copy of all exculpatory head; or information in the possession of the re- (3) Make the collection of penalties viewing official or investigating offi- and assessment under 31 U.S.C. 3806. cial relating to the allegations in the (b) The ALJ shall not be responsible complaint, even if it is contained in a to or subject to the supervision or di- document that would otherwise be rection of the investigating official or privileged. If the document would oth- the reviewing official. erwise be privileged, only that portion containing exculpatory information § 681.16 Can the reviewing official or must be disclosed. ALJ be disqualified? (b) The notice sent to the Attorney (a) A reviewing official or an ALJ General from the reviewing official as may disqualify himself or herself at described in § 681.5(a) is not discover- any time. able under any circumstances. (b) Upon motion of any party, the re- (c) If the reviewing official does not viewing official or ALJ may be dis- respond to the defendant’s request qualified as follows: within 20 days, the defendant may file (1) The motion must be supported by a motion to compel disclosure of the an affidavit containing specific facts documents with the ALJ subject to the establishing that personal bias or other provisions of this section. Such a mo- reason for disqualification exists, in- tion may only be filed with the ALJ cluding the time and circumstances of following the filing of an answer pursu- the discovery of such facts; ant to § 681.9.

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§ 681.18 What type of discovery is au- (2) The party seeking to depose shall thorized and how is it conducted? serve the subpoena in the manner pre- (a) The following types of discovery scribed by § 681.8. are authorized: (3) The deponent may file with the (1) Requests for production of docu- ALJ a motion to quash the subpoena or ments for inspection and copying; a motion for a protective order within (2) Requests for admissions of au- ten days of service. thenticity of any relevant document or (4) The party seeking to depose shall of the truth of any relevant fact; provide for the taking of a verbatim (3) Written interrogatories; and transcript of the deposition, which it (4) Depositions. shall make available to all other par- (b) For the purpose of this section, ties for inspection and copying. the term ‘‘documents’’ includes infor- (f) Each party shall bear its own mation, documents, reports, answers, costs of discovery. records, accounts, papers, and other data and documentary evidence. Noth- § 681.19 Are witness lists exchanged before the hearing? ing contained herein shall be interpreted to require the creation of a doc- (a) As ordered by the ALJ, the par- ument. ties must exchange witness lists and (c) Unless mutually agreed to by the copies of proposed hearing exhibits, in- parties, discovery is available only as cluding copies of any written state- ordered by the ALJ. The ALJ shall reg- ments or transcripts of deposition tes- ulate the timing of discovery. timony that each party intends to offer (d) Motions for discovery. (1) A party in lieu of live testimony. seeking discovery may file a motion (b) If a party objects, the ALJ will with the ALJ. Such a motion shall be not admit into evidence the testimony accompanied by a copy of the requested of any witness whose name does not ap- discovery, or in the case of depositions, pear on the witness list or any exhibit a summary of the scope of the proposed not provided to an opposing party in deposition. advance unless the ALJ finds good (2) Within ten days of service, a party cause for the omission or concludes may file an opposition to the motion that there is no prejudice to the object- and/or a motion for protective order as ing party. provided in § 681.22. (c) Unless a party objects within the (3) The ALJ may grant a motion for time set by the ALJ, documents ex- discovery only if he or she finds that changed in accordance with this sec- the discovery sought— tion are deemed to be authentic for the (i) Is necessary for the expeditious, purpose of admissibility at the hearing. fair, and reasonable consideration of the issues; § 681.20 Can witnesses be subpoenaed? (ii) Is not unduly costly or burden- (a) A party wishing to procure the some; appearance and testimony of any indi- (iii) Will not unduly delay the pro- vidual at the hearing may request that ceeding; and the ALJ issue a subpoena. (iv) Does not seek privileged informa- (b) A subpoena requiring the attend- tion. ance and testimony of an individual (4) The burden of showing that dis- may also require the individual to covery should be allowed is on the produce documents at the hearing. party seeking discovery. (c) A party seeking a subpoena shall (5) The ALJ may grant discovery sub- file a written request not less than 15 ject to a protective order under § 681.22. days before the date of the hearing un- (e) Depositions. (1) If a motion for dep- less otherwise allowed by the ALJ for osition is granted, the ALJ shall issue good cause shown. Such request shall a subpoena for the deponent, which specify any documents to be produced may require the deponent to produce and shall designate the witnesses and documents. The subpoena shall specify describe the address and location the time and place at which the deposi- thereof with sufficient particularity to tion will be held. permit such witnesses to be found.

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(d) The subpoena shall specify the (6) That the contents of the discovery time and place at which the witness is be sealed; to appear and any documents the wit- (7) That a deposition after being ness is to produce. sealed be opened only by order of the (e) The party seeking the subpoena ALJ; shall serve it in the manner prescribed (8) That a trade secret or other con- in § 681.8. A subpoena on a party or fidential research, development, com- upon an individual under the control of mercial information, or facts per- a party may be served by first class taining to any criminal investigation, mail. proceeding, or other administrative in- (f) A party or the individual to whom vestigation not be disclosed or be dis- the subpoena is directed may file with closed only in a designated way; or the ALJ a motion to quash the sub- (9) That the parties simultaneously poena within ten days after service or file specified documents or information on or before the time specified in the enclosed in sealed envelopes to be subpoena for compliance if it is less opened as directed by the ALJ. than ten days after service. § 681.23 How are documents filed and § 681.21 Who pays the costs for a sub- served with the ALJ? poena? (a) Documents filed with the ALJ The party requesting a subpoena must include an original and two cop- shall pay the cost of the fees and mile- ies. Every document filed in the pro- age of any witness subpoenaed in the ceeding must contain a title (e.g., mo- amounts that would be payable to a tion to quash subpoena), a caption set- witness in a proceeding in United ting forth the title of the action, and States District Court. A check for wit- the case number assigned by the ALJ. ness fees and mileage shall accompany Every document must be signed by the the subpoena when served, except that person on whose behalf the paper was when a subpoena is issued on behalf of filed, or his or her representative. NSF, a check of fees and mileage need (b) Documents are considered filed not accompany the subpoena. when they are mailed. The date of mailing may be established by a cer- § 681.22 Are protective orders avail- tificate from the party or its represent- able? ative, or by proof that the document (a) A party or prospective witness or was sent by certified or registered deponent may file a motion for a pro- mail. tective order with respect to discovery (c) A party filing a document with sought by an opposing party or with re- the ALJ must, at the time of filing, spect to the hearing, seeking to limit serve a copy of such document on every the availability or disclosure of evi- other party. When a party is rep- dence. resented by a representative, the par- (b) In issuing a protective order, the ty’s representative must be served in ALJ may make any order which justice lieu of the party. requires to protect a party or person (d) A certificate of the individual from annoyance, embarrassment, op- serving the document constitutes proof pression, or undue burden or expense, of service. The certificate must set including one or more of the following: forth the manner in which the docu- (1) That the discovery not be had; ment was served. (2) That the discovery may be had only on specified terms and conditions; § 681.24 How is time computed? (3) That the discovery may be had (a) In computing any period of time only through a method of discovery under this part or in an order issued other than requested; thereunder, the time begins with the (4) That certain matters not be in- day following the act, event, or default, quired into, or that the scope of dis- and includes the last day of the period, covery be limited to certain matters; unless it is a Saturday, Sunday, or (5) That discovery be conducted with legal holiday observed by the Federal no one present except persons des- government, in which event it includes ignated by the ALJ; the next business day.

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(b) When the period of time allowed issues, or by considerations of undue is less than seven days, intermediate delay or needless presentation of cumu- Saturdays, Sundays, and legal holidays lative evidence. observed by the Federal government (e) Although relevant, evidence shall are excluded from the computation. be excluded if it is privileged under (c) Where a document has been served Federal law. or issued by placing it in the mail, an (f) Evidence concerning offers of com- additional five days will be added to promise or settlement shall be inad- the time permitted for any response. missible to the extent provided in Rule 408 of the Federal Rules of Evidence. § 681.25 Where is the hearing held? (g) The ALJ shall permit the parties The ALJ will hold the hearing in any to introduce rebuttal witnesses and judicial district of the United States: evidence. (a) In which the defendant resides or transacts business; or § 681.28 How is witness testimony pre- (b) In which the claim or statement sented? on which liability is based was made to (a) Except as provided in paragraph NSF; or (b) of this section, testimony at the (c) As agreed upon by the defendant hearing shall be given orally by wit- and the ALJ. nesses under oath or affirmation. (b) At the discretion of the ALJ, tes- § 681.26 How will the hearing be con- timony may be admitted in the form of ducted and who has the burden of a written statement or deposition. Any proof? such statement must be provided to all (a) The ALJ conducts a hearing in other parties along with the last order to determine whether a defend- known address of such witness, in a ant is liable for a civil penalty, assess- manner which allows sufficient time ment, or both and, if so, the appro- for other parties to subpoena such wit- priate amount of the penalty and/or as- ness for cross-examination at the hear- sessment. The hearing will be recorded ing. Prior written statements of wit- and transcribed, and the transcript of nesses proposed to testify at the hear- testimony, exhibits admitted at the ing and deposition transcripts shall be hearing, and all papers filed in the pro- exchanged as provided in § 681.19. ceeding constitute the record for a de- (c) The ALJ shall exercise reasonable cision by the ALJ. control over the mode and order of in- (b) NSF must prove a defendant’s li- terrogating witnesses and presenting ability and any aggravating factors by evidence. a preponderance of the evidence. (d) The ALJ shall permit the parties (c) A defendant must prove any af- to conduct such cross examination as firmative defenses and any mitigating may be required for a full and true dis- factors by a preponderance of the evi- closure of the facts. dence. (e) Upon motion of any party, the ALJ shall order witnesses excluded § 681.27 How is evidence presented at from the hearing room so that they the hearing? cannot hear the testimony of other (a) The ALJ shall determine the ad- witnesses. This rule does not authorize missibility of evidence. exclusion of— (b) Except as provided in this part, (1) A party who is an individual; the ALJ shall not be bound by the Fed- (2) In the case of a party that is not eral Rules of Evidence. However, the an individual, an officer or employee of ALJ may apply the Federal Rules of the party appearing for the entity pro Evidence where he or she deems appro- se or designated by the party’s rep- priate. resentative; or (c) The ALJ shall exclude irrelevant (3) An individual whose presence is and immaterial evidence. shown by a party to be essential to the (d) Although relevant, evidence may presentation of its case, including an be excluded if its probative value is individual employed by the Govern- substantially outweighed by the danger ment engaged in assisting the rep- of unfair prejudice, confusion of the resentative for the Government.

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§ 681.29 Will the hearing proceedings ing, the ALJ may dismiss the action or be recorded? may issue an initial decision imposing The hearing will be recorded and penalties and assessments. transcribed. The transcript of testi- § 681.32 Are post-hearing briefs re- mony, exhibits and other evidence ad- quired? mitted at the hearing, and all papers and requests filed in the proceeding Post-hearing briefs are not required, constitute the record for the decision but the ALJ may permit them at his or by the ALJ and the authority head. her discretion.

§ 681.30 Are ex parte communications DECISIONS AND APPEALS between a party and the ALJ permitted? § 681.33 How is the case decided? Ex parte communications between a (a) The ALJ will issue an initial deci- party and the ALJ are not permitted sion based only on the record. It will unless the other party consents to such contain findings of fact, conclusions of a communication taking place. This law, and the amount of any penalties does not prohibit a party from inquir- and assessments imposed. ing about the status of a case or asking (b) The ALJ will serve the initial de- routine questions concerning adminis- cision on all parties within 90 days trative functions or procedures. after the close of the hearing or, if the filing of post-hearing briefs were per- § 681.31 Are there sanctions for mis- mitted, within 90 days after the final conduct? post-hearing brief was filed. (a) The ALJ may sanction a person, (c) The findings of fact must include including any party or representative, a finding on each of the following for failing to comply with an order, or issues: for engaging in other misconduct that (1) Whether any one or more of the interferes with the speedy, orderly, and claims or statements identified in the fair conduct of a hearing. complaint violate this part; and (b) Any such sanction shall reason- (2) If the defendant is liable for pen- ably relate to the severity and nature alties or assessments, the appropriate of the misconduct. amount of any such penalties or assess- (c) When a party fails to comply with ments, considering any mitigating or an order, including an order for taking aggravating factors. a deposition, the production of evi- (d) The initial decision will include a dence within the party’s control, or a description of the right of a defendant request for admission, the ALJ may: found liable for a civil penalty or as- (1) Draw an inference in favor of the sessment to file a motion for reconsid- requesting party with regard to the in- eration with the ALJ or a notice of ap- formation sought; peal with the authority head. (2) In the case of requests for admission, deem each matter of which an ad- § 681.34 How are penalty and assess- mission is requested to be admitted; ment amounts determined? (3) Prohibit the party failing to com- (a) In determining an appropriate ply with such order from introducing amount of civil penalties and assess- evidence concerning, or otherwise rely- ments, the ALJ and the authority ing upon testimony relating to the in- head, upon appeal, should evaluate any formation sought; and circumstances that mitigate or aggra- (4) Strike any part of the pleadings vate the violation and should articu- or other submissions of the party fail- late in their opinions the reasons that ing to comply with such a request. support the penalties and assessments (d) The ALJ may refuse to consider they impose. Although not exhaustive, any motion, request, response, brief or the following factors are among those other document which is not filed in a that may influence the ALJ and the timely fashion. authority head in determining the (e) If a party fails to prosecute or de- amount of penalties and assessments to fend an action under this part com- impose with respect to the misconduct menced by service of a notice of hear- charged in the complaint:

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(1) The number of false, fictitious, or thority head from considering any fraudulent claims or statements; other factors that in any given case (2) The time period over which such may mitigate or aggravate the offense claims or statements were made; for which penalties and assessments (3) The degree of the defendant’s cul- are imposed. pability with respect to the misconduct; § 681.35 Can a party request reconsid- (4) The amount of money or the value eration of the initial decision? of the property, services, or benefit (a) Any party may file a motion for falsely claimed; reconsideration of the initial decision (5) The value of the Government’s ac- with the ALJ within 20 days of receipt tual loss as a result of the misconduct, of the initial decision. If the initial de- including foreseeable consequential cision was served by mail, there is a re- damages and the cost of the investiga- buttable presumption that the initial tion; decision was received by the party 5 (6) The relationship of the amount days from the date of mailing. imposed as civil penalties to the (b) A motion for reconsideration amount of the Government’s loss; must be accompanied by a supporting (7) The potential or actual impact of brief and must describe specifically the misconduct upon public confidence each allegedly erroneous decision. in the management of Government pro- (c) Any response to a motion for re- grams and operations; consideration will only be allowed if it (8) Whether the defendant has en- is requested by the ALJ. gaged in a pattern of the same or simi- (d) The ALJ will dispose of a motion lar misconduct; for reconsideration by denying it or by (9) Whether the defendant attempted issuing a revised initial decision. to conceal the misconduct; (e) If the ALJ issues a revised initial (10) The degree to which the defend- decision upon motion of a party, no ant has involved others in the mis- further motions for reconsideration conduct or in concealing it; may be filed by any party. (11) Where the misconduct of employees or agents is imputed to the defend- § 681.36 When does the initial decision ant, the extent to which the defend- of the ALJ become final? ant’s practices fostered or attempted (a) The initial decision of the ALJ be- to preclude such misconduct; comes the final decision of NSF, and (12) Whether the defendant cooper- shall be binding on all parties 30 days ated in or obstructed an investigation after it is issued, unless any party of the misconduct; timely files a motion for reconsider- (13) Whether the defendant assisted ation or any defendant adjudged to in identifying and prosecuting other have submitted a false, fictitious, or wrongdoers; fraudulent claim or statement timely (14) The complexity of the program appeals to the authority head of NSF, or transaction, and the degree of the as set forth in § 681.37. defendant’s sophistication with respect (b) If the ALJ disposes of a motion to it, including the extent of the de- for reconsideration by denying it or by fendant’s prior participation in the issuing a revised initial decision, the program or in similar transactions; ALJ’s order on the motion for recon- (15) Whether the defendant has been sideration becomes the final decision of found, in any criminal, civil, or admin- NSF 30 days after the order is issued, istrative proceeding to have engaged in unless a defendant adjudged to have similar misconduct or to have dealt submitted a false, fictitious, fraudulent dishonestly with the Government of claim or statement timely appeals to the United States or a state, directly the authority head of NSF, as set forth or indirectly; and in § 681.37. (16) The need to deter the defendant and others from engaging in the same § 681.37 What are the procedures for or similar misconduct. appealing the ALJ decision? (b) Nothing in this section shall be (a) Any defendant who submits a construed to limit the ALJ or the au- timely answer and is found liable for a

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civil penalty or assessment in an ini- authority head that extraordinary cir- tial decision may appeal the decision. cumstances prevented the presentation (b) The defendant may file a notice of of evidence at the hearing, and that the appeal with the authority head within additional evidence is material, the au- 30 days following issuance of the initial thority head may remand the matter decision, serving a copy of the notice of to the ALJ for consideration of the ad- appeal on all parties and the ALJ. The ditional evidence. authority head may extend this deadline for up to an additional 30 days if § 681.40 How does the authority head an extension request is filed within the dispose of an appeal? initial 30-day period and shows good (a) The authority head may affirm, cause. reduce, reverse, compromise, remand, (c) The defendant’s appeal will not be or settle any penalty or assessment im- considered until all timely motions for posed by the ALJ in the initial decision reconsideration have been resolved. or reconsideration decision. (d) If a timely motion for reconsider- (b) The authority head will promptly ation is denied, a notice of appeal may serve each party to the appeal and the be filed within 30 days following such ALJ with a copy of his or her decision. denial or issuance of a revised initial This decision must contain a state- decision, whichever applies. ment describing the right of any per- (e) A notice of appeal must be sup- son, against whom a penalty or assess- ported by a written brief specifying ment has been made, to seek judicial why the initial decision should be re- review. versed or modified. (f) The NSF representative may file a § 681.41 What judicial review is avail- brief in opposition to the notice of ap- able? peal within 30 days of receiving the de- 31 U.S.C. 3805 authorizes judicial re- fendant’s appeal and supporting brief. view by the appropriate United States (g) If a defendant timely files a no- District Court of any final NSF deci- tice of appeal, and the time for filing sion imposing penalties or assessments, reconsideration motions has expired, and specifies the procedures for such the ALJ will forward the record of the review. To obtain judicial review, a de- proceeding to the authority head. fendant must file a petition with the § 681.38 What happens if an initial de- appropriate court in a timely manner. cision is appealed? § 681.42 Can the administrative com- (a) An initial decision is stayed auto- plaint be settled voluntarily? matically pending disposition of a motion for reconsideration or of an appeal (a) Parties may make offers of com- to the authority head. promise or settlement at any time. (b) No administrative stay is avail- Any compromise or settlement must be able following a final decision of the in writing. authority head. (b) The reviewing official has the exclusive authority to compromise or § 681.39 Are there any limitations on settle the case from the date on which the right to appeal to the authority the reviewing official is permitted to head? issue a complaint until the ALJ issues (a) A defendant has no right to ap- an initial decision. pear personally, or through a rep- (c) The authority head has exclusive resentative, before the authority head. authority to compromise or settle the (b) There is no right to appeal any in- case from the date of the ALJ’s initial terlocutory ruling. decision until initiation of any judicial (c) The authority head will not con- review or any action to collect the pen- sider any objection or evidence that alties and assessments. was not raised before the ALJ unless (d) The Attorney General has exclu- the defendant demonstrates that the sive authority to compromise or settle failure to object was caused by extraor- the case while any judicial review or dinary circumstances. If the defendant any action to recover penalties and as- demonstrates to the satisfaction of the sessments is pending.

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(e) The investigating official may PART 689—RESEARCH recommend settlement terms to the re- MISCONDUCT viewing official, the authority head, or the Attorney General, as appropriate. Sec. 689.1 Definitions. § 681.43 How are civil penalties and as- 689.2 General policies and responsibilities. sessments collected? 689.3 Actions. 689.4 Role of awardee institutions. Section 3806 and 3808(b) of title 31, 689.5 Initial NSF handling of misconduct United States Code, authorize actions matters. for collection of civil penalties and as- 689.6 Investigations. sessments imposed under this part and 689.7 Pending proposals and awards. specify the procedures for such actions. 689.8 Interim administrative actions. 689.9 Dispositions. 689.10 Appeals. § 681.44 Is there a right to administrative offset? AUTHORITY: 42 U.S.C. 1870(a). The amount of any penalty or assess- SOURCE: 67 FR 11937, Mar. 18, 2002, unless ment which has become final, or for otherwise noted. which a judgment has been entered, or § 689.1 Definitions. any amount agreed upon in a com- The following definitions apply to promise or settlement, may be col- this part: lected by administrative offset under 31 (a) Research misconduct means fab- U.S.C. 3716, except that an administra- rication, falsification, or plagiarism in tive offset may not be made under this proposing or performing research fund- subsection against a refund of an over- ed by NSF, reviewing research pro- payment of Federal taxes, then or later posals submitted to NSF, or in report- owing by the United States to the de- ing research results funded by NSF. fendant. (1) Fabrication means making up data or results and recording or reporting § 681.45 What happens to collections? them. All amounts collected pursuant to (2) Falsification means manipulating this part shall be deposited as miscella- research materials, equipment, or proc- neous receipts in the Treasury of the esses, or changing or omitting data or United States, except as provided in 31 results such that the research is not accurately represented in the research U.S.C. 3806(g). record. (3) Plagiarism means the appropria- § 681.46 What if the investigation indicates criminal misconduct? tion of another person’s ideas, processes, results or words without giving (a) Any investigating official may: appropriate credit. (1) Refer allegations of criminal mis- (4) Research, for purposes of para- conduct directly to the Department of graph (a) of this section, includes pro- Justice for prosecution or for suit posals submitted to NSF in all fields of under the False Claims Act or other science, engineering, mathematics, and civil proceeding; education and results from such pro- (2) Defer or postpone a report or re- posals. ferral to the reviewing official to avoid (b) Research misconduct does not in- interference with a criminal investiga- clude honest error or differences of tion or prosecution; or opinion. (3) Issue subpoenas under any other § 689.2 General policies and respon- statutory authority. sibilities. (b) Nothing in this part limits the re- (a) NSF will take appropriate action quirement that NSF employees report against individuals or institutions suspected violations of criminal law to upon a finding that research mis- the NSF Office of Inspector General or conduct has occurred. Possible actions to the Attorney General. are described in § 689.3. NSF may also take interim action during an investigation, as described in § 689.8.

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(b) NSF will find research mis- suspected or alleged research misconduct only after careful inquiry and conduct. investigation by an awardee institu- (g) The Deputy Director adjudicates tion, by another Federal agency, or by research misconduct proceedings and NSF. An ‘‘inquiry’’ consists of prelimi- the Director decides appeals. nary information-gathering and pre- (h) Investigative and adjudicative re- liminary fact-finding to determine search misconduct records maintained whether an allegation or apparent in- by the agency are exempt from public stance of research misconduct has sub- disclosure under the Freedom of Infor- stance and if an investigation is war- mation Act (5 U.S.C. 552) and the Pri- ranted. An investigation must be un- vacy Act (5 U.S.C. 552a) to the extent dertaken if the inquiry determines the permitted by law and regulation. allegation or apparent instance of research misconduct has substance. An § 689.3 Actions. ‘‘investigation’’ is a formal develop- (a) Possible final actions listed in ment, examination and evaluation of a this paragraph (a) for guidance range factual record to determine whether re- from minimal restrictions (Group I) to search misconduct has taken place, to the most severe and restrictive (Group assess its extent and consequences, and III). They are not exhaustive and do to evaluate appropriate action. not include possible criminal sanc- (c) A finding of research misconduct tions. requires that— (1) Group I actions. (i) Send a letter of (1) There be a significant departure reprimand to the individual or institu- from accepted practices of the relevant tion. research community; and (ii) Require as a condition of an (2) The research misconduct be com- award that for a specified period an in- mitted intentionally, or knowingly, or dividual or institution obtain special recklessly; and prior approval of particular activities (3) The allegation be proven by a pre- from NSF. ponderance of evidence. (iii) Require for a specified period (d) Before NSF makes any final find- that an institutional official other ing of research misconduct or takes than those guilty of misconduct certify any final action on such a finding, NSF the accuracy of reports generated will normally afford the accused indi- under an award or provide assurance of vidual or institution notice, a chance compliance with particular policies, to provide comments and rebuttal, and regulations, guidelines, or special a chance to appeal. In structuring pro- terms and conditions. cedures in individual cases, NSF may (2) Group II actions. (i) Totally or par- take into account procedures already tially suspend an active award, or re- followed by other entities inves- strict for a specified period designated tigating or adjudicating the same alle- activities or expenditures under an ac- gation of research misconduct. tive award. (e) Debarment or suspension for re- (ii) Require for a specified period spe- search misconduct will be imposed cial reviews of all requests for funding only after further procedures described from an affected individual or institu- in applicable debarment and suspen- tion to ensure that steps have been sion regulations, as described in §§ 689.8 taken to prevent repetition of the mis- and 689.9, respectively. Severe research conduct. misconduct, as established under the (iii) Require a correction to the re- regulations in this part, is an inde- search record. pendent cause for debarment or suspen- (3) Group III actions. (i) Terminate an sion under the procedures established active award. by the debarment and suspension regu- (ii) Prohibit participation of an indi- lations. vidual as an NSF reviewer, advisor, or (f) The Office of Inspector General consultant for a specified period. (OIG) oversees investigations of re- (iii) Debar or suspend an individual search misconduct and conducts any or institution from participation in NSF inquiries and investigations into Federal programs for a specified period

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after further proceedings under appli- (1) Initiate an inquiry into any sus- cable regulations. pected or alleged research misconduct; (b) In deciding what final actions are (2) Conduct a subsequent investiga- appropriate when misconduct is found, tion, if warranted; NSF officials should consider: (3) Take action necessary to ensure (1) How serious the misconduct was; the integrity of research, the rights (2) The degree to which the mis- and interests of research subjects and conduct was knowing, intentional, or the public, and the observance of legal reckless; requirements or responsibilities; and (3) Whether it was an isolated event (4) Provide appropriate safeguards for or part of a pattern; subjects of allegations as well as in- (4) Whether it had a significant im- formants. pact on the research record, research (b) If an institution wishes NSF to subjects, other researchers, institu- defer independent inquiry or investigations or the public welfare; and tion, it should: (5) Other relevant circumstances. (1) Complete any inquiry and decide (c) Interim actions may include, but whether an investigation is warranted are not limited to: within 90 days. If completion of an in- (1) Totally or partially suspending an quiry is delayed, but the institution existing award; wishes NSF deferral to continue, NSF (2) Suspending eligibility for Federal may require submission of periodic sta- awards in accordance with debarment- tus reports. and-suspension regulations; (2) Inform OIG immediately if an ini- (3) Proscribing or restricting partial inquiry supports a formal inves- ticular research activities, as, for ex- tigation. ample, to protect human or animal (3) Keep OIG informed during such an subjects; investigation. (4) Requiring special certifications, (4) Complete any investigation and assurances, or other, administrative reach a disposition within 180 days. If arrangements to ensure compliance completion of an investigation is de- with applicable regulations or terms of layed, but the institution wishes NSF the award; deferral to continue, NSF may require (5) Requiring more prior approvals by submission of periodic status reports. NSF; (5) Provide OIG with the final report (6) Deferring funding action on con- from any investigation. tinuing grant increments; (c) NSF expects institutions to (7) Deferring a pending award; promptly notify OIG should the insti- (8) Restricting or suspending partici- tution become aware during an inquiry pation as an NSF reviewer, advisor, or or investigation that: consultant. (1) Public health or safety is at risk; (d) For those cases governed by the (2) NSF’s resources, reputation, or debarment and suspension regulations, other interests need protecting; the standards of proof contained in the (3) There is reasonable indication of debarment and suspension regulations possible violations of civil or criminal shall control. Otherwise, NSF will take law; no final action under this section with- (4) Research activities should be sus- out a finding of misconduct supported pended; by a preponderance of the relevant evi- (5) Federal action may be needed to dence. protect the interests of a subject of the investigation or of others potentially § 689.4 Role of awardee institutions. affected; or (a) Awardee institutions bear pri- (6) The scientific community or the mary responsibility for prevention and public should be informed. detection of research misconduct and (d) Awardee institutions should for the inquiry, investigation, and ad- maintain and effectively communicate judication of alleged research mis- to their staffs appropriate policies and conduct. In most instances, NSF will procedures relating to research mis- rely on awardee institutions to conduct, which should indicate when promptly: NSF should be notified.

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§ 689.5 Initial NSF handling of mis- eral agency is underway or under ac- conduct matters. tive consideration by these agencies or (a) NSF staff who learn of alleged the NSF, OIG will determine what in- misconduct will promptly and dis- formation, if any, may be disclosed to creetly inform OIG or refer informants the subject of the investigation or to to OIG. other NSF employees. (b) The identity of informants who (d) An NSF investigation may in- wish to remain anonymous will be kept clude: confidential to the extent permitted by (1) Review of award files, reports, and law or regulation. other documents already readily avail- (c) If OIG determines that alleged re- able at NSF or in the public domain; search misconduct involves potential (2) Review of procedures or methods civil or criminal violations, OIG may and inspection of laboratory materials, refer the matter to the Department of specimens, and records at awardee in- Justice. stitutions; (d) Otherwise OIG may: (3) Interviews with subjects or wit- (1) Inform the awardee institution of nesses; the alleged research misconduct and (4) Review of any documents or other encourage it to undertake an inquiry; evidence provided by or properly ob- (2) Defer to inquiries or investiga- tainable from parties, witnesses, or tions of the awardee institution or of other sources; another Federal agency; or (5) Cooperation with other Federal (3) At any time proceed with its own agencies; and inquiry. (6) Opportunity for the subject of the (e) If OIG proceeds with its own in- investigation to be heard. quiry it will normally complete the inquiry no more than 90 days after initi- (e) OIG may invite outside consult- ating it. ants or experts to participate in an (f) On the basis of what it learns from NSF investigation. They should be ap- an inquiry and in consultation as appointed in a manner that ensures the propriate with other NSF offices, OIG official nature of their involvement will decide whether a formal NSF in- and provides them with legal protec- vestigation is warranted. tions available to federal employees. (f) OIG will make every reasonable § 689.6 Investigations. effort to complete an NSF investiga- (a) When an awardee institution or tion and to report its recommenda- another Federal agency has promptly tions, if any, to the Deputy Director initiated its own investigation, OIG within 180 days after initiating it. may defer an NSF inquiry or investiga- § 689.7 Pending proposals and awards. tion until it receives the results of that external investigation. If it does not (a) Upon learning of alleged research receive the results within 180 days, OIG misconduct OIG will identify poten- may proceed with its own investiga- tially implicated awards or proposals tion. and when appropriate, will ensure that (b) If OIG decides to initiate an NSF program, grant, and contracting offi- investigation, it must give prompt cers handling them are informed (sub- written notice to the individual or in- ject to § 689.6(c)). stitutions to be investigated, unless (b) Neither a suspicion or allegation notice would prejudice the investiga- of research misconduct nor a pending tion or unless a criminal investigation inquiry or investigation will normally is underway or under active consider- delay review of proposals. To avoid ination. If notice is delayed, it must be fluencing reviews, reviewers or panel- given as soon as it will no longer preju- ists will not be informed of allegations dice the investigation or contravene re- or of ongoing inquiries or investiga- quirements of law or Federal law-en- tions. However, if allegations, inquir- forcement policies. ies, or investigations have been ru- (c) If a criminal investigation by the mored or publicized, the responsible Department of Justice, the Federal Bu- Program Director may consult with reau of Investigation, or another Fed- OIG and, after further consultation

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with the Office of General Counsel, ei- whole or in part or, normally within 30 ther defer review, inform reviewers to days, initiate a new investigation. disregard the matter, or inform review- (b) When any satisfactory external ers of the status of the matter. investigation or an NSF investigation fails to confirm alleged misconduct— § 689.8 Interim administrative actions. (1) OIG will notify the subject of the (a) After an inquiry or during an ex- investigation and, if appropriate, those ternal or NSF investigation the Deputy who reported the suspected or alleged Director may order that interim ac- misconduct. This notification may in- tions (as described in § 689.3(c)) be clude the investigation report. taken to protect Federal resources or (2) Any interim administrative re- to guard against continuation of any strictions that were imposed will be suspected or alleged research mis- lifted. conduct. Such an order will normally (c) When any satisfactory investiga- be issued on recommendation from OIG tion confirms misconduct—(1) In cases and in consultation with the Division in which debarment is considered by of Contracts, Policy, and Oversight or OIG to be an appropriate disposition, Division of Grants and Agreements, the the case will be referred to the debar- Office of the General Counsel, the re- ring official pursuant to 2 CFR part 180 sponsible Directorate, and other parts and the procedures of 2 CFR part 180 of the Foundation as appropriate. will be followed, but: (b) When suspension is determined to (i) The debarring official will be ei- be appropriate, the case will be re- ther the Deputy Director, or an official ferred to the suspending official pursu- designated by the Deputy Director. ant to 2 CFR part 180, and the suspen- (ii) Except in unusual circumstances, sion procedures of 2 CFR part 180 will the investigation report and rec- be followed, but the suspending official ommended disposition will be included will be either the Deputy Director or among the materials provided to the an official designated by the Deputy subject of the investigation as part of Director. the notice of proposed debarment. (c) Such interim actions may be (iii) The notice of the debarring offi- taken whenever information developed cial’s decision will include instructions during an investigation indicates a on how to pursue an appeal to the Di- need to do so. Any interim action will rector. be reviewed periodically during an in- (2) In all other cases— vestigation by NSF and modified as warranted. An interested party may re- (i) Except in unusual circumstances, quest a review or modification by the the investigation report will be pro- Deputy Director of any interim action. vided by OIG to the subject of the investigation, who will be invited to sub- (d) The Deputy Director will make mit comments or rebuttal. Comments and OIG will retain a record of interim or rebuttal submitted within the period actions taken and the reasons for tak- allowed, normally 30 days, will receive ing them. full consideration and may lead to revi- (e) Interim administrative actions sion of the report or of a recommended are not final agency actions subject to disposition. appeal. (ii) Normally within 45 days after [67 FR 11937, Mar. 18, 2002, as amended at 72 completing an NSF investigation or re- FR 4944, Feb. 2, 2007] ceiving the report from a satisfactory external investigation, OIG will submit § 689.9 Dispositions. to the Deputy Director the investiga- (a) After receiving a report from an tion report, any comments or rebuttal external investigation by an awardee from the subject of the investigation, institution or another Federal agency, and a recommended disposition. The OIG will assess the accuracy and com- recommended disposition will propose pleteness of the report and whether the any final actions to be taken by NSF. investigating entity followed reason- Section 689.3 lists possible final actions able procedures. It will either rec- and considerations to be used in deter- ommend adoption of the findings in mining them.

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(iii) The Deputy Director will review 690.115 IRB records. the investigation report and OIG’s rec- 690.116 General requirements for informed ommended disposition. Before issuing a consent. disposition the Deputy Director may 690.117 Documentation of informed consent. initiate further hearings or investiga- 690.118 Applications and proposals lacking definite plans for involvement of human tion. Normally within 120 days after re- subjects. ceiving OIG’s recommendations or 690.119 Research undertaken without the in- after completion of any further pro- tention of involving human subjects. ceedings, the Deputy Director will send 690.120 Evaluation and disposition of appli- the affected individual or institution a cations and proposals for research to be written disposition, specifying actions conducted or supported by a Federal de- to be taken. The decision will include partment or agency. instructions on how to pursue an ap- 690.121 [Reserved] peal to the Director. 690.122 Use of Federal funds. 690.123 Early termination of research sup- [67 FR 11937, Mar. 18, 2002, as amended at 72 port: Evaluation of applications and pro- FR 4944, Feb. 2, 2007] posals. 690.124 Conditions. § 689.10 Appeals. AUTHORITY: 5 U.S.C. 301; 42 U.S.C. 300v–1(b). (a) An affected individual or institution may appeal to the Director in SOURCE: 82 FR 7259, 7273, Jan. 19, 2017, un- writing within 30 days after receiving less otherwise noted. the Deputy Director’s written decision. § 690.101 To what does this policy The Deputy Director’s decision be- apply? comes a final administrative action if it is not appealed within the 30 day pe- (a) Except as detailed in § 690.104, this riod. policy applies to all research involving (b) The Director may appoint an un- human subjects conducted, supported, involved NSF officer or employee to re- or otherwise subject to regulation by view an appeal and make recommenda- any Federal department or agency that tions. takes appropriate administrative ac- (c) The Director will normally inform tion to make the policy applicable to the appellant of a final decision within such research. This includes research 60 days after receiving the appeal. That conducted by Federal civilian employ- decision will be the final administra- ees or military personnel, except that tive action of the Foundation each department or agency head may adopt such procedural modifications as PART 690—PROTECTION OF may be appropriate from an administrative standpoint. It also includes re- HUMAN SUBJECTS search conducted, supported, or otherwise subject to regulation by the Fed- Sec. 690.101 To what does this policy apply? eral Government outside the United 690.102 Definitions for purposes of this pol- States. Institutions that are engaged icy. in research described in this paragraph 690.103 Assuring compliance with this pol- and institutional review boards (IRBs) icy—research conducted or supported by reviewing research that is subject to any Federal department or agency. this policy must comply with this pol- 690.104 Exempt research. icy. 690.105–690.106 [Reserved] 690.107 IRB membership. (b) [Reserved] 690.108 IRB functions and operations. (c) Department or agency heads re- 690.109 IRB review of research. tain final judgment as to whether a 690.110 Expedited review procedures for cer- particular activity is covered by this tain kinds of research involving no more policy and this judgment shall be exer- than minimal risk, and for minor cised consistent with the ethical prin- changes in approved research. 62 690.111 Criteria for IRB approval of re- ciples of the Belmont Report. search. 690.112 Review by institution. 62 The National Commission for the Protec- 690.113 Suspension or termination of IRB tion of Human Subjects of Biomedical and approval of research. Behavioral Research.– Belmont Report. 690.114 Cooperative research. Continued

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(d) Department or agency heads may dures to be followed are consistent require that specific research activities with the principles of the Belmont Re- or classes of research activities con- port.63 Except when otherwise required ducted, supported, or otherwise subject by statute or Executive Order, the de- to regulation by the Federal depart- partment or agency head shall forward ment or agency but not otherwise cov- advance notices of these actions to the ered by this policy comply with some Office for Human Research Protec- or all of the requirements of this pol- tions, Department of Health and icy. Human Services (HHS), or any suc- (e) Compliance with this policy re- cessor office, or to the equivalent office quires compliance with pertinent fed- within the appropriate Federal depart- eral laws or regulations that provide ment or agency, and shall also publish additional protections for human sub- them in the FEDERAL REGISTER or in jects. such other manner as provided in de- (f) This policy does not affect any partment or agency procedures. The state or local laws or regulations (in- waiver notice must include a state- cluding tribal law passed by the official ment that identifies the conditions governing body of an American Indian under which the waiver will be applied or Alaska Native tribe) that may oth- and a justification as to why the waiv- erwise be applicable and that provide er is appropriate for the research, in- additional protections for human sub- cluding how the decision is consistent jects. with the principles of the Belmont Re- (g) This policy does not affect any port. foreign laws or regulations that may (j) Federal guidance on the require- otherwise be applicable and that pro- ments of this policy shall be issued vide additional protections to human only after consultation, for the purpose subjects of research. of harmonization (to the extent appro- (h) When research covered by this priate), with other Federal depart- policy takes place in foreign countries, ments and agencies that have adopted procedures normally followed in the this policy, unless such consultation is foreign countries to protect human not feasible. subjects may differ from those set (k) [Reserved] forth in this policy. In these cir- (l) Compliance dates and transition cumstances, if a department or agency provisions: head determines that the procedures (1) Pre-2018 Requirements. For pur- prescribed by the institution afford poses of this section, the pre-2018 Re- protections that are at least equivalent quirements means this subpart as pub- to those provided in this policy, the de- lished in the 2016 edition of the Code of partment or agency head may approve Federal Regulations. the substitution of the foreign procedures in lieu of the procedural require- (2) 2018 Requirements. For purposes of ments provided in this policy. Except this section, the 2018 Requirements when otherwise required by statute, means the Federal Policy for the Pro- Executive Order, or the department or tection of Human Subjects require- agency head, notices of these actions ments contained in this part. The gen- as they occur will be published in the eral compliance date for the 2018 Re- quirements is January 21, 2019. The FEDERAL REGISTER or will be otherwise published as provided in department or compliance date for § 690.114(b) (cooper- agency procedures. ative research) of the 2018 Require- (i) Unless otherwise required by law, ments is January 20, 2020. department or agency heads may waive (3) Research subject to pre-2018 require- the applicability of some or all of the ments. The pre-2018 Requirements shall provisions of this policy to specific re- apply to the following research, unless search activities or classes of research the research is transitioning to comply activities otherwise covered by this with the 2018 Requirements in accord- policy, provided the alternative proce- ance with paragraph (l)(4) of this section: Washington, DC: U.S. Department of Health and Human Services. 1979. 63 Id.

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(i) Research initially approved by an (ii) Research for which IRB review is IRB under the pre-2018 Requirements waived pursuant to paragraph (i) of before January 21, 2019; this section on or after January 21, (ii) Research for which IRB review 2019; and was waived pursuant to § 690.101(i) of (iii) Research for which a determina- the pre-2018 Requirements before Janu- tion is made that the research is ex- ary 21, 2019; and empt on or after January 21, 2019. (iii) Research for which a determina- (m) Severability: Any provision of tion was made that the research was this part held to be invalid or unen- exempt under § 690.101(b) of the pre-2018 forceable by its terms, or as applied to Requirements before January 21, 2019. any person or circumstance, shall be (4) Transitioning research. If, on or construed so as to continue to give after July 19, 2018, an institution plan- maximum effect to the provision per- ning or engaged in research otherwise mitted by law, unless such holding covered by paragraph (l)(3) of this sec- shall be one of utter invalidity or unen- tion determines that such research in- forceability, in which event the provi- stead will transition to comply with sion shall be severable from this part the 2018 Requirements, the institution and shall not affect the remainder or an IRB must document and date thereof or the application of the provi- such determination. sion to other persons not similarly sit- (i) If the determination to transition uated or to other dissimilar cir- is documented between July 19, 2018, cumstances. and January 20, 2019, the research [82 FR 7259, 7273, Jan. 19, 2017, as amended at shall: 83 FR 28519, July 19, 2018] (A) Beginning on the date of such documentation through January 20, § 690.102 Definitions for purposes of 2019, comply with the pre-2018 Require- this policy. ments, except that the research shall (a) Certification means the official no- comply with the following: tification by the institution to the sup- (1) Section 690.102(l) of the 2018 Re- porting Federal department or agency quirements (definition of research) (in- component, in accordance with the re- stead of § 690.102(d) of the pre-2018 Re- quirements of this policy, that a requirements); search project or activity involving (2) Section 690.103(d) of the 2018 Re- human subjects has been reviewed and quirements (revised certification re- approved by an IRB in accordance with quirement that eliminates IRB review an approved assurance. of application or proposal) (instead of (b) Clinical trial means a research § 690.103(f) of the pre-2018 Require- study in which one or more human sub- ments); and jects are prospectively assigned to one (3) Section 690.109(f)(1)(i) and (iii) of or more interventions (which may in- the 2018 Requirements (exceptions to clude placebo or other control) to mandated continuing review) (instead evaluate the effects of the interven- of § 690.103(b), as related to the require- tions on biomedical or behavioral ment for continuing review, and in ad- health-related outcomes. dition to § 690.109, of the pre-2018 Re- (c) Department or agency head means quirements); and the head of any Federal department or (B) Beginning on January 21, 2019, agency, for example, the Secretary of comply with the 2018 Requirements. HHS, and any other officer or employee (ii) If the determination to transition of any Federal department or agency is documented on or after January 21, to whom the authority provided by 2019, the research shall, beginning on these regulations to the department or the date of such documentation, com- agency head has been delegated. ply with the 2018 Requirements. (d) Federal department or agency refers (5) Research subject to 2018 Require- to a federal department or agency (the ments. The 2018 Requirements shall department or agency itself rather apply to the following research: than its bureaus, offices or divisions) (i) Research initially approved by an that takes appropriate administrative IRB on or after January 21, 2019; action to make this policy applicable

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to the research involving human sub- 1 year and regularly thereafter (at jects it conducts, supports, or other- least every 4 years). This process will wise regulates (e.g., the U.S. Depart- be conducted by collaboration among ment of Health and Human Services, the Federal departments and agencies the U.S. Department of Defense, or the implementing this policy. If appro- Central Intelligence Agency). priate and permitted by law, such Fed- (e)(1) Human subject means a living eral departments and agencies may individual about whom an investigator alter the interpretation of these terms, (whether professional or student) con- including through the use of guidance. ducting research: (ii) Upon consultation with appro- (i) Obtains information or biospeci- priate experts, assess whether there are mens through intervention or inter- analytic technologies or techniques action with the individual, and uses, that should be considered by investiga- studies, or analyzes the information or tors to generate ‘‘identifiable private biospecimens; or information,’’ as defined in paragraph (ii) Obtains, uses, studies, analyzes, (e)(5) of this section, or an ‘‘identifi- or generates identifiable private infor- able biospecimen,’’ as defined in para- mation or identifiable biospecimens. graph (e)(6) of this section. This assess- (2) Intervention includes both physical ment shall take place within 1 year and procedures by which information or regularly thereafter (at least every 4 biospecimens are gathered (e.g., years). This process will be conducted venipuncture) and manipulations of the by collaboration among the Federal de- subject or the subject’s environment partments and agencies implementing that are performed for research pur- this policy. Any such technologies or poses. techniques will be included on a list of (3) Interaction includes communica- technologies or techniques that tion or interpersonal contact between produce identifiable private informa- investigator and subject. tion or identifiable biospecimens. This (4) Private information includes infor- list will be published in the FEDERAL mation about behavior that occurs in a REGISTER after notice and an oppor- context in which an individual can rea- tunity for public comment. The Sec- sonably expect that no observation or retary, HHS, shall maintain the list on recording is taking place, and informa- a publicly accessible Web site. tion that has been provided for specific (f) Institution means any public or purposes by an individual and that the private entity, or department or agen- individual can reasonably expect will cy (including federal, state, and other not be made public (e.g., a medical agencies). record). (g) IRB means an institutional review (5) Identifiable private information is board established in accord with and private information for which the iden- for the purposes expressed in this pol- tity of the subject is or may readily be icy. ascertained by the investigator or asso- (h) IRB approval means the deter- ciated with the information. mination of the IRB that the research (6) An identifiable biospecimen is a bio- has been reviewed and may be con- specimen for which the identity of the ducted at an institution within the subject is or may readily be constraints set forth by the IRB and by ascertained by the investigator or asso- other institutional and federal require- ciated with the biospecimen. ments. (7) Federal departments or agencies (i) Legally authorized representative implementing this policy shall: means an individual or judicial or (i) Upon consultation with appro- other body authorized under applicable priate experts (including experts in law to consent on behalf of a prospec- data matching and re-identification), tive subject to the subject’s participa- reexamine the meaning of ‘‘identifiable tion in the procedure(s) involved in the private information,’’ as defined in research. If there is no applicable law paragraph (e)(5) of this section, and addressing this issue, legally authorized ‘‘identifiable biospecimen,’’ as defined representative means an individual rec- in paragraph (e)(6) of this section. This ognized by institutional policy as ac- reexamination shall take place within ceptable for providing consent in the

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nonresearch context on behalf of the ease outbreaks, or conditions of public prospective subject to the subject’s health importance (including trends, participation in the procedure(s) in- signals, risk factors, patterns in dis- volved in the research. eases, or increases in injuries from (j) Minimal risk means that the prob- using consumer products). Such activi- ability and magnitude of harm or dis- ties include those associated with pro- comfort anticipated in the research are viding timely situational awareness not greater in and of themselves than and priority setting during the course those ordinarily encountered in daily of an event or crisis that threatens life or during the performance of rou- public health (including natural or tine physical or psychological exami- man-made disasters). nations or tests. (3) Collection and analysis of infor- (k) Public health authority means an mation, biospecimens, or records by or agency or authority of the United for a criminal justice agency for activi- States, a state, a territory, a political ties authorized by law or court order subdivision of a state or territory, an solely for criminal justice or criminal Indian tribe, or a foreign government, investigative purposes. or a person or entity acting under a (4) Authorized operational activities grant of authority from or contract (as determined by each agency) in sup- with such public agency, including the port of intelligence, homeland secu- employees or agents of such public rity, defense, or other national secu- agency or its contractors or persons or rity missions. entities to whom it has granted au- (m) Written, or in writing, for purposes thority, that is responsible for public of this part, refers to writing on a tan- health matters as part of its official gible medium (e.g., paper) or in an elec- mandate. tronic format. (l) Research means a systematic investigation, including research devel- § 690.103 Assuring compliance with opment, testing, and evaluation, de- this policy—research conducted or signed to develop or contribute to gen- supported by any Federal depart- eralizable knowledge. Activities that ment or agency. meet this definition constitute re- (a) Each institution engaged in research for purposes of this policy, search that is covered by this policy, whether or not they are conducted or with the exception of research eligible supported under a program that is con- for exemption under § 690.104, and that sidered research for other purposes. is conducted or supported by a Federal For example, some demonstration and department or agency, shall provide service programs may include research written assurance satisfactory to the activities. For purposes of this part, department or agency head that it will the following activities are deemed not comply with the requirements of this to be research: policy. In lieu of requiring submission (1) Scholarly and journalistic activi- of an assurance, individual department ties (e.g., oral history, journalism, bi- or agency heads shall accept the exist- ography, literary criticism, legal re- ence of a current assurance, appro- search, and historical scholarship), in- priate for the research in question, on cluding the collection and use of infor- file with the Office for Human Re- mation, that focus directly on the spe- search Protections, HHS, or any suc- cific individuals about whom the infor- cessor office, and approved for Federal- mation is collected. wide use by that office. When the exist- (2) Public health surveillance activi- ence of an HHS-approved assurance is ties, including the collection and test- accepted in lieu of requiring submis- ing of information or biospecimens, sion of an assurance, reports (except conducted, supported, requested, or- certification) required by this policy to dered, required, or authorized by a pub- be made to department and agency lic health authority. Such activities heads shall also be made to the Office are limited to those necessary to allow for Human Research Protections, HHS, a public health authority to identify, or any successor office. Federal depart- monitor, assess, or investigate poten- ments and agencies will conduct or tial public health signals, onsets of dis- support research covered by this policy

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only if the institution has provided an the institution, or as set forth in a re- assurance that it will comply with the search protocol). requirements of this policy, as provided (Approved by the Office of Management and in this section, and only if the institu- Budget under Control Number 0990–0260) tion has certified to the department or agency head that the research has been § 690.104 Exempt research. reviewed and approved by an IRB (if (a) Unless otherwise required by law such certification is required by or by department or agency heads, re- § 690.103(d)). search activities in which the only in- (b) The assurance shall be executed volvement of human subjects will be in by an individual authorized to act for one or more of the categories in para- the institution and to assume on behalf graph (d) of this section are exempt of the institution the obligations im- from the requirements of this policy, posed by this policy and shall be filed except that such activities must com- in such form and manner as the depart- ply with the requirements of this sec- ment or agency head prescribes. tion and as specified in each category. (c) The department or agency head (b) Use of the exemption categories may limit the period during which any for research subject to the require- assurance shall remain effective or ments of subparts B, C, and D: Applica- otherwise condition or restrict the as- tion of the exemption categories to re- surance. search subject to the requirements of (d) Certification is required when the 45 CFR part 46, subparts B, C, and D, is research is supported by a Federal de- as follows: partment or agency and not otherwise (1) Subpart B. Each of the exemptions waived under § 690.101(i) or exempted at this section may be applied to re- under § 690.104. For such research, insti- search subject to subpart B if the con- tutions shall certify that each proposed ditions of the exemption are met. research study covered by the assur- (2) Subpart C. The exemptions at this ance and this section has been reviewed section do not apply to research sub- and approved by the IRB. Such certifi- ject to subpart C, except for research cation must be submitted as prescribed aimed at involving a broader subject by the Federal department or agency population that only incidentally in- component supporting the research. cludes prisoners. Under no condition shall research cov- (3) Subpart D. The exemptions at ered by this section be initiated prior paragraphs (d)(1), (4), (5), (6), (7), and (8) to receipt of the certification that the of this section may be applied to re- research has been reviewed and ap- search subject to subpart D if the con- proved by the IRB. ditions of the exemption are met. Para- (e) For nonexempt research involving graphs (d)(2)(i) and (ii) of this section human subjects covered by this policy only may apply to research subject to (or exempt research for which limited subpart D involving educational tests IRB review takes place pursuant to or the observation of public behavior § 690.104(d)(2)(iii), (d)(3)(i)(C), or (d)(7) or when the investigator(s) do not partici- (8)) that takes place at an institution pate in the activities being observed. in which IRB oversight is conducted by Paragraph (d)(2)(iii) of this section an IRB that is not operated by the in- may not be applied to research subject stitution, the institution and the orga- to subpart D. nization operating the IRB shall docu- (c) [Reserved] ment the institution’s reliance on the (d) Except as described in paragraph IRB for oversight of the research and (a) of this section, the following cat- the responsibilities that each entity egories of human subjects research are will undertake to ensure compliance exempt from this policy: with the requirements of this policy (1) Research, conducted in estab- (e.g., in a written agreement between lished or commonly accepted edu- the institution and the IRB, by imple- cational settings, that specifically in- mentation of an institution-wide policy volves normal educational practices directive providing the allocation of re- that are not likely to adversely impact sponsibilities between the institution students’ opportunity to learn required and an IRB that is not affiliated with educational content or the assessment

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of educators who provide instruction. cational advancement, or reputation; This includes most research on regular or and special education instructional (C) The information obtained is re- strategies, and research on the effec- corded by the investigator in such a tiveness of or the comparison among manner that the identity of the human instructional techniques, curricula, or subjects can readily be ascertained, di- classroom management methods. rectly or through identifiers linked to (2) Research that only includes inter- the subjects, and an IRB conducts a actions involving educational tests limited IRB review to make the deter- (cognitive, diagnostic, aptitude, mination required by § 690.111(a)(7). achievement), survey procedures, (ii) For the purpose of this provision, interview procedures, or observation of public behavior (including visual or au- benign behavioral interventions are ditory recording) if at least one of the brief in duration, harmless, painless, following criteria is met: not physically invasive, not likely to (i) The information obtained is re- have a significant adverse lasting im- corded by the investigator in such a pact on the subjects, and the investi- manner that the identity of the human gator has no reason to think the sub- subjects cannot readily be ascertained, jects will find the interventions offen- directly or through identifiers linked sive or embarrassing. Provided all such to the subjects; criteria are met, examples of such be- (ii) Any disclosure of the human sub- nign behavioral interventions would in- jects’ responses outside the research clude having the subjects play an on- would not reasonably place the sub- line game, having them solve puzzles jects at risk of criminal or civil liabil- under various noise conditions, or hav- ity or be damaging to the subjects’ fi- ing them decide how to allocate a nancial standing, employability, edu- nominal amount of received cash be- cational advancement, or reputation; tween themselves and someone else. or (iii) If the research involves deceiv- (iii) The information obtained is re- ing the subjects regarding the nature corded by the investigator in such a or purposes of the research, this ex- manner that the identity of the human emption is not applicable unless the subjects can readily be ascertained, di- subject authorizes the deception rectly or through identifiers linked to through a prospective agreement to the subjects, and an IRB conducts a limited IRB review to make the deter- participate in research in cir- mination required by § 690.111(a)(7). cumstances in which the subject is in- (3)(i) Research involving benign be- formed that he or she will be unaware havioral interventions in conjunction of or misled regarding the nature or with the collection of information from purposes of the research. an adult subject through verbal or (4) Secondary research for which con- written responses (including data sent is not required: Secondary re- entry) or audiovisual recording if the search uses of identifiable private in- subject prospectively agrees to the formation or identifiable biospecimens, intervention and information collec- if at least one of the following criteria tion and at least one of the following is met: criteria is met: (i) The identifiable private informa- (A) The information obtained is re- tion or identifiable biospecimens are corded by the investigator in such a publicly available; manner that the identity of the human (ii) Information, which may include subjects cannot readily be ascertained, information about biospecimens, is re- directly or through identifiers linked corded by the investigator in such a to the subjects; manner that the identity of the human (B) Any disclosure of the human sub- subjects cannot readily be ascertained jects’ responses outside the research would not reasonably place the sub- directly or through identifiers linked jects at risk of criminal or civil liabil- to the subjects, the investigator does ity or be damaging to the subjects’ fi- not contact the subjects, and the inves- nancial standing, employability, edu- tigator will not re-identify subjects;

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(iii) The research involves only infor- (i) Each Federal department or agen- mation collection and analysis involv- cy conducting or supporting the re- ing the investigator’s use of identifi- search and demonstration projects able health information when that use must establish, on a publicly accessible is regulated under 45 CFR parts 160 and Federal Web site or in such other man- 164, subparts A and E, for the purposes ner as the department or agency head of ‘‘health care operations’’ or ‘‘re- may determine, a list of the research search’’ as those terms are defined at and demonstration projects that the 45 CFR 164.501 or for ‘‘public health ac- Federal department or agency conducts tivities and purposes’’ as described or supports under this provision. The under 45 CFR 164.512(b); or research or demonstration project (iv) The research is conducted by, or must be published on this list prior to on behalf of, a Federal department or commencing the research involving agency using government-generated or human subjects. government-collected information ob- (ii) [Reserved] tained for nonresearch activities, if the (6) Taste and food quality evaluation research generates identifiable private and consumer acceptance studies: information that is or will be main- (i) If wholesome foods without addi- tained on information technology that tives are consumed, or is subject to and in compliance with (ii) If a food is consumed that con- section 208(b) of the E-Government Act tains a food ingredient at or below the of 2002, 44 U.S.C. 3501 note, if all of the level and for a use found to be safe, or identifiable private information col- agricultural chemical or environ- lected, used, or generated as part of the mental contaminant at or below the activity will be maintained in systems level found to be safe, by the Food and of records subject to the Privacy Act of Drug Administration or approved by 1974, 5 U.S.C. 552a, and, if applicable, the Environmental Protection Agency the information used in the research or the Food Safety and Inspection was collected subject to the Paperwork Service of the U.S. Department of Agri- Reduction Act of 1995, 44 U.S.C. 3501 et culture. seq. (7) Storage or maintenance for sec- (5) Research and demonstration ondary research for which broad con- projects that are conducted or sup- sent is required: Storage or mainte- ported by a Federal department or nance of identifiable private informa- agency, or otherwise subject to the ap- tion or identifiable biospecimens for proval of department or agency heads potential secondary research use if an (or the approval of the heads of bureaus IRB conducts a limited IRB review and or other subordinate agencies that makes the determinations required by have been delegated authority to con- § 690.111(a)(8). duct the research and demonstration (8) Secondary research for which projects), and that are designed to broad consent is required: Research in- study, evaluate, improve, or otherwise volving the use of identifiable private examine public benefit or service pro- information or identifiable biospeci- grams, including procedures for obtain- mens for secondary research use, if the ing benefits or services under those following criteria are met: programs, possible changes in or alter- (i) Broad consent for the storage, natives to those programs or proce- maintenance, and secondary research dures, or possible changes in methods use of the identifiable private informa- or levels of payment for benefits or tion or identifiable biospecimens was services under those programs. Such obtained in accordance with projects include, but are not limited to, § 690.116(a)(1) through (4), (a)(6), and (d); internal studies by Federal employees, (ii) Documentation of informed con- and studies under contracts or consent or waiver of documentation of sulting arrangements, cooperative consent was obtained in accordance agreements, or grants. Exempt projects with § 690.117; also include waivers of otherwise man- (iii) An IRB conducts a limited IRB datory requirements using authorities review and makes the determination such as sections 1115 and 1115A of the required by § 690.111(a)(7) and makes Social Security Act, as amended. the determination that the research to

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be conducted is within the scope of the person who is affiliated with the insti- broad consent referenced in paragraph tution. (d)(8)(i) of this section; and (iv) The in- (d) No IRB may have a member par- vestigator does not include returning ticipate in the IRB’s initial or con- individual research results to subjects tinuing review of any project in which as part of the study plan. This provi- the member has a conflicting interest, sion does not prevent an investigator except to provide information re- from abiding by any legal requirements quested by the IRB. to return individual research results. (e) An IRB may, in its discretion, invite individuals with competence in (Approved by the Office of Management and special areas to assist in the review of Budget under Control Number 0990–0260) issues that require expertise beyond or §§ 690.105–690.106 [Reserved] in addition to that available on the IRB. These individuals may not vote § 690.107 IRB membership. with the IRB. (a) Each IRB shall have at least five § 690.108 IRB functions and oper- members, with varying backgrounds to ations. promote complete and adequate review (a) In order to fulfill the require- of research activities commonly con- ments of this policy each IRB shall: ducted by the institution. The IRB (1) Have access to meeting space and shall be sufficiently qualified through sufficient staff to support the IRB’s re- the experience and expertise of its view and recordkeeping duties; members (professional competence), (2) Prepare and maintain a current and the diversity of its members, in- list of the IRB members identified by cluding race, gender, and cultural name; earned degrees; representative backgrounds and sensitivity to such capacity; indications of experience issues as community attitudes, to pro- such as board certifications or licenses mote respect for its advice and counsel sufficient to describe each member’s in safeguarding the rights and welfare chief anticipated contributions to IRB of human subjects. The IRB shall be deliberations; and any employment or able to ascertain the acceptability of other relationship between each mem- proposed research in terms of institu- ber and the institution, for example, tional commitments (including policies full-time employee, part-time em- and resources) and regulations, appli- ployee, member of governing panel or cable law, and standards of professional board, stockholder, paid or unpaid con- conduct and practice. The IRB shall sultant; therefore include persons knowledge- (3) Establish and follow written pro- able in these areas. If an IRB regularly cedures for: reviews research that involves a cat- (i) Conducting its initial and con- egory of subjects that is vulnerable to tinuing review of research and for re- coercion or undue influence, such as porting its findings and actions to the children, prisoners, individuals with investigator and the institution; impaired decision-making capacity, or (ii) Determining which projects re- economically or educationally dis- quire review more often than annually advantaged persons, consideration and which projects need verification shall be given to the inclusion of one or from sources other than the investiga- more individuals who are knowledge- tors that no material changes have ocable about and experienced in working curred since previous IRB review; and with these categories of subjects. (iii) Ensuring prompt reporting to (b) Each IRB shall include at least the IRB of proposed changes in a re- one member whose primary concerns search activity, and for ensuring that are in scientific areas and at least one investigators will conduct the research member whose primary concerns are in activity in accordance with the terms nonscientific areas. of the IRB approval until any proposed (c) Each IRB shall include at least changes have been reviewed and ap- one member who is not otherwise affili- proved by the IRB, except when nec- ated with the institution and who is essary to eliminate apparent imme- not part of the immediate family of a diate hazards to the subject.

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(4) Establish and follow written pro- (d) An IRB shall notify investigators cedures for ensuring prompt reporting and the institution in writing of its de- to the IRB; appropriate institutional cision to approve or disapprove the pro- officials; the department or agency posed research activity, or of modifica- head; and the Office for Human Re- tions required to secure IRB approval search Protections, HHS, or any suc- of the research activity. If the IRB de- cessor office, or the equivalent office cides to disapprove a research activity, within the appropriate Federal depart- it shall include in its written notifica- ment or agency of tion a statement of the reasons for its (i) Any unanticipated problems in- decision and give the investigator an volving risks to subjects or others or opportunity to respond in person or in any serious or continuing noncompli- writing. ance with this policy or the require- (e) An IRB shall conduct continuing ments or determinations of the IRB; review of research requiring review by and the convened IRB at intervals appro- (ii) Any suspension or termination of priate to the degree of risk, not less IRB approval. than once per year, except as described (b) Except when an expedited review in § 690.109(f). procedure is used (as described in (f)(1) Unless an IRB determines oth- § 690.110), an IRB must review proposed erwise, continuing review of research is research at convened meetings at not required in the following cir- which a majority of the members of the cumstances: IRB are present, including at least one (i) Research eligible for expedited re- member whose primary concerns are in view in accordance with § 690.110; nonscientific areas. In order for the research to be approved, it shall receive (ii) Research reviewed by the IRB in the approval of a majority of those accordance with the limited IRB re- members present at the meeting. view described in § 690.104(d)(2)(iii), (d)(3)(i)(C), or (d)(7) or (8); (Approved by the Office of Management and (iii) Research that has progressed to Budget under Control Number 0990–0260) the point that it involves only one or both of the following, which are part of § 690.109 IRB review of research. the IRB-approved study: (a) An IRB shall review and have au- (A) Data analysis, including analysis thority to approve, require modifica- of identifiable private information or tions in (to secure approval), or dis- identifiable biospecimens, or approve all research activities covered (B) Accessing follow-up clinical data by this policy, including exempt re- from procedures that subjects would search activities under § 690.104 for undergo as part of clinical care. which limited IRB review is a condi- (2) [Reserved] tion of exemption (under § 690.104(d)(2)(iii), (d)(3)(i)(C), and (d)(7), (g) An IRB shall have authority to and (8)). observe or have a third party observe (b) An IRB shall require that infor- the consent process and the research. mation given to subjects (or legally au- (Approved by the Office of Management and thorized representatives, when appro- Budget under Control Number 0990–0260) priate) as part of informed consent is in accordance with § 690.116. The IRB § 690.110 Expedited review procedures may require that information, in addi- for certain kinds of research involv- tion to that specifically mentioned in ing no more than minimal risk, and § 690.116, be given to the subjects when for minor changes in approved re- in the IRB’s judgment the information search. would meaningfully add to the protec- (a) The Secretary of HHS has estab- tion of the rights and welfare of sub- lished, and published as a Notice in the jects. FEDERAL REGISTER, a list of categories (c) An IRB shall require documenta- of research that may be reviewed by tion of informed consent or may waive the IRB through an expedited review documentation in accordance with procedure. The Secretary will evaluate § 690.117. the list at least every 8 years and

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amend it, as appropriate, after con- (ii) Whenever appropriate, by using sultation with other federal depart- procedures already being performed on ments and agencies and after publica- the subjects for diagnostic or treat- tion in the FEDERAL REGISTER for pub- ment purposes. lic comment. A copy of the list is (2) Risks to subjects are reasonable available from the Office for Human in relation to anticipated benefits, if Research Protections, HHS, or any suc- any, to subjects, and the importance of cessor office. the knowledge that may reasonably be (b)(1) An IRB may use the expedited expected to result. In evaluating risks review procedure to review the fol- and benefits, the IRB should consider lowing: only those risks and benefits that may (i) Some or all of the research ap- result from the research (as distin- pearing on the list described in para- guished from risks and benefits of graph (a) of this section, unless the re- therapies subjects would receive even if viewer determines that the study in- not participating in the research). The volves more than minimal risk; IRB should not consider possible long- (ii) Minor changes in previously ap- range effects of applying knowledge proved research during the period for gained in the research (e.g., the pos- which approval is authorized; or sible effects of the research on public (iii) Research for which limited IRB policy) as among those research risks review is a condition of exemption that fall within the purview of its re- under § 690.104(d)(2)(iii), (d)(3)(i)(C), and sponsibility. (d)(7) and (8). (3) Selection of subjects is equitable. In making this assessment the IRB (2) Under an expedited review proce- should take into account the purposes dure, the review may be carried out by of the research and the setting in the IRB chairperson or by one or more which the research will be conducted. experienced reviewers designated by The IRB should be particularly cog- the chairperson from among members nizant of the special problems of re- of the IRB. In reviewing the research, search that involves a category of sub- the reviewers may exercise all of the jects who are vulnerable to coercion or authorities of the IRB except that the undue influence, such as children, pris- reviewers may not disapprove the re- oners, individuals with impaired deci- search. A research activity may be dis- sion-making capacity, or economically approved only after review in accord- or educationally disadvantaged per- ance with the nonexpedited procedure sons. set forth in § 690.108(b). (4) Informed consent will be sought (c) Each IRB that uses an expedited from each prospective subject or the review procedure shall adopt a method subject’s legally authorized representa- for keeping all members advised of re- tive, in accordance with, and to the ex- search proposals that have been ap- tent required by, § 690.116. proved under the procedure. (5) Informed consent will be appro- (d) The department or agency head priately documented or appropriately may restrict, suspend, terminate, or waived in accordance with § 690.117. choose not to authorize an institu- (6) When appropriate, the research tion’s or IRB’s use of the expedited re- plan makes adequate provision for view procedure. monitoring the data collected to ensure the safety of subjects. § 690.111 Criteria for IRB approval of (7) When appropriate, there are ade- research. quate provisions to protect the privacy (a) In order to approve research cov- of subjects and to maintain the con- ered by this policy the IRB shall deter- fidentiality of data. mine that all of the following require- (i) The Secretary of HHS will, after ments are satisfied: consultation with the Office of Man- (1) Risks to subjects are minimized: agement and Budget’s privacy office (i) By using procedures that are con- and other Federal departments and sistent with sound research design and agencies that have adopted this policy, that do not unnecessarily expose sub- issue guidance to assist IRBs in assess- jects to risk, and ing what provisions are adequate to

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protect the privacy of subjects and to appropriate institutional officials, and maintain the confidentiality of data. the department or agency head. (ii) [Reserved] (Approved by the Office of Management and (8) For purposes of conducting the Budget under Control Number 0990–0260) limited IRB review required by § 690.104(d)(7)), the IRB need not make § 690.114 Cooperative research. the determinations at paragraphs (a)(1) (a) Cooperative research projects are through (7) of this section, and shall those projects covered by this policy make the following determinations: that involve more than one institution. (i) Broad consent for storage, mainte- In the conduct of cooperative research nance, and secondary research use of projects, each institution is responsible identifiable private information or for safeguarding the rights and welfare identifiable biospecimens is obtained in of human subjects and for complying accordance with the requirements of with this policy. § 690.116(a)(1)–(4), (a)(6), and (d); (b)(1) Any institution located in the (ii) Broad consent is appropriately United States that is engaged in coop- documented or waiver of documenta- erative research must rely upon ap- tion is appropriate, in accordance with proval by a single IRB for that portion § 690.117; and of the research that is conducted in the (iii) If there is a change made for re- United States. The reviewing IRB will search purposes in the way the identifi- be identified by the Federal depart- able private information or identifiable ment or agency supporting or con- biospecimens are stored or maintained, ducting the research or proposed by the there are adequate provisions to pro- lead institution subject to the accept- tect the privacy of subjects and to ance of the Federal department or maintain the confidentiality of data. agency supporting the research. (b) When some or all of the subjects (2) The following research is not sub- are likely to be vulnerable to coercion ject to this provision: (i) Cooperative research for which or undue influence, such as children, more than single IRB review is re- prisoners, individuals with impaired quired by law (including tribal law decision-making capacity, or economi- passed by the official governing body of cally or educationally disadvantaged an American Indian or Alaska Native persons, additional safeguards have tribe); or been included in the study to protect (ii) Research for which any Federal the rights and welfare of these sub- department or agency supporting or jects. conducting the research determines and documents that the use of a single § 690.112 Review by institution. IRB is not appropriate for the par- Research covered by this policy that ticular context. has been approved by an IRB may be (c) For research not subject to para- subject to further appropriate review graph (b) of this section, an institution and approval or disapproval by officials participating in a cooperative project of the institution. However, those offi- may enter into a joint review arrange- cials may not approve the research if it ment, rely on the review of another has not been approved by an IRB. IRB, or make similar arrangements for avoiding duplication of effort. § 690.113 Suspension or termination of IRB approval of research. § 690.115 IRB records. An IRB shall have authority to sus- (a) An institution, or when appro- pend or terminate approval of research priate an IRB, shall prepare and main- that is not being conducted in accord- tain adequate documentation of IRB ance with the IRB’s requirements or activities, including the following: that has been associated with unex- (1) Copies of all research proposals re- pected serious harm to subjects. Any viewed, scientific evaluations, if any, suspension or termination of approval that accompany the proposals, ap- shall include a statement of the rea- proved sample consent forms, progress sons for the IRB’s action and shall be reports submitted by investigators, and reported promptly to the investigator, reports of injuries to subjects.

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(2) Minutes of IRB meetings, which and apply to consent obtained in ac- shall be in sufficient detail to show at- cordance with the requirements set tendance at the meetings; actions forth in paragraphs (b) through (d) of taken by the IRB; the vote on these ac- this section. Broad consent may be ob- tions including the number of members tained in lieu of informed consent ob- voting for, against, and abstaining; the tained in accordance with paragraphs basis for requiring changes in or dis- (b) and (c) of this section only with re- approving research; and a written sum- spect to the storage, maintenance, and mary of the discussion of controverted secondary research uses of identifiable issues and their resolution. private information and identifiable (3) Records of continuing review ac- biospecimens. Waiver or alteration of tivities, including the rationale for consent in research involving public conducting continuing review of re- benefit and service programs conducted search that otherwise would not re- by or subject to the approval of state quire continuing review as described in or local officials is described in para- § 690.109(f)(1). graph (e) of this section. General waiv- (4) Copies of all correspondence be- er or alteration of informed consent is tween the IRB and the investigators. described in paragraph (f) of this sec- (5) A list of IRB members in the same tion. Except as provided elsewhere in detail as described in § 690.108(a)(2). this policy: (6) Written procedures for the IRB in (1) Before involving a human subject the same detail as described in in research covered by this policy, an § 690.108(a)(3) and (4). investigator shall obtain the legally ef- (7) Statements of significant new fective informed consent of the subject findings provided to subjects, as re- or the subject’s legally authorized rep- quired by § 690.116(c)(5). resentative. (8) The rationale for an expedited re- (2) An investigator shall seek in- viewer’s determination under formed consent only under cir- § 690.110(b)(1)(i) that research appearing cumstances that provide the prospec- on the expedited review list described tive subject or the legally authorized in § 690.110(a) is more than minimal representative sufficient opportunity risk. to discuss and consider whether or not (9) Documentation specifying the re- to participate and that minimize the sponsibilities that an institution and possibility of coercion or undue influ- an organization operating an IRB each ence. will undertake to ensure compliance (3) The information that is given to with the requirements of this policy, as the subject or the legally authorized described in § 690.103(e). representative shall be in language un- (b) The records required by this pol- derstandable to the subject or the le- icy shall be retained for at least 3 gally authorized representative. years, and records relating to research (4) The prospective subject or the le- that is conducted shall be retained for gally authorized representative must at least 3 years after completion of the be provided with the information that research. The institution or IRB may a reasonable person would want to maintain the records in printed form, have in order to make an informed de- or electronically. All records shall be cision about whether to participate, accessible for inspection and copying and an opportunity to discuss that in- by authorized representatives of the formation. Federal department or agency at rea- (5) Except for broad consent obtained sonable times and in a reasonable man- in accordance with paragraph (d) of ner. this section: (Approved by the Office of Management and (i) Informed consent must begin with Budget under Control Number 0990–0260) a concise and focused presentation of the key information that is most likely § 690.116 General requirements for in- to assist a prospective subject or le- formed consent. gally authorized representative in un- (a) General. General requirements for derstanding the reasons why one might informed consent, whether written or or might not want to participate in the oral, are set forth in this paragraph research. This part of the informed

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consent must be organized and pre- (7) An explanation of whom to consented in a way that facilitates com- tact for answers to pertinent questions prehension. about the research and research sub- (ii) Informed consent as a whole must jects’ rights, and whom to contact in present information in sufficient detail the event of a research-related injury relating to the research, and must be to the subject; organized and presented in a way that (8) A statement that participation is does not merely provide lists of iso- voluntary, refusal to participate will lated facts, but rather facilitates the involve no penalty or loss of benefits to prospective subject’s or legally author- which the subject is otherwise entitled, ized representative’s understanding of and the subject may discontinue par- the reasons why one might or might ticipation at any time without penalty not want to participate. or loss of benefits to which the subject (6) No informed consent may include is otherwise entitled; and any exculpatory language through (9) One of the following statements which the subject or the legally au- about any research that involves the thorized representative is made to collection of identifiable private infor- waive or appear to waive any of the mation or identifiable biospecimens: subject’s legal rights, or releases or ap- (i) A statement that identifiers pears to release the investigator, the might be removed from the identifiable sponsor, the institution, or its agents private information or identifiable bio- from liability for negligence. specimens and that, after such removal, the information or biospeci- (b) Basic elements of informed consent. mens could be used for future research Except as provided in paragraph (d), studies or distributed to another inves- (e), or (f) of this section, in seeking in- tigator for future research studies formed consent the following informa- without additional informed consent tion shall be provided to each subject from the subject or the legally author- or the legally authorized representa- ized representative, if this might be a tive: possibility; or (1) A statement that the study in- (ii) A statement that the subject’s involves research, an explanation of the formation or biospecimens collected as purposes of the research and the ex- part of the research, even if identifiers pected duration of the subject’s partici- are removed, will not be used or dis- pation, a description of the procedures tributed for future research studies. to be followed, and identification of (c) Additional elements of informed con- any procedures that are experimental; sent. Except as provided in paragraph (2) A description of any reasonably (d), (e), or (f) of this section, one or foreseeable risks or discomforts to the more of the following elements of in- subject; formation, when appropriate, shall also (3) A description of any benefits to be provided to each subject or the le- the subject or to others that may rea- gally authorized representative: sonably be expected from the research; (1) A statement that the particular (4) A disclosure of appropriate alter- treatment or procedure may involve native procedures or courses of treat- risks to the subject (or to the embryo ment, if any, that might be advan- or fetus, if the subject is or may be- tageous to the subject; come pregnant) that are currently un- (5) A statement describing the ex- foreseeable; tent, if any, to which confidentiality of (2) Anticipated circumstances under records identifying the subject will be which the subject’s participation may maintained; be terminated by the investigator (6) For research involving more than without regard to the subject’s or the minimal risk, an explanation as to legally authorized representative’s whether any compensation and an ex- consent; planation as to whether any medical (3) Any additional costs to the sub- treatments are available if injury oc- ject that may result from participation curs and, if so, what they consist of, or in the research; where further information may be ob- (4) The consequences of a subject’s tained; decision to withdraw from the research

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and procedures for orderly termination (3) A description of the identifiable of participation by the subject; private information or identifiable bio- (5) A statement that significant new specimens that might be used in re- findings developed during the course of search, whether sharing of identifiable the research that may relate to the private information or identifiable bio- subject’s willingness to continue par- specimens might occur, and the types ticipation will be provided to the sub- of institutions or researchers that ject; might conduct research with the iden- (6) The approximate number of sub- tifiable private information or identifi- jects involved in the study; able biospecimens; (7) A statement that the subject’s (4) A description of the period of time biospecimens (even if identifiers are re- that the identifiable private informa- moved) may be used for commercial tion or identifiable biospecimens may profit and whether the subject will or be stored and maintained (which period will not share in this commercial prof- of time could be indefinite), and a de- it; (8) A statement regarding whether scription of the period of time that the clinically relevant research results, in- identifiable private information or cluding individual research results, identifiable biospecimens may be used will be disclosed to subjects, and if so, for research purposes (which period of under what conditions; and time could be indefinite); (9) For research involving biospeci- (5) Unless the subject or legally au- mens, whether the research will (if thorized representative will be pro- known) or might include whole genome vided details about specific research sequencing (i.e., sequencing of a human studies, a statement that they will not germline or somatic specimen with the be informed of the details of any spe- intent to generate the genome or cific research studies that might be exome sequence of that specimen). conducted using the subject’s identifi- (d) Elements of broad consent for the able private information or identifiable storage, maintenance, and secondary re- biospecimens, including the purposes of search use of identifiable private informa- the research, and that they might have tion or identifiable biospecimens. Broad chosen not to consent to some of those consent for the storage, maintenance, specific research studies; and secondary research use of identifi- (6) Unless it is known that clinically able private information or identifiable relevant research results, including in- biospecimens (collected for either re- dividual research results, will be dis- search studies other than the proposed closed to the subject in all cir- research or nonresearch purposes) is cumstances, a statement that such re- permitted as an alternative to the in- sults may not be disclosed to the sub- formed consent requirements in para- ject; and graphs (b) and (c) of this section. If the (7) An explanation of whom to con- subject or the legally authorized representative is asked to provide broad tact for answers to questions about the consent, the following shall be provided subject’s rights and about storage and to each subject or the subject’s legally use of the subject’s identifiable private authorized representative: information or identifiable biospeci- (1) The information required in para- mens, and whom to contact in the graphs (b)(2), (b)(3), (b)(5), and (b)(8) event of a research-related harm. and, when appropriate, (c)(7) and (9) of (e) Waiver or alteration of consent in this section; research involving public benefit and serv- (2) A general description of the types ice programs conducted by or subject to of research that may be conducted with the approval of state or local officials—(1) the identifiable private information or Waiver. An IRB may waive the require- identifiable biospecimens. This descrip- ment to obtain informed consent for tion must include sufficient informa- research under paragraphs (a) through tion such that a reasonable person (c) of this section, provided the IRB would expect that the broad consent satisfies the requirements of paragraph would permit the types of research con- (e)(3) of this section. If an individual ducted; was asked to provide broad consent for

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the storage, maintenance, and sec- requirements at paragraph (d) of this ondary research use of identifiable pri- section, and refused to consent, an IRB vate information or identifiable bio- cannot waive consent for the storage, specimens in accordance with the re- maintenance, or secondary research quirements at paragraph (d) of this sec- use of the identifiable private information, and refused to consent, an IRB tion or identifiable biospecimens. cannot waive consent for the storage, (2) Alteration. An IRB may approve a maintenance, or secondary research consent procedure that omits some, or use of the identifiable private informa- alters some or all, of the elements of tion or identifiable biospecimens. informed consent set forth in para- (2) Alteration. An IRB may approve a graphs (b) and (c) of this section pro- consent procedure that omits some, or vided the IRB satisfies the require- alters some or all, of the elements of informed consent set forth in para- ments of paragraph (f)(3) of this sec- graphs (b) and (c) of this section pro- tion. An IRB may not omit or alter any vided the IRB satisfies the require- of the requirements described in para- ments of paragraph (e)(3) of this sec- graph (a) of this section. If a broad con- tion. An IRB may not omit or alter any sent procedure is used, an IRB may not of the requirements described in para- omit or alter any of the elements re- graph (a) of this section. If a broad con- quired under paragraph (d) of this sec- sent procedure is used, an IRB may not tion. omit or alter any of the elements re- (3) Requirements for waiver and alter- quired under paragraph (d) of this sec- ation. In order for an IRB to waive or tion. alter consent as described in this sub- (3) Requirements for waiver and alter- section, the IRB must find and docu- ation. In order for an IRB to waive or ment that: alter consent as described in this sub- (i) The research involves no more section, the IRB must find and docu- than minimal risk to the subjects; ment that: (ii) The research could not prac- (i) The research or demonstration ticably be carried out without the re- project is to be conducted by or subject quested waiver or alteration; to the approval of state or local gov- (iii) If the research involves using ernment officials and is designed to study, evaluate, or otherwise examine: identifiable private information or (A) Public benefit or service pro- identifiable biospecimens, the research grams; could not practicably be carried out (B) Procedures for obtaining benefits without using such information or bio- or services under those programs; specimens in an identifiable format; (C) Possible changes in or alter- (iv) The waiver or alteration will not natives to those programs or proce- adversely affect the rights and welfare dures; or of the subjects; and (D) Possible changes in methods or (v) Whenever appropriate, the sub- levels of payment for benefits or serv- jects or legally authorized representa- ices under those programs; and tives will be provided with additional (ii) The research could not prac- pertinent information after participa- ticably be carried out without the tion. waiver or alteration. (g) Screening, recruiting, or determining (f) General waiver or alteration of con- eligibility. An IRB may approve a resent—(1) Waiver. An IRB may waive the search proposal in which an investi- requirement to obtain informed con- gator will obtain information or bio- sent for research under paragraphs (a) specimens for the purpose of screening, through (c) of this section, provided recruiting, or determining the eligi- the IRB satisfies the requirements of paragraph (f)(3) of this section. If an in- bility of prospective subjects without dividual was asked to provide broad the informed consent of the prospective consent for the storage, maintenance, subject or the subject’s legally author- and secondary research use of identifi- ized representative, if either of the fol- able private information or identifiable lowing conditions are met: biospecimens in accordance with the

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(1) The investigator will obtain infor- § 690.117 Documentation of informed mation through oral or written com- consent. munication with the prospective sub- (a) Except as provided in paragraph ject or legally authorized representa- (c) of this section, informed consent tive, or shall be documented by the use of a (2) The investigator will obtain iden- written informed consent form ap- tifiable private information or identifi- proved by the IRB and signed (includ- able biospecimens by accessing records ing in an electronic format) by the sub- or stored identifiable biospecimens. ject or the subject’s legally authorized (h) Posting of clinical trial consent representative. A written copy shall be form. (1) For each clinical trial con- given to the person signing the in- ducted or supported by a Federal de- formed consent form. partment or agency, one IRB-approved (b) Except as provided in paragraph (c) of this section, the informed con- informed consent form used to enroll sent form may be either of the fol- subjects must be posted by the awardee lowing: or the Federal department or agency (1) A written informed consent form component conducting the trial on a that meets the requirements of publicly available Federal Web site § 690.116. The investigator shall give ei- that will be established as a repository ther the subject or the subject’s legally for such informed consent forms. authorized representative adequate op- (2) If the Federal department or agen- portunity to read the informed consent cy supporting or conducting the clin- form before it is signed; alternatively, ical trial determines that certain infor- this form may be read to the subject or mation should not be made publicly the subject’s legally authorized rep- available on a Federal Web site (e.g. resentative. confidential commercial information), (2) A short form written informed such Federal department or agency consent form stating that the elements may permit or require redactions to of informed consent required by the information posted. § 690.116 have been presented orally to (3) The informed consent form must the subject or the subject’s legally authorized representative, and that the be posted on the Federal Web site after key information required by the clinical trial is closed to recruit- § 690.116(a)(5)(i) was presented first to ment, and no later than 60 days after the subject, before other information, the last study visit by any subject, as if any, was provided. The IRB shall ap- required by the protocol. prove a written summary of what is to (i) Preemption. The informed consent be said to the subject or the legally au- requirements in this policy are not in- thorized representative. When this tended to preempt any applicable Fed- method is used, there shall be a witness eral, state, or local laws (including to the oral presentation. Only the tribal laws passed by the official gov- short form itself is to be signed by the erning body of an American Indian or subject or the subject’s legally author- Alaska Native tribe) that require addi- ized representative. However, the wit- tional information to be disclosed in ness shall sign both the short form and order for informed consent to be le- a copy of the summary, and the person gally effective. actually obtaining consent shall sign a (j) Emergency medical care. Nothing in copy of the summary. A copy of the this policy is intended to limit the au- summary shall be given to the subject thority of a physician to provide emer- or the subject’s legally authorized rep- gency medical care, to the extent the resentative, in addition to a copy of physician is permitted to do so under the short form. applicable Federal, state, or local law (c)(1) An IRB may waive the requirement for the investigator to obtain a (including tribal law passed by the offi- signed informed consent form for some cial governing body of an American In- or all subjects if it finds any of the fol- dian or Alaska Native tribe). lowing: (Approved by the Office of Management and (i) That the only record linking the Budget under Control Number 0990–0260) subject and the research would be the

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informed consent form and the prin- by the IRB, as provided in this policy, cipal risk would be potential harm re- and certification submitted, by the in- sulting from a breach of confiden- stitution, to the Federal department or tiality. Each subject (or legally author- agency component supporting the re- ized representative) will be asked search. whether the subject wants documentation linking the subject with the re- § 690.119 Research undertaken with- search, and the subject’s wishes will out the intention of involving govern; human subjects. (ii) That the research presents no Except for research waived under more than minimal risk of harm to § 690.101(i) or exempted under § 690.104, subjects and involves no procedures for in the event research is undertaken which written consent is normally re- without the intention of involving quired outside of the research context; human subjects, but it is later pro- or posed to involve human subjects in the (iii) If the subjects or legally author- research, the research shall first be re- ized representatives are members of a viewed and approved by an IRB, as pro- distinct cultural group or community vided in this policy, a certification sub- in which signing forms is not the norm, mitted by the institution to the Fed- that the research presents no more eral department or agency component than minimal risk of harm to subjects supporting the research, and final ap- and provided there is an appropriate al- proval given to the proposed change by ternative mechanism for documenting the Federal department or agency com- that informed consent was obtained. ponent. (2) In cases in which the documentation requirement is waived, the IRB § 690.120 Evaluation and disposition of applications and proposals for re- may require the investigator to provide search to be conducted or sup- subjects or legally authorized rep- ported by a Federal department or resentatives with a written statement agency. regarding the research. (a) The department or agency head (Approved by the Office of Management and will evaluate all applications and pro- Budget under Control Number 0990–0260) posals involving human subjects submitted to the Federal department or § 690.118 Applications and proposals agency through such officers and em- lacking definite plans for involve- ployees of the Federal department or ment of human subjects. agency and such experts and consult- Certain types of applications for ants as the department or agency head grants, cooperative agreements, or con- determines to be appropriate. This tracts are submitted to Federal depart- evaluation will take into consideration ments or agencies with the knowledge the risks to the subjects, the adequacy that subjects may be involved within of protection against these risks, the the period of support, but definite potential benefits of the research to plans would not normally be set forth the subjects and others, and the impor- in the application or proposal. These tance of the knowledge gained or to be include activities such as institutional gained. type grants when selection of specific (b) On the basis of this evaluation, projects is the institution’s responsi- the department or agency head may bility; research training grants in approve or disapprove the application which the activities involving subjects or proposal, or enter into negotiations remain to be selected; and projects in to develop an approvable one. which human subjects’ involvement will depend upon completion of instru- § 690.121 [Reserved] ments, prior animal studies, or purifi- cation of compounds. Except for re- § 690.122 Use of Federal funds. search waived under § 690.101(i) or ex- Federal funds administered by a Fed- empted under § 690.104, no human sub- eral department or agency may not be jects may be involved in any project expended for research involving human supported by these awards until the subjects unless the requirements of project has been reviewed and approved this policy have been satisfied.

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§ 690.123 Early termination of re- would direct or has/have directed the search support: Evaluation of appli- scientific and technical aspects of an cations and proposals. activity has/have, in the judgment of (a) The department or agency head the department or agency head, mate- may require that Federal department rially failed to discharge responsibility or agency support for any project be for the protection of the rights and terminated or suspended in the manner welfare of human subjects (whether or prescribed in applicable program re- not the research was subject to federal quirements, when the department or regulation). agency head finds an institution has § 690.124 Conditions. materially failed to comply with the terms of this policy. With respect to any research project (b) In making decisions about sup- or any class of research projects the de- porting or approving applications or partment or agency head of either the proposals covered by this policy the de- conducting or the supporting Federal partment or agency head may take department or agency may impose ad- into account, in addition to all other ditional conditions prior to or at the eligibility requirements and program time of approval when in the judgment criteria, factors such as whether the of the department or agency head addi- applicant has been subject to a termi- tional conditions are necessary for the nation or suspension under paragraph protection of human subjects. (a) of this section and whether the applicant or the person or persons who PARTS 691–699 [RESERVED]

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Part Page 700 [Reserved] 701 Organization and functions of the Commission ...... 245 702 Rules on hearings, reports, and meetings of the Commission ...... 248 703 Operations and functions of State Advisory Com- mittees ...... 257 704 Information disclosure and communications ...... 260 705 Materials available pursuant to 5 U.S.C. 552a ...... 267 706 Employee responsibilities and conduct ...... 272 707 Enforcement of nondiscrimination on the basis of disability in programs or activities conducted by U.S. Commission on Civil Rights ...... 273 708 Collection by salary offset from indebted current and former employees ...... 279 709–799 [Reserved]

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not more than four of whom may be of the Chairperson may cancel such meet- the same political party. The President ing. shall appoint four members, the Presi- dent pro tempore of the Senate shall § 701.12 Staff Director. appoint two, and the Speaker of the A Staff Director for the Commission House of Representatives shall appoint is appointed by the President with the two. concurrence of a majority of the Com- (b) The Chairperson and Vice Chair- missioners. The Staff Director is the person of the Commission are des- administrative head of the agency. ignated by the President with the concurrence of a majority of the Commis- § 701.13 Staff organization and func- sioners. The Vice Chairperson acts as tions. Chairperson in the absence or dis- The Commission staff organization ability of the Chairperson or in the and function are as follows: event of a vacancy in that office. (a) Office of the Staff Director. Under (c) No vacancy in the Commission af- the direction of the Staff Director, this fects its powers and any vacancy is Office defines and disseminates to staff filled in the same manner and is sub- the policies established by the Com- ject to the same limitations with respect to party affiliations as previous missioners; develops program plans for appointments. presentation to the Commissioners; evaluates program results; supervises (d) Five members of the Commission and coordinates the work of other constitute a quorum. agency offices; manages the adminis- § 701.11 Commission meetings—duties trative affairs of the agency; appoints of the Chairperson. an Equal Employment Opportunity Of- ficer for the agency’s in-house Equal (a) At a meeting of the Commission Employment Opportunity Program; in each calendar year, the Commission and conducts agency liaison with the shall, by vote of the majority, adopt a Executive Office of the President, the schedule of Commission meetings for the following calendar year. Congress, and other Federal agencies. (b) In addition to the regularly sched- (b) Office of the Deputy Staff Director. uled meetings, it is the responsibility Under the direction of the Deputy Staff of the Chairperson to call the Commis- Director, this Office is responsible for sion to meet in a special open meeting the day-to-day administration of the at such time and place as he or she agency; evaluation of quantity and shall deem appropriate; provided how- quality of program efforts; personnel ever, that upon the motion of a mem- administration; and the supervision of ber, and a favorable vote by a majority Office Directors who do not report di- of Commission members, a special rectly to the Staff Director. meeting of the Commission may be (c) Office of the General Counsel. held in the absence of a call by the Under the direction of the General Chairperson. Counsel, who reports directly to the (c) The Chairperson, after consulting Staff Director, this office serves as with the Staff Director, shall establish legal counsel to the Commissioners and the agenda for each meeting. The agen- to the agency; legal aspects of agency- da at the meeting of the Commission related personnel actions, employment may be modified by the addition or de- issues, and labor relations issues; plans letion of specific items upon the mo- and conducts hearings and consultation of a Commissioner and a favorable tions for the Commission; conducts vote by a majority of the members. legal studies; prepares reports of legal (d) In the event that after consulting studies and hearings; drafts or reviews with the members of the Commission proposals for legislative and executive and consideration of the views of the action; receives and responds to re- members the Chairperson determines quests for material under the Freedom that there are insufficient substantive of Information Act, Federal Advisory items on a proposed meeting agenda to Committee Act, Administrative Proce- warrant holding a scheduled meeting, dures Act, and the Sunshine Act; serves

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as the agency’s ethics office and re- jurisdiction; and receiving complaints sponds to requests for advice and guid- alleging denial of civil rights because ance on questions of ethical conduct, of color, race, religion, sex, age, dis- conflicts of interest, and reporting fi- ability, or national origin and referring nancial interest; and reviews all agen- these complaints to the appropriate cy publications and congressional tes- government agency for investigation timony for legal sufficiency. and resolution. (d) Office of Management. This Office (f) Congressional Affairs Unit. This is responsible for all administrative, Unit is responsible for liaison with management, and facilitative services committees and members of Congress necessary for the operation of the or their staffs, monitoring legislative agency, including financial manage- activities relating to civil rights, and ment, personnel, publications, and the preparing testimony for presentation National Clearinghouse Library. This before committees of Congress when office consists of three divisions re- such testimony has been requested by a porting directly to the Staff Director. committee. (1) Administrative Services and Clear- (g) Public Affairs Unit. Under the di- inghouse Division. Under the direction rection of the Chief of Public Affairs, of the Chief of Administrative Serv- this Unit is responsible for planning ices, this Division is responsible for the and managing briefings at which the identification and acquisition of Com- Commission receives information remission hearing facilities; oversight of garding civil rights issues; developing the Rankin Library and the distribu- plans for community outreach activi- tion of publications; procurement; in- ties; managing the Commission’s pub- formation and resources management; lic service announcements; media re- security; telecommunications; trans- leases and press conferences; preparing portation; space management; repair for publication periodic updates of and maintenance services; supplies; Commission activities and a Commis- central mailing lists; and assorted sion civil rights magazine; and keeping other administrative duties and func- the Commission and Commission staff tions; apprised of civil rights conferences and (2) Budget and Finance Division. Under activities. the direction of the Chief of Budget and (h) Regional Programs Coordination Finance, this Division is responsible Unit. Under the direction of the Chief for budget preparation, formulation, of the Regional Programs Coordination justification, and execution; financial Unit, this Unit is responsible for di- management; and accounting, includ- recting and coordinating the programs ing travel for Commissioners and staff; and work of the regional offices and 51 and State Advisory Committees to the (3) Human Resources Division. Under Commission and maintaining liaison the direction of the Director of Human between the regional offices and the Resources, this Division is responsible various headquarters’ offices of the for human resources development, in- Commission. cluding career staffing, classification, (i) Regional Offices. The Commission benefits, time and attendance, train- has six regional offices, each headed by ing, and compensation. a Director, that coordinate studies and (e) Office of Federal Civil Rights Eval- fact-finding activities on a variety of uation. Under the direction of an As- civil rights issues addressed by the sistant Staff Director, this Office is re- State Advisory Committees (SAC) in sponsible for monitoring, evaluating their regions and approved by the Staff and reporting on the civil rights en- Director; report to the Commission on forcement effort of the Federal Govern- the results of SAC activities; submit ment; developing concepts for pro- SAC reports to the Commission for ac- grams, projects, and policies directed tion; and assist with follow-up on rec- toward the achievement of Commission ommendations included in SAC or goals; preparing documents that ar- Commission reports. The name of the ticulate the Commission’s views and Director, the address, and telephone concerns regarding Federal civil rights and facsimile numbers for each re- to Federal agencies having appropriate gional office are published annually in

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the ‘‘United States Government Man- 702.17 Communications with respect to ual’’. The regions and the SACs that Commission proceedings. they serve are: 702.18 Commission reports. Region I: Eastern Regional Office, Subpart B—Meetings Washington, DC 702.50 Purpose and scope. Connecticut, Delaware, District of Colum- 702.51 Definitions. bia, Maine, Maryland, Massachusetts, New 702.52 Open meeting requirements. Hampshire, New Jersey, New York, Pennsyl- 702.53 Closed meetings. vania, Rhode Island, and Vermont, Virginia, 702.54 Closed meeting procedures. West Virginia. 702.55 Public announcement of meetings. 702.56 Records. Region II: Southern Regional Office, 702.57 Administrative review. Atlanta, Georgia AUTHORITY: 42 U.S.C. 1975, 1975a, 1975b. Florida, Georgia, Kentucky, North Caro- lina, South Carolina, and Tennessee. SOURCE: 67 FR 70482, Nov. 22, 2002, unless otherwise noted. Region III: Midwestern Regional Office, Chicago, Illinois Subpart A—Hearings and Reports Illinois, Indiana, Michigan, Minnesota, Ohio, and Wisconsin. § 702.1 Definitions. Region IV: Central Regional Office, Kansas For purposes of this part, the fol- City, Kansas lowing definitions shall apply unless Alabama, Arkansas, Iowa, Kansas, Lou- otherwise provided: isiana, Mississippi, Missouri, Nebraska, and (a) The Act means the United States Oklahoma. Commission on Civil Rights Act of 1983, 97 Stat. 1301, as amended by the Civil Region V: Rocky Mountain Regional Office, Rights Commission Amendments Act Denver, Colorado of 1994, 108 Stat. 4339, codified in 42 Colorado, Montana, New Mexico, North Da- U.S.C. 1975 through 1975d. kota, South Dakota, Utah, and Wyoming. (b) The Commission means the United Region VI: Western Regional Office, Los States Commission on Civil Rights or, Angeles, California as provided in § 702.2, to any authorized subcommittee thereof. Alaska, Arizona, California, Hawaii, Idaho, Nevada, Oregon, Texas, and Washington. (c) The Chairperson means the Chair- person of the Commission or authorized subcommittee thereof or to any PART 702—RULES ON HEARINGS, acting Chairperson of the Commission REPORTS, AND MEETINGS OF THE or of such subcommittee. COMMISSION (d) Proceeding means collectively to any public session of the Commission Subpart A—Hearings and Reports and executive session held in connec- Sec. tion therewith. 702.1 Definitions. (e) Hearing means collectively to a 702.2 Authorization for hearing. public session of the Commission and 702.3 Notice of hearing. any executive session held in connec- 702.4 Subpoenas. tion therewith, including the attend- 702.5 Conduct of proceedings. ance of witnesses or the production of 702.6 Executive session. written or other matters for which sub- 702.7 Counsel. 702.8 Evidence at Commission proceedings. poenas have been issued. 702.9 Cross-examination at public session. (f) Witnesses are persons subpoenaed 702.10 Voluntary witnesses at public session to attend and testify or produce writ- of a hearing. ten or other matter. 702.11 Special executive session. (g) The rules in this part means the 702.12 Contempt of the Commission. Rules on Hearings of the Commission. 702.13 Intimidation of witnesses. (h) Report means statutory reports or 702.14 Transcript of Commission proceedings. portions thereof issued pursuant to 42 702.15 Witness fees. U.S.C. 1975a(c). 702.16 Attendance of news media at public (i) Verified answer means an answer sessions. the truth of which is substantiated by

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oath or affirmation attested to by a no- quests to subpoena additional wit- tary public or other person who has nesses except as otherwise provided in legal authority to administer oaths. § 702.6(e). (e) Requests for subpoenas shall be in § 702.2 Authorization for hearing. writing, supported by a showing of the Under 42 U.S.C. 1975a(e)(1) the Com- general relevance and materiality of mission or, on the authorization of the the evidence sought. Witness fees and Commission, any subcommittee of two mileage shall be computed and paid or more members, at least one of whom pursuant to § 702.15. shall be of each major political party, (f) Subpoenas shall be issued at a rea- may, for the purpose of carrying out sonably sufficient time in advance of the provisions of the Act, hold such their scheduled return, in order to give hearings and act at such times and lo- subpoenaed persons an opportunity to cations as the Commission or such au- prepare for their appearance and to em- thorized subcommittee may deem ad- ploy counsel, should they so desire. visable. The holding of hearings by the (g) No subpoenaed document or infor- Commission or the appointment of a mation contained therein shall be subcommittee to hold hearings pursu- made public unless it is introduced into ant to this section must be approved by and received as part of the official a majority of the Commission or by a record of the hearing. majority of the members present at a meeting at which at least a quorum of § 702.5 Conduct of proceedings. five members is present. (a) The Chairperson shall announce in an opening statement the subject of § 702.3 Notice of hearing. the proceedings. At least 30 days prior to the com- (b) Following the opening statement, mencement of any hearing, the Com- the Commission shall first convene in mission shall publish in the FEDERAL executive session if one is required pur- REGISTER notice of the date on which suant to the provisions of § 702.6. such hearing is to commence, the loca- (c) The Chairperson, subject to the tion at which it is to be held, and the approval of the Commission, shall: subject of the hearing. (1) Set the order of presentation of evidence and appearance of witnesses; § 702.4 Subpoenas. (2) Rule on objections and motions; (a) Subpoenas for the attendance and (3) Administer oaths and affirma- testimony of witnesses or the productions; tion of written or other matter may be (4) Make all rulings with respect to issued by the Commission over the sig- the introduction into or exclusion from nature of the Chairperson and may be the record of documentary or other evi- served by any person designated by the dence; Chairperson. (5) Regulate the course and decorum (b) A witness compelled to appear be- of the proceedings and the conduct of fore the Commission or required to the parties and their counsel to ensure produce written or other matter shall that the proceedings are conducted in a be served with a copy of the rules in fair and impartial manner. this part at the time of service of the (d) Proceedings shall be conducted subpoena. with reasonable dispatch and due re- (c) The Commission may issue sub- gard shall be had for the convenience poenas for the attendance and testi- and necessity of witnesses. mony of witnesses or for the produc- (e) The questioning of witnesses shall tion of written or other matter. Such a be conducted only by Members of the subpoena may not require the presence Commission, by authorized Commis- of a witness more than 100 miles out- sion staff personnel, or by counsel to side the location wherein the witness is the extent provided in § 702.7. found or resides or is domiciled or (f) In addition to persons served with transacts business or has appointed an a copy of the rules in this part pursu- agent for receipt of service of process. ant to §§ 702.4 and 702.6, a copy of the (d) The Chairperson shall receive and rules in this part will be made avail- the Commission shall dispose of re- able to all witnesses.

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(g) The Chairperson may punish (d) In the event such persons fail to breaches of order and decorum by cen- appear at executive session at the time sure and exclusion from the pro- and location scheduled under para- ceedings. graph (b) or (c) of this section, they shall not be entitled to another oppor- § 702.6 Executive session. tunity to appear at executive session, (a) If the Commission determines except as provided in § 702.11. that evidence or testimony at any (e) If such persons intend to submit hearing may tend to defame, degrade, sworn statements of themselves or oth- or incriminate any person, it shall re- ers, or if they intend that witnesses ap- ceive such evidence or testimony or pear in their behalf at executive ses- summary of such evidence or testi- sion, they shall, no later than 48 hours mony in executive session. prior to the time set under paragraph (b) or (c) of this section, submit to the (b) The Commission shall afford any Commission all such statements and a persons defamed, degraded, or incrimi- list of all witnesses. The Commission nated by such evidence or testimony an will inform such persons whether the opportunity to appear and be heard in number of witnesses requested is rea- executive session, with a reasonable sonable within the meaning of para- number of additional witnesses re- graph (b) of this section. In addition, quested by them, before deciding to use the Commission will receive and dis- such evidence or testimony. pose of requests from such persons to (1) Such person shall be served with subpoena other witnesses. Requests for notice, in writing, at least 10 days prior subpoenas shall be made sufficiently in to the date, time, and location for the advance of the scheduled executive ses- appearance of witnesses at executive sion to afford subpoenaed persons rea- session or where service is by mail at sonable notice of their obligation to least 14 days prior to such date. This appear at that session. Subpoenas re- notice shall be accompanied by a copy turnable at executive session shall be of the rules in this part and by a brief governed by the provisions of § 702.4. summary of the information that the (f) Persons for whom an executive Commission has determined may tend session has been scheduled, and persons to defame, degrade, or incriminate compelled to appear at such session, such person; may be represented by counsel at such (2) The notice, summary, and rules in session to the extent provided by this part shall be served by certified § 702.7. mail or by leaving a copy thereof at (g) Attendance at executive session the last known residence or business shall be limited to Commissioners; au- address of such person; and thorized Commission staff personnel; (3) The date of service, for purposes witnesses, and their counsel at the of this section, shall be the day when time scheduled for their appearance; the material is deposited in the mail or and such other persons whose presence is delivered in person, whichever is ap- is requested or consented to by the plicable. When service is made by mail, Commission. the return post office receipt shall be (h) In the event the Commission de- proof of service; in all other cases, the termines to release or to use evidence acknowledgment of the party served or or testimony that it has determined the verified return of the one making may tend to defame, degrade, or in- service shall be proof of the same. criminate any persons in such a man- (c) If a person receiving notice under ner as to reveal publicly their identity, this section notifies the Commission such evidence or testimony, prior to within five days of service of such no- such public release or use, will be pre- tice or where service is by mail within sented at a public session, and the eight days of service of such notice Commission will afford them an oppor- that the scheduled appearance con- tunity to appear as voluntary wit- stitutes a hardship, the Commission nesses or to file a sworn statement in may, in its discretion, set a new date their own behalf and to submit brief or time for such person’s appearance at and pertinent sworn statements of oth- the executive session. ers.

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§ 702.7 Counsel. may refuse to include in the record of (a) Persons compelled to appear in a proceeding or may strike from the person before the Commission and any record any evidence it considers to be witness appearing at a public session of cumulative, immaterial, or not perti- the Commission will be accorded the nent. right to be accompanied and advised by counsel, who will have the right to sub- § 702.9 Cross-examination at public session. ject their clients to reasonable examination, make objections on the record, If the Commission determines that and briefly argue the basis for such ob- oral testimony of a witness at a public jections. session tends to defame, degrade, or in- (b) For the purpose of this section, criminate any person, such person, or counsel shall mean an attorney at law through counsel, shall be permitted to admitted to practice before the Su- submit questions to the Commission in preme Court of the United States or writing, which, in the discretion of the the highest court of any State or Terri- Commission, may be put to such wit- tory of the United States. ness by the Chairperson or by author- (c) Failure of any persons to obtain ized Commission staff personnel. counsel shall not excuse them from attendance in response to a subpoena, § 702.10 Voluntary witnesses at public nor shall any persons be excused in the session of a hearing. event their counsel is excluded from A person who has not been subpoe- the proceeding pursuant to § 702.6(g). In naed and who has not been afforded an the latter case, however, such persons opportunity to appear pursuant to shall be afforded a reasonable time to § 702.6 may be permitted, in the discre- obtain other counsel, said time to be tion of the Commission, to make an determined by the Commission. oral or written statement at a public session of a hearing. Such person may § 702.8 Evidence at Commission proceedings. be questioned to the same extent and in the same manner as other witnesses (a) The rules of evidence prevailing before the Commission. in courts of law or equity shall not control proceedings of the Commission. § 702.11 Special executive session. (b) Where a witness testifying at a public session of a hearing or a session If, during the course of a public ses- for return of subpoenaed documents of- sion, evidence is submitted that was fers the sworn statements of other per- not previously presented at executive sons, such statements, in the discre- session and that the Commission deter- tion of the Commission, may be in- mines may defame, degrade, or incrim- cluded in the record, provided they are inate any person, the provisions of received by the Commission 24 hours in § 702.6 shall apply and such extensions, advance of the witness’ appearance. recesses or continuances of the public (c) The prepared statement of a wit- session shall be ordered by the Com- ness testifying at a public session of a mission, as it deems necessary. The hearing, in the discretion of the Com- time and notice requirements of § 702.6 mission, may be placed into the record, may be modified by the Commission provided that such statement is re- provided reasonable notice of a sched- ceived by the Commission 24 hours in uled executive session is afforded such advance of the witness’ appearance. person; the Commission may, in its dis- (d) In the discretion of the Commis- cretion, strike such evidence from the sion, evidence may be included in the record, in which case the provisions of record after the close of a public ses- § 702.6 shall not apply. sion of a hearing provided the Commis- sion determines that such evidence § 702.12 Contempt of the Commission. does not tend to defame, degrade, or in- Proceedings and process of the Com- criminate any person. mission are governed by 42 U.S.C. (e) The Commission will determine 1975a(e)(2), which provides that in case the pertinence of testimony and evi- of contumacy or refusal to obey a sub- dence adduced at its proceedings and poena, the Attorney General may in a

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Federal court of appropriate jurisdic- (c) Persons who have presented testi- tion obtain an appropriate order to en- mony at a proceeding may ask within force the subpoena. 60 days after the close of the proceeding to correct errors in the tran- § 702.13 Intimidation of witnesses. script of their testimony. Such re- Witnesses at Commission proceedings quests shall be granted only to make are protected by the provisions of 18 the transcript conform to their testi- U.S.C. 1505, which provide that who- mony as presented at the proceeding. ever, with intent to avoid, evade, pre- § 702.15 Witness fees. vent, or obstruct compliance, in whole or in part, with any civil investigative A witness attending any session of demand duly and properly made under the Commission shall be paid the same the Antitrust Civil Process Act, will- fees and mileage that are paid wit- fully withholds, misrepresents, re- nesses in the courts of the United moves from any place, conceals, covers States. Mileage payments must be ten- up, destroys, mutilates, alters, or by dered at the witness’ request upon other means falsifies any documentary service of a subpoena issued on behalf material, answers to written interrog- of the Commission or any sub- atories, or oral testimony, which is the committee thereof. subject of such demand; or attempts to § 702.16 Attendance of news media at do so or solicits another to do so; or public sessions. whoever corruptly, or by threats or Reasonable access for coverage of force, or by any threatening letter or public sessions shall be provided to the communication influences, obstructs, various communications media, includ- or impedes or endeavors to influence, ing newspapers, magazines, radio, obstruct, or impede the due and proper newsreels, and television, subject to administration of the law under which the physical limitations of the room in any pending proceeding is being had be- which the session is held and consider- fore any department or agency of the ation of the physical comfort of Com- United States, or the due and proper mission members, staff, and witnesses. exercise of the power of inquiry under However, no witnesses shall be tele- which any inquiry or investigation is vised, filmed, or photographed during being had by either House, or any com- the session nor shall the testimony of mittee of either House or any joint any witness be broadcast or recorded committee of the Congress shall be for broadcasting if the witness objects. fined under this title or imprisoned not more than five years, or both. § 702.17 Communications with respect to Commission proceedings. § 702.14 Transcript of Commission pro- During any proceeding held outside ceedings. Washington, DC, communications to (a) An accurate transcript shall be the Commission with respect to such made of the testimony of all witnesses proceeding must be made to the Chair- at all proceedings of the Commission. person or authorized Commission staff Transcripts shall be recorded solely by personnel in attendance. All requests the official reporter or by any other for subpoenas returnable at a hearing, person or means designated by the requests for appearance of witnesses at Commission. a hearing, and statements or other doc- (b) Every person who submits data or uments for inclusion in the record of a evidence shall be entitled to retain or, proceeding, required to be submitted in on payment of lawfully prescribed advance, must be submitted to the costs, procure a copy or transcript Chairperson, or such authorized person thereof, except that witnesses in a as the Chairperson may appoint, at an hearing held in executive session may office located in the community where be limited, for good cause, to inspec- such hearing or proceeding is scheduled tion of the official transcript of their to be held. The location of such office testimony. Transcript copies of public will be set forth in all subpoenas issued sessions may be obtained by the public under the rules in this part and in all upon the payment of the cost thereof. notices prepared pursuant to § 706.2.

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§ 702.18 Commission reports. however, the Commission may except (a) If a Commission report tends to from the answer such matter as it de- defame, degrade, or incriminate any termines to be scandalous, prejudicial, person, the report or relevant portions or unnecessary. thereof shall be delivered to such person at least 30 days before the report is Subpart B—Meetings made public to allow such person to make a timely verified answer to the § 702.50 Purpose and scope. report. The Commission shall afford This subpart contains the regulations such person an opportunity to file with of the United States Commission on the Commission a verified answer to Civil Rights implementing sections (a)– the report or relevant portions thereof (f) of 5 U.S.C. 552b, the ‘‘Government in not later than 20 days after service as the Sunshine Act.’’ They are adopted provided by the regulations in this to further the principle that the public part. is entitled to the fullest practicable in- (1) Such person shall be served with a formation regarding the decision-mak- copy of the report or relevant portions ing processes of the Commission. They thereof, with an indication of the sec- open meetings of the Commission to tion(s) that the Commission has deter- public observation except where the mined tend to defame, degrade, or in- rights of individuals are involved or criminate such person, a copy of the the ability of the Commission to carry Act, and a copy of the regulations in out its responsibilities requires con- this part. fidentiality. (2) The report or relevant portions thereof, the Act, and regulations in § 702.51 Definitions. this part shall be served by certified (a) Commission means the United mail, return receipt requested, or by States Commission on Civil Rights and leaving a copy thereof at the last any subcommittee of the Commission known residence or business address or authorized under the United States the agent of such person. Commission on Civil Rights Act of 1983, (3) The date of service for the pur- 97 Stat. 1301, as amended by the Civil poses of this section shall be the day Rights Commission Amendments Act the material is delivered either by the of 1994, 108 Stat. 4339. The statutes are post office or otherwise, to such person codified in 42 U.S.C. 1975 through 1975d. or the agent of such person or at the (b) Commissioner means a member of last known residence or business ad- the U.S. Commission on Civil Rights dress of such person. The acknowledge- appointed by the President, the Presi- ment of the party served or the verified dent pro tempore of the Senate, or the return of the one making service shall Speaker of the House of Representa- be proof of service except that when tives, as provided in 42 U.S.C. 1975. service is made by mail, the return (c) Meeting means the deliberations post office receipt shall also constitute of at least the number of Commis- proof of same. sioners required to take action on be- (b) If a person receiving a Commis- half of the Commission where such de- sion report or relevant portions thereof liberations determine or result in the under this part requests an extension joint conduct or disposition of official of time from the Commission within Commission business. seven days of service of such report, (1) The number of Commissioners re- the Commission may, upon a showing quired to take action on behalf of the of good cause, grant the person addi- Commission is four, except that such tional time within which to file a number is two when the Commissioners verified answer. are a subcommittee of the Commission (c) A verified answer shall plainly authorized under 42 U.S.C. 1975a(e)(1). and concisely state the facts and law (2) Deliberations among Commis- constituting the person’s reply or de- sioners regarding the setting of the fense to the charges or allegations con- time, location, or subject matter of a tained in the report. meeting, whether the meeting is open (d) Such verified answer shall be pub- or closed, whether to withhold infor- lished as an appendix to the report; mation discussed at a closed meeting,

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and any other deliberations required or (i) Specifically authorized under cri- permitted by 5 U.S.C. 552b (d) and (e) teria established by an Executive Order and § 702.54 and § 702.55 of this subpart, to be kept secret in the interests of na- are not meetings for the purposes of tional defense or foreign policy and this subpart. (ii) In fact properly classified pursu- (3) The consideration by Commis- ant to such Executive Order; sioners of Commission business that is (2) Disclose information relating not discussed through conference calls solely to the internal personnel rules or a series of two party calls by the and practices of the Commission; number of Commissioners required to (3) Disclose matters specifically ex- take action on behalf of the Commis- empted from disclosure by statute sion is not a meeting for the purposes (other than 5 U.S.C. 552b), provided of this subpart. that such statute: (d) Public announcement or publicly announce means the use of reasonable (i) Requires that the matters be with- methods, such as the posting on the held from the public in such a manner Commission’s website or public notice as to leave no discretion on the issue, bulletin boards and the issuing of press or releases, to communicate information (ii) Establishes particular criteria for to the public regarding Commission withholding or refers to particular meetings. types of matters to be withheld; (e) Staff Director means the Staff Di- (4) Disclose trade secrets and com- rector of the Commission. mercial or financial information obtained from a person and is privileged § 702.52 Open meeting requirements. or confidential; (a) Every portion of every Commis- (5) Involve accusing any person of a sion meeting shall be open to public ob- crime or formally censuring any per- servation, except as provided in § 702.53 son; of this subpart. Commissioners shall (6) Disclose information of a personal not jointly conduct or dispose of agen- nature where disclosure would con- cy business other than in accordance stitute a clearly unwarranted invasion with this subpart. of personal privacy; (b) This subpart gives the public the (7) Disclose investigatory records right to attend and observe Commis- compiled for law enforcement purposes, sion open meetings; it confers no right or information that if written would be to participate in any way in such meet- contained in such records, but only to ings. the extent that the production of such (c) The Staff Director shall be re- records or information would: sponsible for making physical arrange- (i) Interfere with enforcement pro- ments for Commission open meetings ceedings, that provide ample space, sufficient (ii) Deprive a person of a right to a visibility, and adequate acoustics for public observation. fair trial or an impartial adjudication, (d) The presiding Commissioner at an (iii) Constitute an unwarranted inva- open meeting may exclude persons sion of personal privacy, from a meeting and shall take all steps (iv) Disclose the identity of a con- necessary to preserve order and deco- fidential source and, in the case of a rum. record received by the Commission from a criminal law enforcement au- § 702.53 Closed meetings. thority in the course of a criminal in- (a) The Commission may close a por- vestigation or by an agency conducting tion or portions of a meeting and with- a lawful national security intelligence hold information pertaining to such investigation, confidential information meeting when it determines that the furnished only by the confidential public interest does not require other- source, wise and when such portion or portions (v) Disclose investigative techniques of a meeting or the disclosure of such and procedures, or information is likely to: (vi) Endanger the life or physical (1) Disclose matters that are: safety of law enforcement personnel;

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(8) Disclose information received by spect to any information concerning the Commission and contained in or re- such series of meetings, so long as: lated to examination, operating, or (i) Each meeting in such series in- condition reports prepared by, on be- volves the same particular matters, half of, or for the use of an agency re- and sponsible for the regulation or super- (ii) Is scheduled to be held no more vision of financial institutions; than thirty (30) days after the initial (9) Disclose information the pre- meeting in such series. mature disclosure of that would: (c) The Commission will vote on the (i) In the case of information re- question of closing a meeting or por- ceived by the Commission from an tion thereof and withholding informa- agency that regulates currencies, secu- tion under paragraph (b) of this section rities, commodities, or financial insti- if one Commissioner calls for such a tutions, be likely to: vote. The vote of each Commissioner (A) Lead to significant financial participating in a vote to close a meet- speculation in currencies, securities, or ing shall be recorded and no proxies commodities, or shall be allowed. (B) Significantly endanger the sta- (1) If such vote is against closing a bility of any financial institution; or meeting and withholding information, (ii) Be likely to significantly frus- the Staff Director, within one working trate implementation of a proposed ac- day of such vote, shall make publicly tion, except that this paragraph shall available by putting in a place easily not apply in any instance where the accessible to the public a written copy Commission has already disclosed to of such vote reflecting the vote of each the public the content or nature of its Commissioner. proposed action or where the Commis- (2) If such vote is for closing a meet- sion is required by law to make such ing and withholding information, the disclosure on its own initiative prior to Staff Director, within one working day taking final agency action on such proof such vote, shall make publicly avail- posal; or able by putting in a place easily acces- (10) Specifically concern the Commis- sible to the public a written copy of sion’s issuance of a subpoena or the such vote reflecting the vote of each Commission’s participation in a civil Commissioner, and: action or proceeding, an action in a (i) A full written explanation of the foreign court or international tribunal, decision to close the meeting or por- or an arbitration. tions thereof (such explanation will be (b) [Reserved] as detailed as possible without reveal- ing the exempt information); § 702.54 Closed meeting procedures. (ii) A list of all persons other than (a) A meeting or portion thereof will staff members expected to attend the be closed, and information pertaining meeting and their affiliation (the iden- to a closed meeting will be withheld, tity of persons expected to attend such only after four Commissioners when no meeting will be withheld only if reveal- Commissioner’s position is vacant, ing their identity would reveal the ex- three Commissioners when there is a empt information that is the subject of vacancy, or two Commissioners on a the closed meeting). subcommittee authorized under 42 (d) Prior to any vote to close a meet- U.S.C. 1975a(e)(1), vote to take such ac- ing or portion thereof under paragraph tion. (c) of this section, the Commissioners (b)(1) A separate vote shall be taken shall obtain from the General Counsel with respect to each meeting, a portion an opinion as to whether the closing of or portions of which are proposed to be a meeting or portions thereof is in ac- closed to the public under § 702.53, and cordance with paragraphs (a)(1) with respect to any information to be through (10) of § 702.53. withheld under § 702.53. (1) For every meeting closed in ac- (2) A single vote may be taken with cordance with paragraphs (a)(1) respect to a series of meetings, a por- through (10) of § 702.53, the General tion or portions of which are proposed Counsel shall publicly certify in writ- to be closed to the public, or with re- ing that, in his or her opinion, the

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meeting may be closed to the public specific business to be discussed at the and shall cite each relevant exemptive meeting. provision. (b) Notice. The Staff Director, at least (2) A copy of certification by the eight calendar days before a meeting, General Counsel together with a state- shall make public announcement of: ment from the presiding officer of the (1) The time of the meeting; closed meeting setting forth the time (2) Its location; and location of the meeting and the (3) Its subject matter; persons present, shall be retained by (4) Whether it is open or closed to the the Commission. public; and (e) For all meetings closed to the (5) The name and phone number of a public, the Commission shall maintain Commission staff member who will re- a complete verbatim transcript or elec- spond to requests for information tronic recording adequate to record about the meeting. fully the proceedings of each meeting (c) Changes. (1) The time of day or lo- or portion of a meeting, which sets cation of a meeting may be changed forth the time and location of the following the public announcement re- meeting and the persons present. In the quired by paragraph (b) of this section, case of a meeting or a portion of a if the Staff Director publicly an- meeting closed to the public pursuant nounces such change at the earliest to paragraphs (a)(8), (9)(i)(A), or (10) of practicable time subsequent to the de- § 702.53, the Commission may retain a cision to change the time of day or lo- set of minutes and such minutes shall cation of the meeting. fully and clearly describe all matters (2) The date of a meeting may be discussed and provide a full and accu- changed following the public announce- rate summary of any actions taken, ment required by paragraph (b) of this and the reasons therefor, including a section, or a meeting may be scheduled description of each of the views ex- less than eight calendar days in ad- pressed on any item and the record of vance, if: any roll call vote (reflecting the vote (i) Four Commissioners when no of each member on the question). All Commissioner’s position is vacant, documents considered in connection three Commissioners when there is with any action shall be identified in such a vacancy, or two Commissioners such minutes. on a subcommittee authorized under 42 (f) Any person whose interests may U.S.C. 1975a(d), determine by recorded be directly affected by a portion of a vote that Commission business re- meeting may request that such portion quires such a meeting at an earlier be closed to the public under § 702.53 or date; and that it be open to the public if the (ii) The Staff Director, at the earliest Commission has voted to close the practicable time following such vote, meeting pursuant to § 702.53(a)(5), (6) or makes public announcement of the (7). The Commission will vote on the time, location, and subject matter of request if one Commissioner asks that such meeting and whether it is open or a vote be taken. Such requests shall be closed to the public. made to the Staff Director within a (3) The subject matter of a meeting reasonable amount of time after the or the determination to open or close a meeting or vote in question is publicly meeting or a portion of a meeting to announced. the public may be changed following the public announcement required by § 702.55 Public announcement of meet- paragraph (b) of this section if: ings. (i) Four Commissioners when no (a) Agenda. The Staff Director shall Commissioner’s position is vacant, set as early as possible but in any three Commissioners when there is event at least eight calendar days be- such a vacancy, or two Commissioners fore a meeting, the time, location, and on a subcommittee authorized under 42 subject matter for the meeting. Agenda U.S.C. 1975a(e)(1) determine by re- items will be identified in adequate de- corded vote that Commission business tail to inform the general public of the so requires; and

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(ii) The Staff Director publicly an- rules in this part with respect to such nounces such change and the vote of requests. each Commissioner upon such change (2) Requests to review or obtain cop- at the earliest practicable time subse- ies of transcripts, electronic record- quent to the decision to make such ings, or minutes of a closed meeting change. maintained under § 702.54(e) and not re- (d)(1) FEDERAL REGISTER. Imme- leased under paragraph (a)(4) of this diately following all public announce- section shall be directed to the Staff ments required by paragraphs (b) and Director who shall respond to such re- (c) of this section, notice of the time, quests within ten (10) working days. location, and subject matter of a meet- (c) The Commission shall maintain a ing, whether the meeting is open or complete verbatim copy of the tran- closed to the public, any change in one script, a complete copy of minutes, or of the preceding, and the name and a complete electronic recording of each phone number of the official designated meeting, or portion of a meeting, by the Commission to respond to re- closed to the public, for a period of two quests for information about meeting, years after such meeting or until one shall be submitted for publication in year after the conclusion of any agency the FEDERAL REGISTER. proceeding with respect to which the (2) Notice of a meeting will be pub- meeting or portion was held, whichever lished in the FEDERAL REGISTER even occurs later. after the meeting that is the subject of the notice has occurred in order to pro- § 702.57 Administrative review. vide a public record of all Commission Any person who believes a Commis- meetings. sion action governed by this subpart to be contrary to the provisions of this § 702.56 Records. subpart shall file an objection in writ- (a) The Commission shall promptly ing with the Staff Director specifying make available to the public in an eas- the violation and suggesting corrective ily accessible place at Commission action. Whenever possible, the Staff headquarters the following materials: Director shall respond within ten (10) working days of the receipt of such ob- (1) A copy of the certification by the jections. General Counsel required by § 702.54(e)(1). (2) A copy of all recorded votes re- PART 703—OPERATIONS AND quired to be taken by these rules. FUNCTIONS OF STATE ADVISORY (3) A copy of all announcements pub- COMMITTEES lished in the FEDERAL REGISTER pursuant to this subpart. Sec. (4) Transcripts, electronic recordings, 703.1 Name and establishment. 703.2 Functions. and minutes of closed meetings deter- 703.3 Scope of subject matter. mined not to contain items of discus- 703.4 Advisory Committee Management Of- sion or information that may be with- ficer. held under § 702.53. Copies of such mate- 703.5 Membership. rial will be furnished to any person at 703.6 Officers. the actual cost of transcription or du- 703.7 Subcommittees—Special assignments. plication. 703.8 Meetings. (b)(1) Requests to review or obtain 703.9 Reimbursement of members. 703.10 Public availability of documents and copies of records compiled under this other materials. Act, other than transcripts, electronic recordings, or minutes of a closed AUTHORITY: 42 U.S.C. 1975a(d). meeting, will be processed under the SOURCE: 67 FR 70482, Nov. 22, 2002, unless Freedom of Information Act and, where otherwise noted. applicable, the Privacy Act regulations of the Commission (parts 704 and 705, § 703.1 Name and establishment. respectively, of this title). Nothing in Pursuant to 42 U.S.C. 1975a(d), the this subpart expands or limits the Commission has chartered and main- present rights of any person under the tains Advisory Committees to the

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Commission in each State, and the Dis- ies to the State covered by its charter. trict of Columbia. All relevant provi- It may, however, subject to the re- sions of the Federal Advisory Com- quirements of § 703.4, undertake to mittee Act of 1972 (Public Law 92–463, study, within the limitations of the as amended) are applicable to the man- Act, subjects other than those chosen agement, membership, and operations by the Commission for study. of such committees and subcommittees thereof. § 703.4 Advisory Committee Manage- ment Officer. § 703.2 Functions. (a) The Chief of the Regional Pro- Under the Commission’s charter each grams Coordination Unit is designated Advisory Committee shall: as Advisory Committee Management (a) Advise the Commission in writing Officer pursuant to the requirements of of any knowledge or information it has the Federal Advisory Committee Act of of any alleged deprivation of the right 1972 (Public Law 92–463, as amended). to vote and to have the vote counted (b) Such Officer shall carry out the by reason of color, race, religion, sex, functions specified in section 8(b) of age, disability, or national origin, or the Federal Advisory Committee Act. that citizens are being accorded or de- (c) Such Officer shall, for each Advi- nied the right to vote in Federal elec- sory Committee, appoint a Commission tions as a result of patterns or prac- employee to provide services to the tices of fraud or discrimination; Committee and to be responsible for (b) Advise the Commission con- supervising the activity of the Com- cerning matters related to discrimina- mittee pursuant to section 8 of the tion or a denial of equal protection of Federal Advisory Committee Act. The the laws under the Constitution and employee is subject to the supervision the effect of the laws and policies of of the Regional Director of the Com- the Federal Government with respect mission responsible for the State with- to equal protection of the laws; in which said Committee is chartered. (c) Advise the Commission upon mat- § 703.5 Membership. ters of mutual concern in the preparation of reports of the Commission to (a) Subject to exceptions made from the President and the Congress; time to time by the Commission to fit (d) Receive reports, suggestions, and special circumstances, each Advisory recommendations from individuals, Committee shall consist of at least 11 public and private organizations, and members appointed by the Commis- public officials upon matters pertinent sion. Members of the Advisory Com- to inquiries conducted by the Advisory mittees shall serve for a fixed term to Committee; be set by the Commission upon the ap- (e) Initiate and forward advice and pointment of a member subject to the recommendations to the Commission duration of Advisory Committees as upon matters that the Advisory Com- prescribed by the charter, provided mittee has studied; that members of the Advisory Com- (f) Assist the Commission in the exer- mittee may, at any time, be removed cise of its clearinghouse function and by the Commission. with respect to other matters that the (b) No person is to be denied an op- Advisory Committee has studied; portunity to serve on a State Advisory (g) Attend, as observers, any open Committee because of race, age, sex, hearing or conference that the Com- religion, national origin, or disability. mission may hold within the State. The Commission shall encourage membership on the State Advisory Com- § 703.3 Scope of subject matter. mittee to be broadly diverse. The scope of the subject matter to be [71 FR 8485, Feb. 17, 2006] dealt with by Advisory Committees shall be those subjects of inquiry or § 703.6 Officers. study with which the Commission (a) The officers of each Advisory itself is authorized to investigate, pur- Committee shall be a Chairperson, Vice suant to 42 U.S.C. 1975(a). Each Advi- Chairperson, and such other officers as sory Committee shall confine its stud- may be deemed advisable.

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(b) The Chairperson shall be ap- tion, a quorum shall consist of three pointed by the Commission. members. (c) The Vice Chairperson and other (c) Notice of all meetings of an Advi- officers shall be elected by the major- sory Committee shall be given to the ity vote of the full membership of the public. Committee. (1) Notice shall be published in the (d) The Chairperson, or in his or her FEDERAL REGISTER at least 15 days absence the Vice Chairperson, under prior to the meetings, provided that in the direction of the Commission staff emergencies such requirement may be member appointed pursuant to § 703.4(b) waived. shall: (2) Notice of meetings shall be pro- (1) Call meetings of the Committee; vided to the public by press releases (2) Preside over meetings of the Com- and other appropriate means. mittee; (3) Each notice shall contain a state- (3) Appoint all subcommittees of the ment of the purpose of the meeting, a Committee; summary of the agenda, and the date, (4) Certify for accuracy the minutes time, and location of such meeting. of Committee meetings prepared by the (d) Except as provided for in para- assigned Commission staff member; graph (d)(1) of this section, all meet- and ings of Advisory Committees or subcommittees shall be open to the public. (5) Perform such other functions as (1) The Chief of the Regional Pro- the Committee may authorize or the grams Coordination Unit may author- Commission may request. ize a Committee or subcommittee to § 703.7 Subcommittees—Special assign- hold a meeting closed to the public if ments. he or she determines that the closing of such meeting is in the public inter- Subject to the approval of the des- est provided that prior to authorizing ignated Commission employee, an Ad- the holding of a closed meeting the visory Committee may: Chief of the Regional Programs Coordi- (a) Establish subcommittees, com- nation Unit has requested and received posed of members of the Committee, to the opinion of the General Counsel study and report upon matters under with respect to whether the meeting consideration and authorize such sub- may be closed under one or more of the committees to take specific action exemptions provided in the Govern- within the competence of the Com- ment in the Sunshine Act, 5 U.S.C. mittee; and 552b(c). (b) Designate individual members of (2) In the event that any meeting or the Committee to perform special portion thereof is closed to the public, projects involving research or study on the Committee shall publish, at least matters under consideration by the annually, in summary form a report of Committee. the activities conducted in meetings not open to the public. § 703.8 Meetings. (e) Advisory Committees and sub- (a) Meetings of a Committee shall be committees may hold fact-finding convened by the designated Commis- meetings for the purpose of inviting sion employee or subject to his or her the attendance of and soliciting infor- approval by the Chairperson or a ma- mation and views from government of- jority of the Advisory Committee ficials and private persons respecting members. The agenda for such Com- subject matters within the jurisdiction mittee or subcommittee meeting shall of the Committee or subcommittee. be approved by the designated Commis- (f) Any person may submit a written sion employee. statement at any business or fact-find- (b) A quorum shall consist of one-half ing meeting of an Advisory Committee or more of the members of the Com- or subcommittee. mittee, or five members, whichever is (g) At the discretion of the des- the lesser, except that with respect to ignated Commission employee or his or the conduct of fact-finding meetings as her designee, any person may make an authorized in paragraph (e) of this sec- oral presentation at any business or

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fact-finding meeting, provided that ees of the Commission shall make such presentation will not defame, de- Commission records available under 5 grade, or incriminate any other person U.S.C. 552 only as prescribed in this as prohibited by the Act. section. Nothing contained in this section, however, shall be construed to § 703.9 Reimbursement of members. prohibit officers or employees of the (a) Advisory Committee members Commission from routinely furnishing may be reimbursed by the Commission information or records that are cus- by a per diem subsistence allowance tomarily furnished in the regular per- and for travel expenses at rates not to formance of their duties. exceed those prescribed by Congress for (2) For the purposes of this part the Government employees, for the fol- following terms are defined as indi- lowing activities only: cated: (1) Attendance at meetings, as pro- Commission means the United States vided for in § 703.8; and Commission on Civil Rights; (2) Any activity specifically re- FOIA means Freedom of Information quested and authorized by the Commis- Act, 5 U.S.C. 552; sion to be reimbursed. FOIA Request means a request in (b) Members will be reimbursed for writing, for records pursuant to 5 the expense of travel by private auto- U.S.C. 552, which meets the require- mobile on a mileage basis only to the ments of paragraph (d) of this part. extent such expense is no more than This part does not apply to telephone that of suitable public transportation or other oral communications or refor the same trip unless special cir- quests not complying with paragraph cumstances justify the additional ex- (d)(1)(i) of this section. pense of travel by private automobile. Office of the General Counsel means the General Counsel of the Commission § 703.10 Public availability of docu- or his or her designee; ments and other materials. Staff Director means the Staff Direc- Part 704 of this chapter shall be ap- tor of the Commission. plicable to reports, publications, and (b) General policy. In order to foster other materials prepared by or for Ad- the maximum participation of an in- visory Committees. formed public in the affairs of Govern- ment, the Commission will make the PART 704—INFORMATION DISCLO- fullest possible disclosure of its identi- SURE AND COMMUNICATIONS fiable records and information consistent with such considerations as Sec. those provided in the exemptions of 5 704.1 Material available pursuant to 5 U.S.C. 552 that are set forth in para- U.S.C. 552. graph (f) of this section. 704.2 Complaints. (c) Material maintained on file pursu- 704.3 Other requests and communications. ant to 5 U.S.C. 552(a)(2). Material main- 704.4 Restrictions on disclosure of informa- tained on file pursuant to 5 U.S.C. tion. 552(a)(2) shall be available for inspec- AUTHORITY: 5 U.S.C. 552, 552a, 552b. tion during regular business hours at SOURCE: 67 FR 70482, Nov. 22, 2002, unless the offices of the Commission at 624 9th otherwise noted. Street, NW., Washington, DC 20425. Copies of such material shall be avail- § 704.1 Material available pursuant to able upon written request, specifying 5 U.S.C. 552. the material desired, addressed to the (a) Purpose, scope, and definitions. (1) Office of the General Counsel, U.S. This section contains the regulations Commission on Civil Rights, 624 9th of the United States Commission on Street, NW., Washington, DC 20425, and Civil Rights implementing the Free- upon the payment of fees, if any, deter- dom of Information Act, 5 U.S.C. 552. mined in accordance with paragraph (e) These regulations inform the public of this section. with respect to where and how records (1) Current index. Included in the ma- and information may be obtained from terial available pursuant to 5 U.S.C. the Commission. Officers and employ- 552(a)(2) shall be an index of:

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(i) All other material maintained on (iii) A request for records that is not file pursuant to 5 U.S.C. 552(a)(2); and in writing or does not comply with (ii) All material published by the paragraph (d)(1)(i) of this section is not Commission in the FEDERAL REGISTER a request under the Freedom of Infor- and currently in effect. mation Act and the 10 day time limit (2) Deletion of identifying details. for agency response under the Act will Wherever deletions from material not be deemed applicable. maintained on file pursuant to 5 U.S.C. (iv) Except as otherwise provided in 552(a)(2) are required in order to pre- this section, the General Counsel shall vent a clearly unwarranted invasion of immediately notify the requester of privacy, justification for the deletions noncompliance with paragraphs shall be placed as a preamble to docu- (d)(1)(i)(C) and (e) of this section. ments from which such deletions are (2) Agency determinations. (i) Re- made. sponses to all requests pursuant to 5 (d) Materials available pursuant to 5 U.S.C. 552(a)(3) shall be made by the U.S.C. 552(a)(3)—(1) Request procedures. General Counsel in writing to the re- (i) Each request for records pursuant to quester within 10 working days after this section shall be in writing over the receipt by the General Counsel of such signature of the requester, addressed to request except as specifically exempted the Office of the General Counsel, U.S. under paragraphs (d)(1) (ii), (iii) and (iv) of this section, and shall state: Commission on Civil Rights, 624 9th (A) Whether and to what extent the Street, NW., Washington, DC 20425 and: Commission will comply with the re- (A) Shall clearly and prominently be quest; identified as a request for information (B) The probable availability of the under the Freedom of Information Act records or that the records may be fur- (if submitted by mail or otherwise sub- nished with deletions or that records mitted in an envelope or other cover, will be denied as exempt pursuant to 5 be clearly and prominently identified U.S.C. 552(b)(1) through (9); as such on the envelope or other (C) The estimated costs, determined cover—e.g., FOIA); and in accordance with paragraph (e) of (B) Shall contain a sufficiently spe- this section, including waiver or reduc- cific description of the record re- tion of fee as appropriate and any de- quested with respect to names, dates, posit or prepayment requirement; and and subject matter to permit such (D) When records are to be provided, record to be identified and located; and the time and place at which records or (C) Shall contain a statement that copies will be available determined in whatever costs involved pursuant to accordance with the terms of the re- paragraph (e) of this section will be quest and with paragraph (d)(3) of this paid, that such costs will be paid up to section. Such response shall be termed a specified amount, or that waiver or a determination notice. reduction of fees is requested pursuant (ii) In the case of denial of requests to paragraph (e) of this section. in whole or part the determination no- (ii) If the information submitted pur- tice shall state: suant to paragraph (d)(1)(i)(B) of this (A) Specifically what records are section is insufficient to enable identi- being denied; fication and location of the records, (B) The reasons for such denials; the General Counsel shall as soon as (C) The specific statutory exemp- possible notify the requester in writing tion(s) upon which such denial is based; indicating the additional information (D) The names and titles or positions needed. Every reasonable effort shall of every person responsible for the de- be made to assist in the identification nial of such request; and and location of the record sought. Time (E) The right of appeal to the Staff requirements under the regulations in Director of the Commission and proce- this part are tolled from the date noti- dures for such appeal as provided under fication under this section is sent to paragraph (g) of this section. the requester until an answer in writ- (iii) Each request received by the Of- ing to such notification is received fice of the General Counsel for records from requester. pursuant to the regulations in this part

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shall be recorded immediately. The of separate and distinct records that record of each request shall be kept are demanded in a single request; or current, stating the date and time the (C) For consultation, which shall be request is received, the name and ad- conducted with all practicable speed, dress of the person making the request, with another agency having a substan- any amendments to such request, the tial interest in the determination of nature of the records requested, the ac- the request or among two or more com- tion taken regarding the request, in- ponents of the same agency having sub- cluding waiver of fees, extensions of stantial subject matter interest there- time pursuant to 5 U.S.C. 552(a)(6)(B), in. and appeals. The date and subject of (e) Fees—(1) Definitions. The following any letters pursuant to paragraph definitions apply to the terms when (d)(1) of this section or agency deter- used in this section: minations pursuant to paragraph (i) Direct costs means those expendi- (d)(2)(i) of this section, the date(s) any tures that the Commission actually in- records are subsequently furnished, and curs in searching for and duplicating the payment requested and received. (and in the case of commercial request- (3) Time limitations. (i) Time limita- ers, reviewing) documents to respond tions for agency response to a request to a request made under paragraph (d) for records established by the regula- of this section. Direct costs include, for tions in this part shall begin when the example, the salary of the employee(s) request is recorded pursuant to para- performing the work (the basic rate of graph (d)(2)(iii) of this section. A writ- pay for the employee(s) plus 16 percent ten request pursuant to FOIA but sent of that rate to cover benefits) and the to an office of the Commission other cost of operating duplicating machin- than the Office of the General Counsel ery. Not included in direct costs are shall be date stamped, initialed, and re- overhead expenses such as costs of directed immediately to the Office of space and heating or lighting the facil- the General Counsel. The required pe- ity in which the records are stored. riod for agency determination shall (ii) Search means all time spent look- begin when it is received by the Office ing for material that is responsive to a of the General Counsel in accordance request, including page-by-page or line- with paragraph (d)(2)(iii) of this sec- by-line identification within docu- tion. ments. However, an entire document (ii) In unusual circumstances, pursu- will be duplicated if this would prove ant to 5 U.S.C. 552(a)(6)(B), the General to be a more efficient and less expen- Counsel may, in the case of initial de- sive method of complying with a re- terminations under the regulations in quest than a more detailed manner of this part, extend the 10 working day searching. Search is distinguished from time limit in which the agency is re- review of material in order to deter- quired to make its determination noti- mine whether the material is exempt fication. Such extension shall be com- from disclosure. municated in writing to the requesting (iii) Duplication means the process of party setting forth with particularity making a copy of a document nec- the reasons for such extension and the essary to respond to a request for dis- date on which a determination is ex- closure of records. Such copies can pected to be transmitted. Such exten- take the form of paper or machine sions may not exceed 10 working days readable documentation (e.g., magnetic for any request and may only be used tape or disk), among others. to the extent necessary to properly (iv) Review means the process of ex- process a particular request. Such examining documents located in response tension is permissible only where there to an information request to determine is a demonstrated need: whether any portion of any document (A) To search for and collect the re- is permitted to be withheld. It also in- quested records from field facilities or cludes processing any documents for other establishments that are separate disclosure, e.g., doing all that is nec- from the Office of the General Counsel; essary to prepare them for release. Re- (B) To search for, collect, and appro- view does not include time spent re- priately examine a voluminous amount solving general legal or policy issues

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regarding the application of exemp- (i) Commercial use requests. Fees will tions. include the Commission’s direct costs (v) Commercial use request means a for searching for, reviewing, and dupli- request from or on behalf of one who cating the requested records. seeks information for a use or purpose (ii) Educational and noncommercial sci- that furthers the commercial, trade, or entific institution requests. The Commis- profit interests of the requester or the sion will provide documents to request- person on whose behalf the request is ers in this category for the cost of du- made. In deciding whether a requester plication alone, excluding charges for properly belongs in this category, the the first 100 pages. To be eligible for in- General Counsel will determine the use clusion in this category, requesters to which a requester will put the docu- must show that the request is being ments requested. When the General made under the auspices of a qualifying Counsel has reasonable cause to doubt institution and that the records are such intended use, or where such use is sought in furtherance of scholarly (if not clear from the request itself, the the request is from an educational in- General Counsel will seek additional stitution) or scientific (if the request is clarification before assigning the re- from a noncommercial scientific insti- quest to a specific category. tution) research. (vi) Educational institution means a (iii) Requests from representatives of school, an institution of higher edu- the news media. The Commission will cation, an institution of professional provide documents to requesters in this education, or an institution of voca- category for the cost of duplication tional education that operates a pro- alone, excluding charges for the first gram or programs of scholarly re- 100 pages. To be eligible for inclusion in search. this category a requester must meet (vii) Noncommercial scientific institu- the criteria in paragraph (e)(1)(viii) of tion means an institution that is not this section. operated on a commercial basis and (iv) All other requests. The Commis- that is operated solely for the purpose sion will charge requesters who do not of conducting scientific research the fit into any of the categories in para- results of which are not intended to graphs (e)(2)(i) through (iii) of this sec- promote any particular product or in- tion fees that cover the direct costs of dustry. searching for and duplicating records (viii) Representative of the news media that are responsive to the requests, ex- means any person actively gathering cept for the first two hours of search news for an entity that is organized time and the first 100 pages duplicated. and operated to publish or broadcast However, requests from persons for news to the public. The term news records about themselves will continue means information that is about cur- to be treated under the fee provisions rent events or that would be of current of the Privacy Act of 1974 and § 705.10 of interest to the public. News media en- this chapter. tities include television or radio sta- (3) Fee calculation. Fees will be cal- tions broadcasting to the public at culated as follows: large, and publishers of periodicals (but (i) Manual search. At the salary rate only in those instances when they can (basic pay plus 16 percent) of the em- qualify as disseminators of news) who ployee(s) making the search. make their products available for pur- (ii) Computer search. At the actual di- chase or subscription by the general rect cost of providing the search, in- public. Freelance journalists may be cluding computer search time directly regarded as working for a news organi- attributable to search for records re- zation if they can demonstrate a solid sponsive to the request, runs, and oper- basis for expecting publication through ator salary apportionable to the that organization, even though not ac- search. tually employed by it. (iii) Review (commercial use requests (2) Costs to be included in fees. The di- only). At the salary rate (basic pay rect costs included in fees will vary ac- plus 16 percent) of the employee(s) con- cording to the following categories of ducting the review. Only the review requests: necessary at the initial administrative

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level to determine the applicability of offer the requester an opportunity to any exemption, and not review at the confer with the General Counsel in an administrative appeal level, will be in- attempt to reformulate the request so cluded in the fee. as to meet the requester’s needs at a (iv) Duplication. At 20 cents per page lower cost. The administrative time for paper copy. For copies of records limits prescribed in 5 U.S.C. 552(a)(6) prepared by computer (such as tapes or will not begin until after the requester printouts), the actual cost of produc- agrees in writing to accept the prospec- tion, including operator time, will be tive charges. charged. (6) Advance payment of fees. When fees (v) Additional services; certification. are projected to exceed $250.00, the re- Express mail and other additional serv- quester may be required to make an ices that may be arranged by the re- advance payment of all or part of the quester will be charged at actual cost. fee before the request is processed. If a The fee for certification or authentica- requester has previously failed to pay a tion of copies shall be $3.00 per docu- fee in a timely fashion (i.e., within 30 ment. days of the billing date), the requester (vi) Assessment of interest. The Com- will be required to pay the full amount mission may begin assessing interest owed plus any applicable interest, and charges on the 31st day following the to make an advance payment of the day the fee bill is sent. Interest will be full amount of the estimated fee before at the rate prescribed in 31 U.S.C. 3717 a new or pending request is processed and will accrue from the date of bill- from that requester. The administra- ing. tive time limits prescribed in 5 U.S.C. (vii) No fee shall be charged if the 552(a)(6) will not begin until after the total billable cost calculated under requester has complied with this provi- paragraphs (e)(2) and (3) of this section sion. is less than $10.00. (7) Other provisions—(i) Charges for (4) Waiver or reduction of fees. (i) Doc- unsuccessful search. Charges may be as- uments will be furnished without sessed for time spent searching for re- charge, or at a reduced charge, where quested records, even if the search fails disclosure of the information is in the to locate responsive records or the public interest because it is likely to records are determined, after review, to contribute significantly to public un- be exempt from disclosure. derstanding of the operations or activities of the government and is not pri- (ii) Aggregating requests to avoid fees. marily in the commercial interest of Multiple requests shall be aggregated the requester. when the General Counsel reasonably (ii) Whenever a waiver or reduction determines that a requester or group of of fees is granted, only one copy of the requesters is attempting to break down record will be furnished. a request into a series of requests to (iii) The decision of the General evade fees. Counsel on any fee waiver or reduction (iii) Debt Collection Improvement Act of request shall be final and unappealable. 1996. The Debt Collection Improvement (5) Payment procedures—(i) Fee pay- Act of 1996 (Pub. L. 104–134), including ment. Payment of fees shall be made by disclosure to consumer reporting agen- cash (if delivered in person), check, or cies and use of collection agencies, will money order payable to the United be used to encourage payment where States Commission on Civil Rights. appropriate. (ii) Notification of fees. No work shall (f) Exemptions (5 U.S.C. 552(b))–(1) be done that will result in fees in ex- General. The Commission may exempt cess of $25.00 without written author- from disclosure matters that are: ization from the requester. Where it is (i)(A) Specifically authorized under anticipated that fees will exceed $25.00, criteria established by an Executive and the requester has not indicated in Order to be kept secret in the interest advance a willingness to pay fees as of national defense or foreign policy high as are anticipated, the requester and will be notified of the amount of the (B) Are in fact properly classified projected fees. The notification shall pursuant to such Executive Order.

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(ii) Related solely to the internal per- (i) Among the documents exempt sonnel rules and practices of an agen- from disclosure pursuant to paragraph cy; (f)(1)(vii) of this section shall be (iii) Specifically exempted from dis- records or information reflecting inves- closure by statute; tigations that either are conducted for (iv) Trade secrets and commercial or the purpose of determining whether a financial information obtained from a violation(s) of legal right has taken person and privileged or confidential; place, or have disclosed that a viola- (v) Interagency or intra-agency tion(s) of legal right has taken place, memoranda or letters that would not but only to the extent that production be available by law to a party other of such records or information would than an agency in litigation with the fall within the classifications estab- agency; lished in paragraphs (f)(1)(vii)(B) (vi) Personnel and medical files and through (F) of this section. similar files the disclosure of which (ii) Among the documents exempt would constitute a clearly unwarranted from disclosure under para- invasion of personal privacy; graphs(f)(1)(vii)(D) and (f)(2)(i) of this (vii) Records or information compiled section concerning confidential sources for law enforcement purposes, but only shall be documents that disclose the to the extent that the production of fact or the substance of a communica- such law enforcement records or infor- tion made to the Commission in con- mation: fidence relating to an allegation or (A) Could reasonably be expected to support of an allegation of wrongdoing interfere with enforcement pro- by certain persons. It is sufficient ceedings; under this section to indicate the con- (B) Could deprive a person of a right fidentiality of the source if the sub- to a fair trial or an impartial adjudica- stance of the communication or the tion; circumstances of the communication (C) Could reasonably be expected to indicate that investigative effective- constitute an unwarranted invasion of ness could reasonably be expected to be personal privacy; inhibited by disclosure. (D) Could reasonably be expected to (iii) Whenever a request is made that disclose the identity of a confidential involves access to records described in source, including a State, local, or for- paragraph (f)(1)(vii)(A) of this section eign agency or authority or any pri- and the investigation or proceeding in- vate institution that furnished infor- volves a possible violation of criminal mation on a confidential basis; (E) Could disclose techniques and law and there is reason to believe that procedures for all enforcement inves- the subject of the investigation or pro- tigations or prosecutions, or could dis- ceeding is not aware of its pendency close guidelines for law enforcement and disclosure of the existence of the investigations or prosecutions if such records could reasonably be expected to disclosure could reasonably be ex- interfere with enforcement pro- pected to risk circumvention of the ceedings, the Commission may, during law; or only such time as that circumstance (F) Could reasonably be expected to continues, treat the records as not sub- endanger the life or physical safety of ject to the requirements of 5 U.S.C. 552 any individual; and this section. (viii) Contained in or related to ex- (3) Any reasonably segregable portion amination, operating, or condition re- of a record shall be provided to any ports prepared by, on behalf of, or for person requesting such record after de- the use of an agency responsible for the letion of the portions that are exempt regulation or supervision of financial under this section. institutions; and (g) Administrative appeals. (1) These (ix) Geological and geophysical infor- procedures apply whenever a requester mation and data, including maps, con- is denied records under paragraph cerning wells. (d)(2)(i) of this section. (2) Investigatory records or informa- (2) Parties may appeal decisions tion. (5 U.S.C. 552(b)(7)). under paragraph (d)(2)(i) of this section

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within 90 days of the date of such deci- (b) Accurate designations of place lo- sion by filing a written request for re- cations involved; view addressed to the Staff Director, (c) Dates of events described in the U.S. Commission on Civil Rights, 624 complaint. 9th Street, NW., Washington, DC 20425, by certified mail, including a copy of § 704.3 Other requests and communica- the written denial, and may include a tions. statement of the circumstances, rea- Requests for information should be sons or arguments advanced in support addressed to the Public Affairs Unit of disclosure. Review will be made by and requests for Commission literature the Staff Director on the basis of the should be directed to National Clear- written record. inghouse Library, U.S. Commission on (3) The decision on review of any ap- Civil Rights, 624 9th Street, NW., Wash- peal filed under this section shall be in ington DC 20425. Communications with writing over the signature of the Staff respect to Commission proceedings Director will be promptly commu- should be made pursuant to § 702.17 of nicated to the person requesting review this chapter. All other communications and will constitute the final action of should be directed to Office of Staff Di- the Commission. rector, U.S. Commission on Civil (4) Determinations of appeals filed Rights, 624 9th Street, Washington, DC under this section shall be made within 20425. 20 working days after the receipt of § 704.4 Restrictions on disclosure of in- such appeal. If, on appeal, denial of formation. records is in whole or part upheld, the Staff Director shall notify the persons (a) By the provisions of the Act, no making such request of the provisions evidence or testimony or summary of for judicial review of that determina- evidence or testimony taken in executive session may be released or used in tion under 5 U.S.C. 552(a)(6). public sessions without the consent of (5) An extension of time may be the Commission, and any person who granted under this section pursuant to releases or uses in public without the criteria established in paragraph consent of the Commission such evi- (d)(3)(ii) (A) through (C) of this section, dence or testimony taken in executive except that such extension together session shall be fined not more than with any extension, which may have $1,000 or imprisoned for not more than been granted pursuant to paragraph 1 year. (d)(3)(ii) of this section, may not ex- (b) Unless a matter of public record, ceed a total of 10 working days. all information or documents obtained or prepared by any Commissioner, offi- § 704.2 Complaints. cer, or employee of the Commission, Any person may bring to the atten- including members of Advisory Com- tion of the Commission a grievance mittees, in the course of his or official that he or she believes falls within the duties, or by virtue of his or her offi- jurisdiction of the Commission, as set cial status, shall not be disclosed or forth in section 3 of the Act. This shall used by such person for any purpose ex- be done by submitting a complaint in cept in the performance of his or her writing to the Office of Civil Rights official duties. Evaluation, U.S. Commission on Civil (c) Any Commissioner, officer, or em- Rights, 9th Street, NW., Washington, ployee of the Commission, including DC 20425. Allegations falling under sec- members of Advisory Committees, who tion 3(a)(1) of the Act must be under is served with a subpoena, order, or oath or affirmation. All complaints other demand requiring the disclosure should set forth the pertinent facts of such information or the production upon which the complaint is based, in- of such documents shall appear in re- cluding but not limited to specification sponse to such subpoena, order, or of: other demand and, unless otherwise di- (a) Names and titles of officials or rected by the Commission, shall re- other persons involved in acts forming spectfully decline to disclose the infor- the basis for the complaint; mation or produce the documents

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called for, basing his or her refusal (c) The rules in this part apply only upon this section. Any such person who to records disclosed or requested under is served with such a subpoena, order, the Privacy Act of 1974, and not to re- or other demand shall promptly advise quests for information made pursuant the Commission of the service of such to the Freedom of Information Act, 5 subpoena, order, or other demand, the U.S.C. 552. nature of the information or documents sought, and any circumstances § 705.2 Definitions. that may bear upon the desirability of For the purpose of this part: making available such information or documents. (a) Commission and agency mean the U.S. Commission on Civil Rights; (b) Individual means a citizen of the PART 705—MATERIALS AVAILABLE United States or an alien lawfully ad- PURSUANT TO 5 U.S.C. 552a mitted for permanent residence; (c) Maintain includes maintain, col- Sec. 705.1 Purpose and scope. lect, use, or disseminate; 705.2 Definitions. (d) Record means any item, collec- 705.3 Procedures for requests pertaining to tion, or grouping of information about individual records in a system of records. an individual that is maintained by the 705.4 Times, places, and requirements for Commission, including, but not limited identification of individuals making re- to, his or her education, financial quests and identification of records re- transactions, medical history, and quested. 705.5 Disclosure of requested information to criminal or employment history and individuals. that contains his or her name, or the 705.6 Request for correction or amendment identifying number, symbol, or other to record. identifying particular assigned to the 705.7 Agency review of request for correc- individual; tion or amendment of the record. (e) System record means a group of 705.8 Appeal of an initial adverse agency determination. any records under the control of the 705.9 Disclosure of records to a person other Commission from which information than the individual to whom the record may be retrieved by the name of the in- pertains. dividual or by some identifying num- 705.10 Fees. ber, symbol, or other identifying par- 705.11 Penalties. ticular assigned to that individual; 705.12 Special procedures: Information fur- (f) Statistical record means a record in nished by other agencies. 705.13 Exemptions. a system of records maintained for sta- 705.95 Accounting of the disclosures of tistical research or reporting purposes records. only and not used in whole or in part in making any determination about an AUTHORITY: 5 U.S.C. 552a. identifiable individual, except as pro- SOURCE: 67 FR 70482, Nov. 22, 2002, unless vided in 13 U.S.C. 8; otherwise noted. (g) Routine use means, with respect to § 705.1 Purpose and scope. the disclosure of a record, the use of such record for a purpose that is com- (a) The purpose of this part is to set patible with the purpose for which it forth rules to inform the public regard- was collected; ing information maintained by the United States Commission on Civil (h) Confidential source means a source Rights about identifiable individuals who furnished information to the Gov- and to inform those individuals how ernment under an express promise that they may gain access to and correct or the identity of the source would re- amend information about themselves. main confidential, or, prior to Sep- (b) The rules in this part carry out tember 27, 1975, under an implied prom- the requirements of the Privacy Act of ise that the identity of the source 1974 (Public Law 93–579) and in par- would be held in confidence; and ticular 5 U.S.C. 552a as added by that (i) Act means the Privacy Act of 1974, Act. Public Law 93–579.

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§ 705.3 Procedures for requests per- Region I: Eastern Regional Office, taining to individual records in a Washington, DC system of records. Connecticut, Delaware, District of Colum- (a) An individual seeking notification bia, Maine, Maryland, Massachusetts, New of whether a system of records con- Hampshire, New Jersey, New York, Pennsyl- vania, Rhode Island, Vermont, Virginia, and tains a record pertaining to him or her West Virginia. or an individual seeking access to information or records pertaining to him Region II: Southern Regional Office, or her, that are available under the Atlanta, Georgia Privacy Act of 1974, shall present his or Florida, Georgia, Kentucky, North Caro- her request in person or in writing to lina, South Carolina, and Tennessee. the General Counsel of the Commis- sion. Region III: Midwestern Regional Office, Chicago, Illinois (b) In addition to meeting the requirements set forth in § 705.4(c) or (d), Illinois, Indiana, Michigan, Minnesota, any person who requests information Ohio, and Wisconsin. under the regulations in this part shall Region IV: Central Regional Office, Kansas provide a reasonably specific descrip- City, Kansas tion of the information sought so that it may be located without undue search Alabama, Arkansas, Iowa, Kansas, Lou- isiana, Mississippi, Missouri, Nebraska, and or inquiry. If possible, that description Oklahoma. should include the nature of the records sought, the approximate dates Region V: Rocky Mountain Regional Office, covered by the record, and, if known by Denver, Colorado the requester, the system in which the Colorado, Montana, New Mexico, North Da- record is thought to be included. Re- kota, South Dakota, Utah, and Wyoming. quested information that is not identified by a reasonably specific descrip- Region VI: Western Regional Office, Los Angeles, California tion is not an identifiable record, and the request for that information can- Alaska, Arizona, California, Hawaii, Idaho, not be treated as a formal request. Nevada, Oregon, Texas, and Washington. (c) If the description is insufficient, (c) An individual seeking access to the agency will notify the requester records in person may establish his or and, to the extent possible, indicate her identity by the presentation of one the additional information required. document bearing a photograph (such Every reasonable effort shall be made as a driver’s license, passport, or iden- to assist a requester in the identifica- tification card or badge) or by the pres- tion and location of the record or entation of two items of identification records sought. that do not bear a photograph, but do bear both a name and address (such as § 705.4 Times, places, and require- a credit card). When identification is ments for identification of individ- made without photographic identifica- uals making requests and identi- tion, the Commission will request a fication of records requested. signature comparison to the signature (a) The General Counsel is the des- appearing on the items offered for iden- ignated Privacy Act Officer for the tification, whenever possible and prac- Commission. tical. (b) An individual making a request to (d) An individual seeking access to the General Counsel in person may do records by mail shall establish his or so at the Commission’s headquarters her identity by a signature, address, office, 624 9th Street, N.W., Wash- date of birth, and one other identifica- ington, D.C. 20425, on any business day tion, such as a copy of a driver’s li- during business hours. Persons may cense, passport, identification card or also appear for purposes of identifica- badge, credit card, or other document. tion only, at any of the regional offices The words Privacy Act Request should of the Commission on any business day be placed in capital letters on the face during business hours. Regional offices of the envelope in order to facilitate are located as follows: requests by mail.

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(e) An individual seeking access in (b) Each individual requesting a cor- person or by mail who cannot provide rection or amendment shall send the the required documentation of identi- request to the General Counsel. fication may provide a notarized state- (c) Each request for a correction or ment, swearing or affirming to his or amendment of a record shall contain her identity and to the fact that he or the following information: she understands that there are crimi- (1) The name of the individual re- nal penalties for the making of false questing the correction or amendment. statements. (2) The name of the system of records (f) The parent or guardian of a minor in which the record sought to be or a person judicially determined to be amended is maintained. incompetent, in addition to estab- (3) The location of the record system lishing the identity of the minor or in- from which the record was obtained. competent person he or she represents (4) A copy of the record sought to be amended or a description of that as required by paragraphs (a) through record. (c) of this section, shall establish his or (5) A statement of the material in the her own parentage or guardianship by record that should be corrected or furnishing a copy of a birth certificate amended. showing parentage or court order es- (6) A statement of the specific word- tablishing guardianship. ing of the correction or amendment (g) An individual seeking to review sought. information about himself or herself (7) A statement of the basis for the may be accompanied by another person requested correction or amendment, in- of his or her own choosing. In all such cluding any material that the indi- cases, the individual seeking access vidual can furnish to substantiate the shall be required to furnish a written reasons for the amendment sought. statement authorizing the discussion of his or her record in the presence of § 705.7 Agency review of request for the accompanying person. correction or amendment of the record. § 705.5 Disclosure of requested infor- Within ten (10) working days (exclud- mation to individuals. ing Saturdays, Sundays and legal pub- The General Counsel, or one or more lic holidays) of the receipt of the re- assistants designated by him or her, quest for the correction or amendment upon receiving a request for notifica- of a record, the General Counsel shall tion of the existence of a record or for acknowledge receipt of the request and access to a record shall: inform the individual that his or her (a) Determine whether such record request has been received and inform exists; the individual whether further infor- (b) Determine whether access is mation is required before the correc- available under the Privacy Act; tion or amendment can be considered. Further, the General Counsel shall (c) Notify the requesting person of promptly and, under normal cir- those determinations within 10 (ten) cumstances, not later than thirty (30) working days (excluding Saturdays, working days after receipt of the re- Sundays, and legal public holidays); quest, make the requested correction and or amendment or notify the individual (d) Provide access to information of his or her refusal to do so, including pertaining to that person that has been in the notification the reasons for the determined to be available. refusal and the procedures established by the Commission by which the indi- § 705.6 Request for correction or vidual may initiate a review of that re- amendment to record. fusal. In the event of correction or (a) Any individual who has reviewed amendment, an individual shall be pro- a record pertaining to him or her that vided with one copy of each record or was furnished to him or her under this portion thereof corrected or amended part may request the agency to correct pursuant to his or her request without or amend all or part of that record. charge as evidence of the correction or

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amendment. The Commission shall ment setting forth the reasons for his also provide to all prior recipients of or her disagreement with the Commis- such a record, the corrected or amend- sion’s decision denying the request. ed information to the extent that it is The Commission shall make this state- relevant to the information previously ment available to any person to whom furnished to a recipient pursuant to the record is later disclosed together the Privacy Act. with a brief statement, if the Commis- sion considers it appropriate, of the § 705.8 Appeal of an initial adverse agency’s reasons for denying the re- agency determination. quested correction or amendment. (a) Any individual whose request for These statements shall also be pro- access or for a correction or amend- vided to all prior recipients of the ment that has been denied, in whole or record to the extent that it is relevant in part, by the General Counsel may to the information previously fur- appeal that decision to the Staff Direc- nished to a recipient pursuant to the tor of the Commission, 624 9th Street, Privacy Act. NW., Washington, DC 20425, or to a designee of the Staff Director. § 705.9 Disclosure of records to a per- (b) The appeal shall be in writing and son other than the individual to shall: whom the record pertains. (1) Name the individual making the (a) Any individual who desires to appeal; have his or her record disclosed to or (2) Identify the record sought to be mailed to a third person may authorize amended or corrected; that person to act as his or her agent (3) Name the record system in which for that specific purpose. The author- that record is contained; ization shall be in writing, signed by (4) Contain a short statement de- the individual, and notarized. The scribing the amendment or correction agent shall also submit proof of his or sought; and her own identity as provided in § 705.4. (5) State the name of the person who (b) The parent of any minor indi- initially denied the correction or vidual or the legal guardian of any in- amendment. dividual who has been declared by a (c) Not later than thirty (30) working court to be incompetent, due to phys- days (excluding Saturdays, Sundays, ical or mental incapacity, may act on and legal public holidays) after the behalf of that individual in any matter date on which the agency received the covered by this part. A parent or appeal, the Staff Director shall com- guardian who desires to act on behalf plete his or her review of the appeal of such an individual shall present suit- and make a final decision thereon, unable evidence of parentage or guardian- less, for good cause shown, the Staff ship by birth certificate, copy of a Director extends the appeal period be- court order or similar documents, and yond the initial thirty (30) day appeal proof of the individual’s identity as period. In the event of such an exten- provided in § 705.4. sion, the Staff Director shall promptly (c) An individual to whom a record is notify the individual making the ap- to be disclosed, in person, pursuant to peal that the period for a final decision this part may have a person of his or has been extended. her own choosing accompany the indi- (d) After review of an appeal request, vidual when the record is disclosed. the Staff Director will send a written notice to the requester containing the § 705.10 Fees. following information: If an individual requests copies of his (1) The decision; and if the denial is or her records the charge shall be three upheld, the reasons for the decision; (3) cents per page; however, the Com- (2) The right of the requester to insti- mission shall not charge for copies fur- tute a civil action in a Federal District nished to an individual as a necessary Court for judicial review of the deci- part of the process of disclosing the sion if the appeal is denied; and record to an individual. Fees may be (3) The right of the requester to file waived or reduced in accordance with with the Commission a concise state- § 704.1(e) of this chapter because of

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indigency, where the cost is nominal, sions on the rights, benefits, or entitle- when it is in the public interest not to ments of individuals. charge, or when waiver would not con- (3) Exemption (k)(5) of the Act. Inves- stitute an unreasonable expense to the tigatory material maintained solely Commission. for the purposes of determining an individual’s qualifications, eligibility, or § 705.11 Penalties. suitability for employment in the Fed- Any person who makes a false state- eral civilian service, Federal contracts, ment in connection with any request or access to classified information, but for a record, or in any request for an only to the extent that disclosure of amendment to a record under this part, such material would reveal the iden- is subject to the penalties prescribed in tity of the source who furnished infor- 18 U.S.C. 494 and 495. mation to the Government under an express promise that the identity of § 705.12 Special procedures: Informa- the source would be held in confidence, tion furnished by other agencies. or prior to September 27, 1975, under an When records or information sought implied promise that the identity of from the Commission include informa- the source would be held in confidence. tion furnished by other Federal agen- (4) Exemption (k)(6) of the Act. Testing cies, the General Counsel shall consult or examination material used solely to with the appropriate agency prior to determine individual qualifications for making a decision to disclose or to promotion or appointment in the Fed- refuse to disclose the record, but the eral service the disclosure of which decision whether or not to disclose the would compromise the objectivity or record shall be made by the General fairness of the testing or examination Counsel. process. § 705.13 Exemptions. (b) Following are Commission systems of records that are partially ex- (a) Under the provision of 5 U.S.C. empt under 5 U.S.C. 552a(k)(2), (4), (5), 552a(k), it has been determined by the and (6) and the reasons for such exemp- agency that the following exemptions tions: are necessary and proper and may be asserted by the agency: (1) Appeals, Grievances, and Com- (1) Exemption (k)(2) of the Act. Inves- plaints (staff)—Commission Project, tigatory material compiled for law en- CRC–001. Exempt partially under 5 forcement purposes, other than mate- U.S.C. 552a(k)(2). The reasons for pos- rial within the scope of subsection sibly asserting the exemptions are to (j)(2) of the Privacy Act: Provided, prevent subjects of investigation from however, That if any individual is de- frustrating the investigatory process, nied any right, privilege, or benefit to prevent disclosure of investigative that he or she would otherwise be eligi- techniques, to maintain the ability to ble for, as a result of the maintenance obtain necessary information, to fulfill of such material, such material shall commitments made to sources to pro- be provided to such individual, except tect their identities and the confiden- to the extent that the disclosure of tiality of information and to avoid en- such material would reveal the identify dangering these sources. of a source who furnished information (2) Complaints, CRC–003—Exempt to the Government under an express partially under 5 U.S.C. 552a(k)(2). The promise that the identity of the source reasons for possibly asserting the ex- would be held in confidence, or, prior emptions are to prevent subjects of in- to [the effective date of this section], vestigation from frustrating the inves- under an implied promise that the tigatory process, to prevent disclosure identity of the source would be held in of investigative techniques, to main- confidence. tain the ability to obtain necessary in- (2) Exemption (k)(4) of the Act. Statis- formation, to fulfill commitments tical personnel records that are used made to sources to protect their identi- only to generate aggregate data or for ties and the confidentiality of informa- other evaluative or analytical purposes tion and to avoid endangering these and that are not used to make deci- sources.

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(3) Commission projects, CRC–004— (c) The accounting shall be main- Partially exempt under 5 U.S.C. tained for 5 years or until the record is 552a(k)(2). The reasons for asserting the destroyed or transferred to the Na- exemptions are to prevent subjects of tional Archives and Records Adminis- investigation from frustrating the in- trator for storage, in which event, the vestigatory process, to prevent disclo- accounting pertaining to those records, sure of investigative techniques, to unless maintained separately, shall be maintain the ability to obtain nec- transferred with the records them- essary information, to fulfill commit- selves. ments made to sources to protect their (d) The accounting of disclosures identities and the confidentiality of in- may be recorded in any system the formation and to avoid endangering Commission determines is sufficient these sources. (4) Other Employee Programs: EEO, for this purpose, however, the Commis- Troubled Employee, and Upward Mobil- sion must be able to construct from its ity, CRC–006—Partially exempt under 5 system a listing of all disclosures. The U.S.C. 552a(k)(4), (5), and (6). The rea- system of accounting of disclosures is sons for asserting the exemptions are not a system of records under the defi- to maintain the ability to obtain can- nition in § 705.2(e) and no accounting did and necessary information, to ful- need be maintained for disclosure of fill commitments made to sources to the accounting of disclosures. protect the confidentiality of informa- (e) Upon request of an individual to tion, to avoid endangering these whom a record pertains, the account- sources and, primarily, to facilitate ing of the disclosures of that record proper selection or continuance of the shall be made available to the re- best applicants or persons for a given quester, provided that he or she has position. complied with § 705.3(a) and with (5) State Advisory Committees § 705.4(c) or (d). Projects, CRC–009—Partially exempt under 5 U.S.C. 552a(k)(2). The reasons for possibly asserting the exemptions PART 706—EMPLOYEE are to prevent subjects of investigation RESPONSIBILITIES AND CONDUCT from frustrating the investigatory process, to prevent disclosure of inves- AUTHORITY: 5 U.S.C. 7301; 42 U.S.C. 1975b(d). tigative techniques, to maintain the ability to obtain necessary informa- § 706.1 Cross-references to employee tion, to fulfill commitments made to ethical conduct standards, financial sources to protect their identities and disclosure and financial interests the confidentiality of information and regulations and other conduct to avoid endangering these sources. rules. Employees of the United States Com- § 705.95 Accounting of the disclosures of records. mission on Civil Rights are subject to the executive branch standards of eth- (a) All disclosures of records covered ical conduct contained in 5 CFR part by this part, except for the exemptions 2635, the Commission regulations at 5 listed in paragraph (b) of this section, CFR part 7801 which supplement the shall be accounted for by keeping a executive branchwide standards, the written record of the particular record disclosed, the name and address of the executive branch financial disclosure person or agency to whom or to which regulations contained in 5 CFR part disclosed, and the date, nature, and 2634, and the executive branch financial purpose of the disclosure. interests regulations contained in 5 (b) No accounting is required for dis- CFR part 2640, as well as the executive closures of records to those officials branch employee responsibilities and and employees of the Commission who conduct regulations contained in 5 CFR have a need for the record in the per- part 735. formance of their duties or if disclo- [73 FR 33727, June 13, 2008] sure would be required under the Free- dom of Information Act. 5 U.S.C. 552.

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PART 707—ENFORCEMENT OF rials, audio recordings, and other simi- NONDISCRIMINATION ON THE lar services and devices. Auxiliary aids BASIS OF DISABILITY IN PRO- useful for persons with impaired hearing include telephone handset ampli- GRAMS OR ACTIVITIES CON- fiers, telephones compatible with hear- DUCTED BY U.S. COMMISSION ing aids, telecommunication devices ON CIVIL RIGHTS for deaf persons (TDD’s), interpreters, note takers, written materials, and Sec. other similar services and devices. 707.1 Purpose. (c) Complete complaint means a writ- 707.2 Application. ten statement that contains the com- 707.3 Definitions. 707.4 Self-evaluation and remedial meas- plainant’s name and address and de- ures. scribes the Agency’s alleged discrimi- 707.5 Notice. natory action in sufficient detail to in- 707.6 General prohibitions against discrimi- form the Agency of the nature and date nation. of the alleged violation of section 504. 707.7 Employment. It shall be signed by the complainant 707.8 Physical access. or by someone authorized to do so on 707.9 Access to communications. his or her behalf. Complaints filed on 707.10 Auxiliary aids. 707.11 Eliminating discriminatory qualifica- behalf of classes or third parties shall tions and selection criteria. describe or identify (by name, if pos- 707.12 Compliance procedures. sible) the alleged victims of discrimination. AUTHORITY: 29 U.S.C. 791 et seq. (d) Facility means all or any portion SOURCE: 67 FR 70482, Nov. 22, 2002, unless of buildings, structures, equipment, otherwise noted. roads, walks, parking lots, vehicles, or other real or personal property. § 707.1 Purpose. (e) Individual with disabilities means The purpose of this part is to effec- any person who has a physical or men- tuate section 119 of the Rehabilitation, tal impairment that substantially lim- Comprehensive Services, and Develop- its one or more major life activities, mental Disabilities Amendments of has a record of such an impairment, or 1978, which amended section 504 of the is regarded as having such an impair- Rehabilitation Act of 1973, to prohibit ment. As used in this definition, the discrimination on the basis of dis- phrase: ability in programs or activities con- (1) Physical or mental impairment ducted by Executive agencies or the includes— United States Postal Service. (i) Any physiological disorder or condition, cosmetic disfigurement, or ana- § 707.2 Application. tomical loss affecting one or more of This part applies to all programs and the following body systems: Neuro- activities, including employment, con- logical, musculoskeletal; special sense ducted by the Agency. organs; respiratory, including speech organs; cardiovascular; reproductive; § 707.3 Definitions. digestive; genitourinary; hemic and For the purposes of this part, the lymphatic; skin; and endocrine; or term— (ii) Any mental or psychological dis- (a) Agency means the U.S. Commis- order, such as mental retardation, or- sion on Civil Rights and its State Advi- ganic brain syndrome, emotional or sory Committees. mental illness, and specific learning (b) Auxiliary aids means services or disabilities. The term physical or men- devices that enable persons with im- tal impairment includes, but is not paired sensory, manual, or speaking limited to, such diseases and condi- skills to have an equal opportunity to tions as orthopedic, visual, speech and participate in, and enjoy the benefits hearing impairments, cerebral palsy, of, programs or activities conducted by epilepsy, muscular dystrophy, multiple the Agency. For example, auxiliary sclerosis, cancer, heart disease, diabe- aids useful for persons with impaired tes, mental retardation, emotional ill- vision include readers, Braille mate- ness, drug addiction, and alcoholism.

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(2) Major life activities includes func- ate any programs of Federal financial tions such as caring for one’s self, per- assistance to other entities. forming manual tasks, walking, seeing, hearing, speaking, breathing, learning, § 707.4 Self-evaluation and remedial and working. measures. (3) Has a record of such an impair- (a) The Agency shall, before Feb- ment means has a history of, or has ruary 16, 1991 evaluate its current poli- been misclassified as having, a mental cies and practices, and the effects or physical impairment that substan- thereof, that do not or may not meet tially limits one or more major life ac- the requirements of this part, and, to tivities. the extent modification of any such (4) Is regarded as having an impair- policies and practices is required, the ment means— (i) Has a physical or mental impair- Agency shall proceed to make the nec- ment that does not substantially limit essary modifications. major life activities but is treated by (b) The Agency shall provide an op- the Agency as constituting such a limi- portunity to interested persons, includ- tation; ing individuals with disabilities and or- (ii) Has a physical or mental impair- ganizations representing individuals ment that substantially limits major with disabilities, to participate in the life activities only as a result of the at- self-evaluation process by submitting titudes of others toward such impair- comments (both oral and written). ment; or (c) The Agency shall, for at least (iii) Has none of the impairments de- three years following completion of the fined in paragraph (e)(1) of this defini- evaluation required under paragraph tion but is treated by the Agency as (a) of this section, maintain on file and having such an impairment. make available for public inspection: (f) Qualified individual with disabilities (1) A description of areas examined means— and any problems identified; and (1) With respect to any Agency pro- (2) A description of any modifications gram or activity under which a person made. is required to perform services or to achieve a level of accomplishment, an § 707.5 Notice. individual with disabilities who meets the essential eligibility requirements (a) The Agency shall make available and who can achieve the purpose of the to all employees, applicants, and other program or activity without modifica- interested persons, as appropriate, in- tions in the program or activity that formation regarding the provisions of the Agency can demonstrate would re- this part and its applicability to the sult in a fundamental alteration in its programs or activities conducted by nature; and the Agency, and such information shall (2) With respect to employment, an be made available to the extent the individual with disabilities who meets Staff Director finds necessary to ap- the definition set forth in 29 CFR prise such persons of the protections 1614.203, which is made applicable to against discrimination assured them this part by § 707.7. by section 504 and this part. (3) With respect to any other Agency (b) The Agency shall ensure that in- program or activity, an individual with terested persons, including persons disabilities who meets the essential eli- with impaired vision or hearing, can gibility requirements for participation obtain information as to the existence in, or receipt of benefits from, that pro- and location of accessible services, ac- gram or activity. (g) Section 504 means section 504 of tivities, and facilities. the Rehabilitation Act of 1973 (Public (c) The Agency shall take appro- Law 93–112, 87 Stat. 394 (29 U.S.C. 794), priate steps to provide individuals with as amended through 1998. As used in disabilities with information regarding this part, section 504 applies only to their section 504 rights under the Agen- programs or activities conducted by cy’s programs or activities. the Agency. The Agency does not oper-

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§ 707.6 General prohibitions against ments, utilize criteria or methods of discrimination. administration the purpose or effect of (a) No qualified individual with dis- which would— abilities shall, on the basis of dis- (i) Subject qualified individuals with ability, be excluded from participation disabilities to discrimination on the in, be denied the benefits of, or other- basis of disability; or wise be subjected to discrimination (ii) Defeat or substantially impair ac- under any program or activity con- complishment of the objectives of a ducted by the Agency. program or activity with respect to in- (b)(1) The Agency, in providing any dividuals with disabilities. aid, benefit, or service, shall not, di- (4) The Agency shall not in deter- rectly or through contractual, licens- mining the site or location of a facility ing, or other arrangements, on the or activity make selections the purpose basis of disability— or effect of which would— (i) Deny a qualified individual with (i) Exclude individuals with disabil- disabilities the opportunity to partici- ities from, deny them the benefits of, pate in or benefit from the aid, ben- or otherwise subject them to discrimi- efit(s), or service(s); nation under any program or activity (ii) Afford a qualified individual with conducted by the Agency; or disabilities an opportunity to partici- (ii) Defeat or substantially impair pate in or benefit from the aid, ben- the accomplishment of the objectives efit(s), or service(s) that are not equal of a program or activity with respect to that afforded others; to individuals with disabilities. (iii) Provide a qualified individual (5) The Agency, in the selection of with disabilities with an aid, benefit(s), procurement contractors, shall not use or service(s) that are not as effective in criteria that subject qualified individ- affording equal opportunity to obtain uals with disabilities to discrimination the same result, to gain the same ben- on the basis of disability. efit, or to reach the same level of (c) The exclusion of non-disabled per- achievement as that provided to oth- sons from the benefits of a program ers; limited by Federal statute or Execu- (iv) Provide different or separate aid, tive order to individuals with disabil- benefits, or services to individuals with ities or the exclusion of a specific class disabilities or to any class of individ- of individuals with disabilities from a uals with disabilities than are provided program limited by Federal statute or to others unless such action is nec- Executive order to a different class of essary to provide qualified individuals individuals with disabilities is not pro- with disabilities with aid, benefits, or hibited by this part. services that are as effective as those provided to others: (d) The Agency shall administer pro- (v) Deny a qualified individual with grams and activities in the most inte- disabilities the opportunity to partici- grated setting appropriate to the needs pate as a member of planning or advi- of qualified individuals with disabil- sory boards or committees; or ities. (vi) Otherwise limit a qualified individual with disabilities in the enjoy- § 707.7 Employment. ment of any right, privilege, advan- No qualified individual with disabil- tage, or opportunity enjoyed by others ities shall, on the basis of disability, be receiving the aid, benefit(s), or serv- subjected to discrimination in employ- ice(s). ment under any program or activity (2) The Agency shall not deny a conducted by the Agency. The defini- qualified individual with disabilities tions, requirements, and procedures of the opportunity to participate in pro- section 501 of the Rehabilitation Act of grams or activities that are not sepa- 1973 (29 U.S.C. 791), as established by rate or different, despite the existence the Equal Employment Opportunity of permissibly separate or different Commission in 29 CFR 1614.101 through programs or activities. 1614.110, shall apply to employment in (3) The Agency shall not, directly or programs or activities conducted by through contractual or other arrange- the Agency.

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§ 707.8 Physical access. benefits and services of the program or activity. (a) Discrimination prohibited. Except (3) Methods. (i) The Agency may com- as otherwise provided in this section, ply with the requirements of this sec- no qualified individual with disabilities tion through such means as redesign of shall, because the Agency’s facilities equipment, reassignment of services to are inaccessible to or unusable by indi- accessible buildings, assignment of viduals with disabilities, be denied the aides to individuals with disabilities, benefits of, be excluded from participa- delivery of services at alternative action in, or otherwise be subjected to cessible sites, alteration of existing fa- discrimination under any program or cilities and construction of new facili- activity conducted by the Agency. ties, use of accessible vehicles, or any (b) Existing facilities-program access— other methods that result in making (1) Existing facilities defined. For the its program or activities readily acces- purpose of this section, existing facili- sible to and usable by individuals with ties means those facilities owned, disabilities. leased or used through some other ar- (ii) The Agency is not required to rangement by the Agency on March 28, make structural changes in existing fa- 1990. cilities where other methods are effec- (2) General. The Agency shall operate tive in achieving compliance with each program or activity conducted in paragraph (b)(2) of this section. The an existing facility so that the pro- Agency, in making alterations to exist- gram or activity, when viewed in its ing buildings to achieve program acces- entirety, is readily accessible to and sibility, shall meet accessibility re- usable by individuals with disabilities. quirements imposed by the Architec- This paragraph does not— tural Barriers Act of 1968, 42 U.S.C. 4151 (i) Necessarily require the Agency to through 4157, make each of its existing facilities ac- (iii) In choosing among available cessible to and usable by individuals methods for meeting the requirements with disabilities of this section, the Agency shall give (ii) Require the Agency to take any priority to those methods that offer action that it can demonstrate would programs and activities to qualified in- result in a fundamental alteration in dividuals with disabilities in the most the nature of a program or activity or integrated setting appropriate to the in undue financial and administrative needs of qualified individuals with dis- burdens. In those circumstances where abilities. Agency personnel believe that the pro- (4) Time period for compliance. The posed action would fundamentally Agency shall comply with the obliga- alter the program or activity or would tions established under this section be- result in undue financial and adminis- fore April 17, 1990, except that where trative burdens, the Agency has the structural changes in facilities are un- burden of proving that compliance with dertaken, such changes shall be made this paragraph would result in such al- before February 16, 1993, but in any teration or burdens. The decision that event as expeditiously as possible. compliance would result in such alter- (5) Transition plan. In the event that ation or burdens must be made by the structural changes to facilities will be Staff Director or his or her designee undertaken to achieve program acces- after considering all Agency resources sibility, the Agency shall develop, be- available for use in the funding and op- fore August 16, 1990, a transition plan eration of the conducted program or setting forth the steps necessary to activity, and must be accompanied by complete such changes. The Agency a written statement of the reasons for shall provide an opportunity to inter- reaching that conclusion. If an action ested persons, including individuals would result in such an alteration or with disabilities and organizations rep- such burdens, the Agency shall take resenting individuals with disabilities, any other action that would not result to participate in the development of in such an alteration or such burdens the transition plan by submitting com- but would nevertheless ensure that in- ments (both oral and written). A copy dividuals with disabilities receive the of the transition plan shall be made

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available for public inspection. The action that would not result in such an plan shall, at a minimum— alteration or such burdens but would (i) Identify physical obstacles in the nevertheless ensure that individuals Agency’s facilities that limit the ac- with disabilities receive the benefits cessibility of its programs or activities and services of the program or activity. to individuals with disabilities; (d) New construction and alterations. (ii) Describe in detail the methods Each building or part of a building that that will be used to make the facilities is constructed or altered by, on behalf accessible; of, or for the use of the Agency shall be (iii) Specify the schedule for taking designed, constructed, or altered so as the steps necessary to achieve compli- to be readily accessible to and usable ance with this paragraph and, if the by individuals with disabilities in ac- time period of the transition plan is cordance with the requirements im- longer than 1 year, identify steps that posed by the Architectural Barriers will be taken during each year of the Act of 1968, 42 U.S.C. 4151 through 4157. transition period; and (iv) Indicate the official response for § 707.9 Access to communications. implementation of the plan. (a) Discrimination prohibited. Except (6) The Agency shall provide signs at as otherwise provided in this section, a primary entrance to each of its inac- no qualified individual with disabilities cessible facilities, directing users to a shall, because the Agency’s commu- location at which they can obtain in- nications are inaccessible to or unus- formation about accessible facilities. able by individuals with disabilities, be The international symbol for accessi- denied the benefits of, be excluded from bility shall be used at each primary en- participation in, or otherwise be sub- trance of an accessible facility. jected to discrimination under any pro- (c) New purchases, leases, or other ar- gram or activity conducted by the rangements. (1) Any building or facility Agency. acquired after March 28, 1990, whether (b) The Agency shall take appro- by purchase, lease (other than lease re- priate steps to ensure effective commu- newal), or any other arrangement, nication with applicants, participants, shall be readily accessible to and usa- personnel of other Federal entities, and ble by individuals with disabilities. members of the public. (2) Nothing in this paragraph re- (c) Specific requirements regarding quires the Agency to take any action oral communications—(1) Tele- that it can demonstrate would result in communications devices for deaf per- a fundamental alteration in the nature sons. (i) The Agency headquarters and of a program or activity or in undue fi- each regional office shall maintain and nancial and administrative burdens. In reliably answer at least one tele- those circumstances where Agency per- communications device for deaf personnel believe that the proposed action sons (TDD) or equally effective tele- would fundamentally alter the program communications device. or activity or would result in undue fi- (ii) The Agency shall ensure that all nancial and administrative burdens, Agency letterhead, forms, and other the Agency has the burden of proving documents listing any Agency tele- that compliance with this paragraph phone number list the appropriate TDD would result in such alteration or bur- numbers. dens. The decision that compliance (2) Interpreter service. (i) The Agency would result in such alteration or bur- shall establish a reliable system for the dens must be made by the Staff Direc- provision of qualified interpreters to tor or his or her designee after consid- individuals with disabilities for Agency ering all Agency resources available programs or activities. This provision for use in the funding and operation of does not require the Agency to have an the conducted program or activity, and interpreter on staff, but does require must be accompanied by a written the Agency to be able to provide a statement of the reasons for reaching qualified interpreter on reasonable no- that conclusion. If an action would re- tice. sult in such an alteration or such bur- (ii) Notice of the availability of in- dens, the Agency shall take any other terpreter service shall be included in

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all announcements notifying the public burdens, the Agency shall take any of Agency activities to which the pub- other action that would not result in lic is invited or which it is permitted such an alteration or such burdens but to attend, including but not limited to would nevertheless ensure that, to the the Commission’s meetings, consulta- maximum extent possible, individuals tions, hearings, press conferences, and with disabilities receive the benefits State Advisory Committee conferences and services of the program or activity. and meetings. This notice shall designate the Agency official(s) and the § 707.10 Auxiliary aids. address, telephone and TDD number to (a) The Agency shall furnish appro- call to request interpreter services. priate auxiliary aids where necessary (d) Specific requirements for printed to afford an individual with disabilities communications. (1) The Agency shall an equal opportunity to participate in, establish a system to provide to indi- and enjoy the benefits of, a program or viduals with disabilities appropriate activity conducted by the Agency. reader or taping service for all Agency (b) In determining what type of aux- publications that are available to the iliary aid is necessary, the Agency public. This provision does not require shall give primary consideration to the the Agency to have a reader or taper requests of the individual with disabil- on staff, but does require the Agency to ities. be able to provide appropriate reader or (c) The Agency need not provide indi- taping service within a reasonable time vidually prescribed devices, readers for and on reasonable notice. The Agency personal use or study, or other devices shall effectively notify qualified indi- of a personal nature. viduals with disabilities of the availability of reader or taping services. § 707.11 Eliminating discriminatory (2) Notice of the availability of read- qualifications and selection cri- er or taping service shall be included in teria. all publications that are available to The Agency shall not make use of the public. This notice shall designate any qualification standard, eligibility the Agency official(s) and the address, requirement, or selection criterion telephone, and TDD number to call to that excludes particular classes of indi- request interpreter services. viduals with disabilities from an Agen- (e) Nothing in this section or § 707.10 cy program or activity merely because requires the Agency to take any action the persons are disabled, without re- that it can demonstrate would result in gard to an individual’s actual ability to a fundamental alteration in the nature participate. An irrebuttable presump- of a program or activity or in undue fi- tion of inability to participate based nancial and administrative burdens. In upon a disability shall be permissible those circumstances where Agency per- only if the condition would, in all in- sonnel believe that the proposed action stances, prevent an individual from would fundamentally alter the program meeting the essential eligibility re- or activity or would result in undue fi- quirements for participating in, or re- nancial and administrative burdens, ceiving the benefits of, the particular the Agency has the burden of proving program or activity. that compliance with this section or § 707.10 would result in such alteration § 707.12 Compliance procedures. or burdens. The decision that compli- (a) Except as provided in paragraph ance would result in such alteration or (b) of this section, this section applies burdens must be made by the Staff Di- to all allegations of discrimination on rector or his or her designee after con- the basis of disability in programs or sidering all Agency resources available activities conducted by the Agency. for use in the funding and operation of (b) The Agency shall process com- the conducted program or activity and plaints alleging violations of section must be accompanied by a written 504 with respect to employment accord- statement of the reasons for reaching ing to the procedures established in 29 that conclusion. If an action required U.S.C. 791 by the Equal Employment to comply with this paragraph would Opportunity Commission in 29 CFR result in such an alteration or such part 1613 pursuant to section 501 of the

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Rehabilitation Act of 1973 (29 U.S.C. tion may be extended for an individual 791). case when the Staff Director deter- (c) Responsibility for implementa- mines that there is good cause, based tion and operation of this section shall on the particular circumstances of that be vested in the Office of General Coun- case, for the extension. sel. (l) The Agency may delegate its au- (d) The Agency shall accept and in- thority for conducting complaint investigate all complete complaints for vestigations to other Federal agencies; which it has jurisdiction. All complete however, the authority for making the complaints must be filed within 180 final determination may not be dele- days of the alleged act of discrimina- gated to another Agency. tion. The Agency may extend this time period for good cause. PART 708—COLLECTION BY SAL- (e) If the Agency receives a com- ARY OFFSET FROM INDEBTED plaint over which it does not have jurisdiction, it shall promptly notify the CURRENT AND FORMER EMPLOY- complainant and shall make reason- EES able efforts to refer the complaint to the appropriate Government entity. Sec. (f) The Agency shall notify the Archi- 708.1 Purpose and scope. 708.2 Policy. tectural and Transportation Barriers 708.3 Definitions. Compliance Board upon receipt of any 708.4 Applicability. complaint alleging that a building or 708.5 Notice. facility that is subject to the Architec- 708.6 Petitions for hearing. tural Barriers Act of 1968, 42 U.S.C. 4151 708.7 Hearing procedures. through 4157, is not readily accessible 708.8 Written decision. to and usable by individuals with dis- 708.9 Coordinating offset with another Fed- abilities. eral agency. (g) Within 180 days of the receipt of a 708.10 Procedures for salary offset. complete complaint for which it has ju- 708.11 Refunds. 708.12 Statute of limitations. risdiction, the Agency shall notify the 708.13 Non-waiver of rights by payments. complainant of the results of the inves- 708.14 Interest, penalties, and administra- tigation in a letter containing— tive costs. (1) Findings of fact and conclusions of law; AUTHORITY: 5 U.S.C. 5514. (2) A description of a remedy for each SOURCE: 67 FR 70482, Nov. 22, 2002, unless violation found; and otherwise noted. (3) A notice of the right to appeal. (h) Appeals of the findings of fact and § 708.1 Purpose and scope. conclusions of law or remedies must be (a) The regulations in this part pro- filed by the complainant within 90 days vide the procedure pursuant to 5 U.S.C. of receipt from the Agency of the letter 5514 and 5 CFR 550.1101 through 550.1110 required by paragraph (g) of this sec- for the collection by administrative tion. The Staff Director may extend offset of a Federal employee’s salary this time for good cause. without his or her consent to satisfy (i) Timely appeals shall be accepted certain debts owed to the Federal gov- and processed by the Staff Director or ernment. This procedure applies to all the Staff Director’s designee. Federal employees who owe debts to (j) The Agency shall notify the com- the U.S. Commission on Civil Rights plainant in writing of the results of the (Commission). This provision does not appeal within 60 days of the receipt of apply when the employee consents to the request. If the head of the Agency recovery from his or her current pay determines that additional information account. is needed from the complainant, it (b) This procedure does not apply to shall have 60 days from the date it re- debts or claims arising under: ceives the additional information to (1) The Internal Revenue Code (26 make its determination on the appeal. U.S.C. 1 et seq.); (k) The time limits cited in para- (2) The Social Security Act (42 U.S.C. graphs (d), (g), (h), and (j) of this sec- 301 et seq.);

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(3) The tariff laws of the United (5) Other independent establishments States; or that are entities of the Federal Govern- (4) To any case where collection of a ment. debt by salary offset is explicitly pro- (b) Creditor agency means the agency vided for or prohibited by another stat- to which the debt is owed. ute (e.g., travel advances in 5 U.S.C. (c) Debt means an amount owed to 5705 and employee training expenses in the United States from sources, which 5 U.S.C. 4108). include loans insured or guaranteed by (c) The Commission shall except from the United States and amounts due the salary offset provisions any adjust- United States from fees, leases, rents, ments to pay arising out of an employ- royalties, services, sales of real or per- ee’s election of coverage or a change in sonal property, overpayments, pen- coverage under a Federal benefits pro- alties, damages, interest, fines and for- grams requiring periodic payroll deduc- feitures (except those arising under the tions from pay, if the amount to be re- Uniform Code of Military Justice), and covered was accumulated over four pay all other similar sources. periods or less. (d) Deputy Staff Director means the (d) These procedures do not preclude Deputy Staff Director of the Commis- an employee or former employee from sion or in his or her absence, or in the requesting a waiver of a salary over- event of a vacancy in the position or payment under 5 U.S.C. 5584 or 10 its elimination, the Director of Human U.S.C. 2774 or in any way questioning Resources. the amount or validity of the debt by submitting a subsequent claim to the (e) Disposable pay means that part of General Accounting Office (GAO) in ac- current basic pay, special pay, incen- cordance with procedures prescribed by tive pay, retired pay, retainer pay, or the GAO. In addition, this procedure in the case of an employee not entitled does not preclude an employee from re- to basic pay, other authorized pay requesting a waiver pursuant to other maining from an employee’s Federal statutory provisions applicable to the pay after required deductions for social particular debt being collected. security, Federal, state or local income tax, health insurance premiums, retire- § 708.2 Policy. ment contributions, life insurance pre- It is the policy of the Commission to miums, Federal employment taxes, and apply the procedures in the regulations any other deductions that are required in this part uniformly and consistently to be withheld by law. in the collection of internal debts from (f) Employee means a current em- its current and former employees. ployee of an agency, including a current member of the Armed Forces or a § 708.3 Definitions. Reserve of the Armed Forces (Re- For the purposes of the regulations serves). in this part the following definitions (g) Former employee means an em- apply: ployee who is no longer employed with (a) Agency means: the Commission but is currently em- (1) An Executive agency as defined in ployed with another Federal agency. 5 U.S.C. 105, including the U.S. Postal (h) FCCS means the Federal Claims Service and the U.S. Postal Rate Com- Collection Standards jointly published mission; by the Department of Justice and the (2) A military department as defined General Accounting Office at 4 CFR in 5 U.S.C. 102; chapter I. (3) An agency or court in the judicial (i) Hearing official means an indi- branch, including a court as defined in vidual responsible for conducting any 28 U.S.C. 610, the District Court for the hearing with respect to the existence Northern Mariana Islands, and the Ju- or amount of a debt claimed, and who dicial panel on Multidistrict Litiga- renders a decision on the basis of such tion; hearing. A hearing official may not be (4) An agency of the legislative under the supervision or control of the branch, including the U.S. Senate and Deputy Staff Director of the Commis- the U.S. House of Representatives; and sion.

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(j) Paying agency means the agency (1) A statement that the debt is owed employing the individual who owes the and an explanation of its origin, na- debt and is responsible for authorizing ture, and amount; the payment of his or her current pay. (2) The agency’s intention to collect (k) Pay interval will normally be the the debt by deducting from the employ- biweekly pay period but may be some ee’s current disposable pay account; regularly recurring period of time in (3) The amount, frequency, proposed which pay is received. beginning date, and duration of the in- (l) Retainer pay means the pay above tended deduction(s); the maximum rate of an employee’s (4) An explanation of the require- grade that he or she is allowed to keep ments concerning the current interest in special situations rather than hav- rate, penalties, and administrative ing the employee’s rate of basic pay re- costs, including a statement that such duced. charges will be assessed unless excused (m) Salary offset means an adminis- in accordance with the Federal Claims trative offset to collect a debt under 5 Collections Standards (4 CFR chapter U.S.C. 5514 by deduction(s) at one or I); more officially established pay inter- (5) The employee’s right to inspect, vals from the current pay account of request, or receive a copy of the gov- an employee without his or her con- ernment records relating to the debt; sent. (6) The employee’s right to enter into (n) Waiver means the cancellation, a written repayment schedule for the remission, forgiveness, or non-recovery voluntary repayment of the debt in of a debt allegedly owed by an em- lieu of offset; ployee to an agency as permitted or re- (7) The right to a hearing conducted quired by 5 U.S.C. 5584, 10 U.S.C. 2774, by an impartial hearing official (either or 5 U.S.C. 8346(b), or any other law. an administrative law judge or an official who is not under the control of the § 708.4 Applicability. Commission); The regulations in this part are to be (8) The method and time period for followed when: petitioning for a hearing; (a) The Commission is owed a debt by (9) A statement that the timely filing an individual who is a current em- (i.e., within 15 calendar days) of a peti- ployee of the Commission; or tion for a hearing will stay the com- (b) The Commission is owed a debt by mencement of collection proceedings; an individual currently employed by (10) A statement that a final decision another Federal agency; or on the hearing (if one is requested) will (c) The Commission employs an indi- be issued at the earliest practical date vidual who owes a debt to another Fed- but not later than 60 days after the fil- eral agency. ing of the petition requesting the hearing unless the employee requests and § 708.5 Notice. the hearing official grants a delay in (a) Deductions shall not be made un- the proceedings. less the employee who owes the debt (11) A statement that an employee has been provided with written notice knowingly submitting false or frivo- signed by the Deputy Staff Director or lous statements (5 CFR 550.1101), rep- in his or her absence, or in the event of resentations, or evidence may subject a vacancy in that position or its elimi- the employee to disciplinary proce- nation, the Director of Human Re- dures under 5 U.S.C. 7501 et seq. and 5 sources (or the U.S. Department of Ag- CFR part 752; penalties under the False riculture, National Finance Center act- Claims Act, 31 U.S.C. 3729–3731; or ing on behalf of the Commission) of the criminal penalties under 18 U.S.C. 286, debt at least 30 days before salary off- 287, 1001, and 1002; set commences. (12) A statement of other rights and (b) The written notice from the Dep- remedies available to the employee uty Staff Director, acting on behalf of under statutes or regulations gov- the Commission, as the creditor agen- erning the program for which the col- cy, shall contain: lection is being made;

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(13) A statement that an employee time, date, and location for the hear- will be promptly refunded any amount ing. paid or deducted for a debt that is later (b) The hearing shall be conducted by waived or found not valid unless there an impartial hearing official. are applicable contractual or statutory (c) The Commission, as the creditor provisions to the contrary; and agency, will have the burden of proving (14) The name, address, and phone the existence of the debt. number of an official who can be con- (d) The employee requesting the tacted concerning the indebtedness. hearing shall have the burden of proof to demonstrate that the existence or § 708.6 Petitions for hearing. amount of the debt is in error. (a) Except as provided in paragraph § 708.8 Written decision. (d) of this section, an employee who wants a hearing must file a written pe- (a) The hearing official shall issue a tition for a hearing to be received by written opinion no later than sixty (60) the Deputy Staff Director not later days after the filing of the petition for than 15 calendar days from the date of hearing; or no longer than sixty (60) receipt of the Notice of Offset. The pe- days from the proceedings if an exten- tition must state why the employee be- sion has been granted pursuant to lieves the determination of the Com- § 708.5(b)(10). mission concerning the existence or (b) The written opinion will include: amount of the debt is in error. A statement of the facts presented to (b) The petition must be signed by demonstrate the nature and origin of the employee and should identify and the alleged debt; the hearing official’s explain with reasonable specificity and analysis, findings, and conclusions; the brevity the facts, evidence, and wit- amount and validity of the debt; and, if nesses that the employee believes sup- applicable, the repayment schedule. port his or her position. § 708.9 Coordinating offset with an- (c) If the employee objects to the per- other Federal agency. centage of disposable pay to be de- (a) The Commission is the creditor ducted from each check, the petition agency when the Deputy Staff Director should state the objection and the rea- determines that an employee of an- sons for it. other Federal agency owes a delinquent (d) If the employee files a petition for debt to the Commission. The Deputy a hearing later than the 15 calendar Staff Director shall, as appropriate: days from the date of receipt of the No- (1) Arrange for a hearing upon the tice of Offset, as described in paragraph proper petitioning by the employee; (a) of this section, the hearing official (2) Certify in writing that the em- may accept the request if the employee ployee of the paying agency owes the can show that there was good cause debt, the amount, and basis of the debt, (such as due to circumstances beyond the date on which payment is due, the his or her control or because he or she date the Government’s right to collect was not informed or aware of the time the debt first accrued, and that the limit) for failing to meet the deadline Commission’s regulations for salary date. offset have been approved by the Office (e) An employee will not be granted a of Personnel Management; hearing and will have his or her dispos- (3) If the collection must be made in able pay offset in accordance with the installments, the Commission, as the Deputy Staff Director’s offset schedule creditor agency, will advise the paying if he or she fails to show good cause agency of the amount or percentage of why he or she failed to file the petition disposable pay to be collected in each for a hearing within the stated time installment and the number and the limits. commencement date of the installments; § 708.7 Hearing procedures. (4) Advise the paying agency of the (a) If an employee timely files a peti- actions taken under 5 U.S.C. 5514(a) tion for a hearing under § 708.6, the and provide the dates on which action Deputy Staff Director shall select the was taken, unless the employee has

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consented to salary offset in writing or pletely, the Commission must certify signed a statement acknowledging re- the total amount collected to the cred- ceipt of procedures required by law. itor agency with notice of the employ- The written consent or acknowledge- ee’s transfer. One copy of this certifi- ment must be sent to the paying agen- cation must be furnished to the em- cy; ployee. The creditor agency will sub- (5) If the employee is in the process mit a properly certified claim to the of separating, the Commission will sub- new paying agency before collection mit its debt claim to the paying agency can be resumed. as provided in this part. The paying (5) When the Commission, as a paying agency must certify any amounts al- agency, receives an incomplete debt ready collected, notify the employee, claim from a creditor agency, it must and send a copy of the certification of return the debt claim with a notice the monies already collected and no- that procedures under 5 U.S.C. 5514 and tice of the employee’s separation to the this subpart must be provided and a Commission. If the paying agency is properly certified debt claim received aware that the employee is entitled to before action will be taken to collect Civil Service or Foreign Service Re- from the employee’s current pay ac- tirement and Disability Fund or simi- count. lar payments, it must provide written notification to the agency has been § 708.10 Procedures for salary offset. rendered in favor of the Commission. (a) Deductions to liquidate an em- (6) If the employee has already sepa- ployee’s debt will be by the method and rated and all payments due from the in the amount stated in the Assistant paying agency have been paid, the As- Staff Director for Management’s writ- sistant Staff Director for Management ten notice of intent to collect from the may request, unless otherwise prohib- employee’s current pay, unless alter- ited, that money payable to the em- native arrangements for repayment are ployee from the Civil Service Retire- made. ment and Disability Fund or other (b) If the employee filed a petition similar funds be collected by adminis- for a hearing with the Assistant Staff trative offset. The Commission will Director for Management before the provide the agency responsible for expiration of the period provided, then these payments with a properly cer- deductions will begin after the hearing tified claim. official has provided the employee with (b) The Commission is the paying a hearing, and a final written decision agency when an employee of this agen- has been rendered in favor of the Com- cy owes a debt to another Federal mission. agency that is the creditor agency. (c) A debt will be collected in a lump- (1) Upon receipt of a properly cer- sum if possible. tified debt claim from a creditor agen- (d) If an employee is financially un- cy, deductions will be scheduled to able to pay in one lump sum or the begin at the next established pay inter- amount of the debt exceeds 15 percent val. of disposable pay for an officially es- (2) The Commission must give the tablished pay interval, collection must employee written notice that it has re- be made in installments. The size of ceived a certified debt claim from a the installment deduction(s) will bear creditor agency (including the a reasonable relationship to the size of amount), and the date that deductions the debt and the deduction will be es- will be scheduled to begin and the tablished for a period not greater than amount of the deduction. the anticipated period of employment. (3) The Commission shall not review The deduction for the pay intervals for the merits of the creditor agency’s de- any period must not exceed 15% of dis- termination of the amount of the cer- posable pay unless the employee has tified claim or of its validity. agreed in writing to a deduction of a (4) If the employee transfers to an- greater amount. If possible, the install- other paying agency after the creditor ment payment will be sufficient in size agency has submitted its debt claim and frequency to liquidate the debt in but before the debt is collected com- no more than three years.

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(e) Installment payments may be less this section, the Commission will re- than 15 percent of disposable pay if the fund the amount to the current or Assistant Staff Director for Manage- former employee. ment determines that the 15 percent (c) Unless required by law, refunds deduction would create an extreme fi- under this section shall not bear inter- nancial hardship. est nor shall liability be conferred to (f) Installment payments of less than the Commission for debt or refunds $25.00 per pay period or $50.00 per owed by other creditor agencies. month, will only be accepted in the most unusual circumstances. § 708.12 Statute of limitations. (g) Unliquidated debts may be offset by the paying agency under 31 U.S.C. If a debt has been outstanding for 3716 against any financial payment due more than 10 years after the agency’s to a separating employee including but right to collect the debt first accrued, not limited to final salary payment, re- the agency may not collect by salary tired pay, or lump sum leave, etc. as of offset unless facts material to the gov- the date of separation to the extent ernment’s right to collect were not necessary to liquidate the debt. known and could not reasonably have (h) If the debt cannot be liquidated been known by the official or officials by offset from any final payment due a who were charged with the responsi- separated employee it may be recov- bility for discovery and collection of ered by the offset in accordance with 31 such debts. U.S.C. 3716 from any later payments due the former employee from the § 708.13 Non-waiver of rights by pay- United States. ments. An employee’s involuntary payment § 708.11 Refunds. of all or any part of a debt collected (a) The Commission will refund under the regulations in this part will promptly any amounts deducted to sat- not be construed as a waiver of any isfy debts owned to the Commission rights that employee may have under 5 when the debt is waived, found not U.S.C. 5514 or any other provision of owed to the Commission, or when di- contract or law unless there are statu- rected by an administrative or judicial tory or contractual provisions to the order; or the creditor agency will contrary. promptly return any amounts deducted and forwarded by the Commission to § 708.14 Interest, penalties, and admin- satisfy debts owed to the creditor agen- istrative costs. cy when the debt is waived, found not owed, or when directed by an adminis- Charges may be assessed for interest, trative or judicial order. penalties, and administrative costs. (b) Upon receipt of monies returned in accordance with paragraph (a) of PARTS 709–799 [RESERVED]

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Part Page 800 Multi-State Plan Program ...... 287 801–899 [Reserved]

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Health Care and Education Reconcili- ance coverage includes group health ination Act of 2010 (Pub. L. 111–152). surance coverage, individual health in- Applicant means an issuer or group of surance coverage, and short-term, lim- issuers that has submitted an applica- ited duration insurance. tion to OPM to be considered for par- Health insurance issuer or issuer means ticipation in the Multi-State Plan Pro- an insurance company, insurance serv- gram. ice, or insurance organization (includ- Benefit plan material or information ing a health maintenance organization) means explanations or descriptions, that is required to be licensed to en- whether printed or electronic, that de- gage in the business of insurance in a scribe a health insurance issuer’s prod- State and that is subject to State law ucts. The term does not include a pol- that regulates insurance (within the icy or contract for health insurance meaning of section 514(b)(2) of the Em- coverage. ployee Retirement Income Security Cost sharing has the meaning given Act (ERISA)). This term does not in- that term in 45 CFR 155.20. clude a group health plan as defined in Director means the Director of the 45 CFR 146.145(a). United States Office of Personnel Man- HHS means the United States De- agement. partment of Health and Human Serv- EHB-benchmark plan has the meaning ices. given that term in 45 CFR 156.20. Level of coverage means one of four Exchange means a governmental standardized actuarial values of plan agency or non-profit entity that meets coverage as defined by section the applicable requirements of 45 CFR 1302(d)(1) of the Affordable Care Act. part 155 and makes qualified health Licensure means the authorization plans (QHPs) and MSP options avail- obtained from the appropriate State of- able to qualified individuals and quali- ficial or regulatory authority to offer fied employers. Unless otherwise iden- health insurance coverage in the State. tified, this term refers to State Ex- Multi-State Plan option or MSP option changes, regional Exchanges, sub- means a discrete pairing of a package sidiary Exchanges, and a Federally-fa- of benefits with particular cost sharing cilitated Exchange. (which does not include premium rates Federal Employees Health Benefits Pro- or premium rate quotes) that is offered gram or FEHB Program means the pursuant to a contract with OPM pur- health benefits program administered suant to section 1334 of the Affordable by the United States Office of Per- Care Act and meets the requirements sonnel Management pursuant to chap- of 45 CFR part 800. ter 89 of title 5, United States Code. Multi-State Plan Program or MSP Pro- Group of issuers means: gram means the program administered (1) A group of health insurance by OPM pursuant to section 1334 of the issuers that are affiliated either by Affordable Care Act. common ownership and control or by Multi-State Plan Program issuer or common use of a nationally licensed MSP issuer means a health insurance service mark (as defined in this sec- issuer or group of issuers (as defined in tion); or this section) that has a contract with (2) An affiliation of health insurance OPM to offer health plans pursuant to issuers and an entity that is not an section 1334 of the Affordable Care Act issuer but that owns a nationally li- and meets the requirements of this censed service mark (as defined in this part. section). Nationally licensed service mark means Health insurance coverage means bene- a word, name, symbol, or device, or any fits consisting of medical care (pro- combination thereof, that an issuer or vided directly, through insurance or re- group of issuers uses consistently na- imbursement, or otherwise) under any tionwide to identify itself. hospital or medical service policy or Non-profit entity means: certificate, hospital or medical service (1) An organization that is incor- plan contract, or health maintenance porated under State law as a non-profit organization contract offered by a entity and licensed under State law as health insurance issuer. Health insur- a health insurance issuer; or

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(2) A group of health insurance Standard plan has the meaning given issuers licensed under State law, a sub- that term in 45 CFR 156.400. stantial portion of which are incor- State means each of the 50 States or porated under State law as non-profit the District of Columbia. entities. State Insurance Commissioner means OPM means the United States Office the commissioner or other chief insur- of Personnel Management. ance regulatory official of a State. Percentage of total allowed cost of bene- State-level issuer means a health in- fits has the meaning given that term in surance issuer designated by the Multi- 45 CFR 156.20. State Plan (MSP) issuer to offer an Plan year means a consecutive 12- MSP option or MSP options. The month period during which a health State-level issuer may offer health in- plan provides coverage for health bene- surance coverage through an MSP op- fits. A plan year may be a calendar tion in all or part of one or more year or otherwise. States. Prompt payment means a requirement imposed on a health insurance issuer to Subpart B—Multi-State Plan pay a provider or enrollee for a claimed benefit or service within a defined time Program Issuer Requirements period, including the penalty or con- § 800.101 General requirements. sequence imposed on the issuer for failure to meet the requirement. An MSP issuer must: Qualified Health Plan or QHP means a (a) Licensed. Be licensed as a health health plan that has in effect a certifi- insurance issuer in each State where it cation that it meets the standards de- offers health insurance coverage; scribed in subpart C of 45 CFR part 156 (b) Contract with OPM. Have a con- issued or recognized by each Exchange tract with OPM pursuant to this part; through which such plan is offered pur- (c) Required levels of coverage. Offer suant to the process described in sub- levels of coverage as required by part K of 45 CFR part 155. § 800.107 of this part; Rating means the process, including (d) Eligibility and enrollment. MSP op- rating factors, numbers, formulas, tions and MSP issuers must meet the methodologies, and actuarial assump- same requirements for eligibility, en- tions, used to set premiums for a rollment, and termination of coverage health plan. as those that apply to QHPs and QHP Secretary means the Secretary of the issuers pursuant to 45 CFR part 155, Department of Health and Human subparts D, E, and H, and 45 CFR Services. 156.250, 156.260, 156.265, 156.270, and SHOP means a Small Business Health 156.285; Options Program operated by an Ex- (e) Applicable to each MSP issuer. En- change through which a qualified em- sure that each of its MSP options ployer can provide its employees and meets the requirements of this part; their dependents with access to one or (f) Compliance. Comply with all stand- more qualified health plans (QHPs). ards set forth in this part; Silver plan variation has the meaning (g) OPM direction and other legal re- given that term in 45 CFR 156.400. quirements. Timely comply with OPM Small employer means, in connection instructions and directions and with with a group health plan with respect other applicable law; and to a calendar year and a plan year, an (h) Other requirements. Meet such employer who employed an average of other requirements as determined ap- at least one but not more than 100 em- propriate by OPM, in consultation with ployees on business days during the HHS, pursuant to section 1334(b)(4) of preceding calendar year and who em- the Affordable Care Act. ploys at least one employee on the first (i) Non-discrimination. MSP options day of the plan year. In the case of plan and MSP issuers must comply with ap- years beginning before January 1, 2016, plicable Federal and State non-dis- a State may elect to define small em- crimination laws, including the stand- ployer by substituting ‘‘50 employees’’ ards set forth in 45 CFR 156.125 and for ‘‘100 employees.’’ 156.200(e).

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§ 800.102 Compliance with Federal (4) With respect to each subsequent law. year, the health insurance issuer will (a) Public Health Service Act. As a con- offer the MSP options in all States. dition of participation in the MSP Pro- (b) Partial coverage within a State. (1) gram, an MSP issuer must comply with OPM may enter into a contract with an applicable provisions of part A of title MSP issuer even if the MSP issuer’s XXVII of the PHS Act. Compliance MSP options for a State cover fewer shall be determined by the Director. than all the service areas specified for that State pursuant to § 800.110 of this (b) Affordable Care Act. As a condition part. of participation in the MSP Program, (2) If an issuer offers both an MSP op- an MSP issuer must comply with appli- tion and QHP on the same Exchange, cable provisions of title I of the Afford- an MSP issuer must offer MSP cov- able Care Act. Compliance shall be de- erage in a service area or areas that is termined by the Director. equal to the greater of: § 800.103 Authority to contract with (i) The QHP service area defined by issuers. the issuer or, (ii) The service area specified for that (a) General. OPM may enter into con- State pursuant to § 800.110 of this part tracts with health insurance issuers to covered by the issuer’s QHP. offer at least two MSP options on Ex- (c) Participation in SHOPs. (1) An MSP changes and SHOPs in each State, issuer’s participation in a Federally-fa- without regard to any statutes that cilitated SHOP must be consistent would otherwise require competitive with the requirements for QHP issuers bidding. specified in 45 CFR 156.200(g). (b) Non-profit entity. In entering into (2) An MSP issuer must comply with contracts with health insurance issuers State standards governing participa- to offer MSP options, OPM will enter tion in a State-based SHOP, consistent into a contract with at least one non- with § 800.114. For these State-based profit entity as defined in § 800.20 of SHOP standards, OPM retains discre- this part. tion to allow an MSP issuer to phase- (c) Group of issuers. Any contract to in SHOP participation in States pursu- offer MSP options may be with a group ant to section 1334(e) of the Affordable of issuers as defined in § 800.20 of this Care Act. part. (d) Licensed where offered. OPM may (d) Individual and group coverage. The enter into a contract with an MSP contracts will provide for individual issuer who is not licensed in every health insurance coverage and for State, provided that the issuer is li- group health insurance coverage for censed in every State where it offers small employers. MSP coverage through any Exchanges in that State and demonstrates to OPM § 800.104 Phased expansion, etc. that it is making a good faith effort to (a) Phase-in. OPM may enter into a become licensed in every State con- contract with a health insurance issuer sistent with the timeframe in para- to offer MSP options if the health in- graph (a) of this section. surance issuer agrees that: (1) With respect to the first year for § 800.105 Benefits. which the health insurance issuer of- (a) Package of benefits. (1) An MSP fers MSP options, the health insurance issuer must offer a package of benefits issuer will offer MSP options in at that includes the essential health bene- least 60 percent of the States; fits (EHB) described in section 1302 of (2) With respect to the second such the Affordable Care Act for each MSP year, the health insurance issuer will option within a State. offer the MSP options in at least 70 (2) The package of benefits referred percent of the States; to in paragraph (a)(1) of this section (3) With respect to the third such must comply with section 1302 of the year, the health insurance issuer will Affordable Care Act, as well as any ap- offer the MSP options in at least 85 plicable standards set by OPM and any percent of the States; and applicable standards set by HHS.

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(b) Package of benefits options. (1) An (ii) An MSP issuer must follow State MSP issuer must offer at least one uni- definitions where the State specifically form package of benefits in each State defines the habilitative services and that is substantially equal to: devices category pursuant to 45 CFR (i) The EHB-benchmark plan in each 156.110(f) and the State definition is not State in which it operates; or in conflict with the Federal definition (ii) Any EHB-benchmark plan se- or goes above the standards set in the lected by OPM under paragraph (c) of Federal definition. this section. (iii) In the case of any State that (2) An issuer applying to participate does not define this category and ab- in the MSP Program may select either sent a clearly applicable Federal defi- or both of the package of benefits op- nition, if any OPM-selected EHB- tions described in paragraph (b)(1) of benchmark plan lacks coverage of this section in its application. In each habilitative services and devices, OPM State, the issuer may choose one EHB- may determine what habilitative serv- benchmark for each product it offers. ices and devices are to be included in that EHB-benchmark plan. (3) An MSP issuer must comply with (5) Any EHB-benchmark plan se- any State standards relating to substi- lected by OPM under paragraph (c)(1) tution of benchmark benefits or stand- of this section must include, for each ard benefit designs. State, any State-required benefits en- (c) OPM selection of benchmark plans. acted before December 31, 2011, that are (1) The OPM-selected EHB-benchmark included in the State’s EHB-bench- plans are the three largest Federal Em- mark plan as described in paragraph ployees Health Benefits (FEHB) Pro- (b)(1)(i) of this section, or specific to gram plan options, as identified by the market in which the plan is of- HHS pursuant to section 1302(b) of the fered. Affordable Care Act, and as supple- (d) OPM approval. An MSP issuer’s mented pursuant to paragraphs (c)(2) package of benefits, including its for- through (5) of this section. mulary, must be submitted for ap- (2) Any EHB-benchmark plan se- proval by OPM, which will review a lected by OPM under paragraph (c)(1) package of benefits proposed by an lacking coverage of pediatric oral serv- MSP issuer and determine if it is sub- ices or pediatric vision services must stantially equal to an EHB-benchmark be supplemented by the addition of the plan described in paragraph (b)(1) of entire category of benefits from the this section, pursuant to standards set largest Federal Employee Dental and forth by OPM and any applicable Vision Insurance Program (FEDVIP) standards set forth by HHS, including dental or vision plan options, respec- 45 CFR 156.115, 156.122, and 156.125. tively, pursuant to 45 CFR 156.110(b) (e) State payments for additional State- and section 1302(b) of the Affordable required benefits. If a State requires Care Act. that benefits in addition to the bench- (3) In all States where an MSP issuer mark package be offered to MSP en- uses the OPM-selected EHB-benchmark rollees in that State, then pursuant to plan, the MSP issuer may manage section 1334(c)(2) of the Affordable Care formularies around the needs of antici- Act, the State must defray the cost of pated or actual users, subject to ap- such additional benefits by making proval by OPM. payments either to the enrollee or to (4) An MSP issuer must follow the the MSP issuer on behalf of the en- definition of habilitative services and rollee. devices as follows: (i) An MSP issuer must follow the § 800.106 Cost-sharing limits, advance Federal definitions where HHS specifi- payments of premium tax credits, cally defines habilitative services and and cost-sharing reductions. devices if the State does not define the (a) Cost-sharing limits. For each MSP term, if the State defines the term in a option it offers, an MSP issuer must conflicting way, or if the State defini- ensure that the cost-sharing provisions tion is less stringent than the Federal of the MSP option comply with section definition. 1302(c) of the Affordable Care Act, as

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well as any applicable standards set by amount determined necessary by OPM OPM or HHS. to meet the costs of OPM’s functions (b) Advance payments of premium tax under the Affordable Care Act for a credits and cost-sharing reductions. For plan year, including but not limited to each MSP option it offers, an MSP such functions as entering into con- issuer must ensure that an eligible in- tracts with, certifying, recertifying, dividual receives the benefit of advance decertifying, and overseeing MSP op- payments of premium tax credits under tions and MSP issuers for that plan section 36B of the Internal Revenue year. The amount of the assessment or Code and the cost-sharing reductions user fee charged by OPM will be offset under section 1402 of the Affordable against the assessment or user fee Care Act. An MSP issuer must also amount required by any State-based comply with any applicable standards Exchange or federally-facilitated Ex- set by OPM or HHS. change such that the total of all assessments and user fees paid by the § 800.107 Levels of coverage. MSP issuer for the year for the MSP (a) Silver and gold levels of coverage re- option shall be no greater than nor less quired. An MSP issuer must offer at than the amount of the assessment or least one MSP option at the silver user fee paid by QHP issuers in that level of coverage and at least one MSP State-based Exchange or federally-fa- option at the gold level of coverage on cilitated Exchange for that year. each Exchange in which the issuer is (c) Process for collecting MSP assess- certified to offer an MSP option pursu- ment or user fees. OPM may require an ant to a contract with OPM. MSP issuer to make payment of the (b) Bronze or platinum metal levels of MSP Program assessment or user fee coverage permitted. Pursuant to a con- amount directly to OPM, or may estab- tract with OPM, an MSP issuer may lish other mechanisms for the collec- offer one or more MSP options at the tion process. bronze level of coverage or the platinum level of coverage, or both, on any § 800.109 Network adequacy. Exchange or SHOP in any State. (a) An MSP (c) Child-only plans. For each level of General requirement. coverage, the MSP issuer must offer a issuer must ensure that the provider child-only MSP option at the same network of each of its MSP options, as level of coverage as any health insur- available to all enrollees, meets the ance coverage offered to individuals following standards: who, as of the beginning of the plan (1) Maintains a network that is suffi- year, have not attained the age of 21. cient in number and types of providers (d) Plan variations for the reduction or to assure that all services will be ac- elimination of cost-sharing. An MSP cessible without unreasonable delay; issuer must comply with section 1402 of (2) Is consistent with the network the Affordable Care Act, as well as any adequacy provisions of section 2702(c) applicable standards set by OPM or of the Public Health Service Act; and HHS. (3) Includes essential community pro- (e) OPM approval. An MSP issuer viders in compliance with 45 CFR must submit the levels of coverage 156.235. plans and plan variations to OPM for (b) Provider directory. An MSP issuer review and approval by OPM. must make its provider directory for an MSP option available to the Ex- § 800.108 Assessments and user fees. change for publication online pursuant (a) Discretion to charge assessment and to guidance from the Exchange and to user fees. Beginning in plan year 2015, potential enrollees in hard copy, upon OPM may require an MSP issuer to pay request. In the provider directory, an an assessment or user fee as a condi- MSP issuer must identify providers tion of participating in the MSP Pro- that are not accepting new patients. gram. (c) OPM guidance. OPM will issue (b) Determination of amount. The guidance containing the criteria and amount of the assessment or user fee standards that it will use to determine charged by OPM for a plan year is the the adequacy of a provider network.

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§ 800.110 Service area. the MSP Program in a manner similar to the FEHB Program. An MSP issuer must offer an MSP option within one or more service areas (b) Quality and quality improvement in a State defined by each Exchange standards. An MSP issuer must comply pursuant to 45 CFR 155.1055. If an Ex- with any standards required by OPM change permits issuers to define their for reporting quality and quality im- service areas, an MSP issuer must ob- provement activities, including but not tain OPM’s approval for its proposed limited to implementation of a quality service areas. Pursuant to § 800.104 of improvement strategy, disclosure of this part, OPM may enter into a con- quality measures to enrollees and pro- tract with an MSP issuer even if the spective enrollees, reporting of pedi- MSP issuer’s MSP options for a State atric quality measures, and implemen- cover fewer than all the service areas tation of rating and enrollee satisfac- specified for that State. MSP options tion surveys, which will be similar to will follow the same standards for serv- standards under section 1311(c)(1)(E), ice areas for QHPs pursuant to 45 CFR (H), and (I), (c)(3), and (c)(4) of the Af- 155.1055. fordable Care Act.

§ 800.111 Accreditation requirement. § 800.113 Benefit plan material or information. (a) General requirement. An MSP issuer must be or become accredited (a) Compliance with Federal and State consistent with the requirements for law. An MSP issuer must comply with QHP issuers specified in section 1311 of Federal and State laws relating to ben- the Affordable Care Act and 45 CFR efit plan material or information, in- 156.275(a)(1). cluding the provisions of this section (b) Release of survey. An MSP issuer and guidance issued by OPM specifying must authorize the accrediting entity its standards, process, and timeline for that accredits the MSP issuer to re- approval of benefit plan material or in- lease to OPM and to the Exchange a formation. copy of its most recent accreditation (b) General standards for MSP applica- survey, together with any survey-re- tions and notices. An MSP issuer must lated information that OPM or an Ex- provide all applications and notices to change may require, such as corrective enrollees in accordance with the stand- action plans and summaries of find- ards described in 45 CFR 155.205(c). ings. OPM may establish additional stand- (c) Timeframe for accreditation. An ards to meet the needs of MSP enroll- MSP issuer that is not accredited as of ees. the date that it enters into a contract (1) Accuracy. An MSP issuer is re- with OPM must become accredited sponsible for the accuracy of its benefit within the timeframe established by plan material or information. OPM as authorized by 45 CFR 155.1045. (2) Truthful, not misleading, no material omissions, and plain language. All § 800.112 Reporting requirements. benefit plan material or information (a) OPM specification of reporting re- must be: quirements. OPM will specify the data (i) Truthful, not misleading, and and information that must be reported without material omissions; and by an MSP issuer, including data per- (ii) Written in plain language, as de- mitted or required by the Affordable fined in section 1311(e)(3)(B) of the Af- Care Act and such other data as OPM fordable Care Act. may determine necessary for the over- (3) Uniform explanation of coverage sight and administration of the MSP documents and standardized definitions. Program. OPM will also specify the An MSP issuer must comply with the form, manner, processes, and frequency provisions of section 2715 of the PHS for the reporting of data and informa- Act and regulations issued to imple- tion. The Director may require that ment that section. MSP issuers submit claims payment (4) OPM review and approval of benefit and enrollment data to facilitate plan material or information. OPM may OPM’s oversight and administration of request an MSP issuer to submit to

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OPM benefit plan material or informa- tors permitted under section 2701 of the tion, as defined in § 800.20. OPM re- PHS Act and State law; serves the right to review and approve (c) Preexisting conditions. Not impose benefit plan material or information to any preexisting condition exclusion ensure that an MSP issuer complies and comply with section 2704 of the with Federal and State laws, and the PHS Act; standards prescribed by OPM with re- (d) Non-discrimination. Comply with spect to benefit plan material or infor- section 2705 of the PHS Act; mation. (e) Quality improvement and reporting. (5) Statement on certification by OPM. Comply with all Federal and State An MSP issuer may include a state- quality improvement and reporting re- ment in its benefit plan material or in- quirements. Quality improvement and formation that: reporting means quality improvement (i) OPM has certified the MSP option as defined in section 1311(h) of the Af- as eligible to be offered on the Ex- fordable Care Act and quality improve- change; and ment plans or strategies required under (ii) OPM monitors the MSP option State law, and quality reporting as de- for compliance with all applicable law. fined in section 2717 of the PHS Act and section 1311(g) of the Affordable § 800.114 Compliance with applicable Care Act. Quality improvement also in- State law. cludes activities such as, but not lim- (a) Compliance with State law. An MSP ited to, implementation of a quality issuer must, with respect to each of its improvement strategy, disclosure of MSP options, generally comply with quality measures to enrollees and pro- State law pursuant to section 1334(b)(2) spective enrollees, and reporting of pe- of the Affordable Care Act. However, diatric quality measures, which will be the MSP options and MSP issuers are similar to standards under section not subject to State laws that: 1311(c)(1)(E), (H), and (I) of the Afford- (1) Are inconsistent with section 1334 able Care Act; of the Affordable Care Act or this part; (f) Fraud and abuse. Comply with all (2) Prevent the application of a re- Federal and State fraud and abuse quirement of part A of title XXVII of laws; the PHS Act; or (g) Licensure. Be licensed in every (3) Prevent the application of a re- State in which it offers an MSP option; quirement of title I of the Affordable (h) Solvency and financial require- Care Act. ments. Comply with the solvency stand- (b) Determination of inconsistency. ards set by each State in which it of- After consultation with the State and fers an MSP option; HHS, OPM reserves the right to deter- (i) Market conduct. Comply with the mine, in its judgment, as effectuated market conduct standards of each through an MSP Program contract, State in which it offers an MSP option; these regulations, or OPM guidance, (j) Prompt payment. Comply with ap- whether the standards set forth in plicable State law in negotiating the paragraph (a) of this section are satis- terms of payment in contracts with its fied with respect to particular State providers and in making payments to laws. claimants and providers; (k) Appeals and grievances. Comply § 800.115 Level playing field. with Federal standards under section An MSP issuer must, with respect to 2719 of the PHS Act for appeals and each of its MSP options, meet the fol- grievances relating to adverse benefit lowing requirements in order to ensure determinations, as described in subpart a level playing field, subject to § 800.114: F of this part; (a) Guaranteed renewal. Guarantee (l) Privacy and confidentiality. Comply that an enrollee can renew enrollment with all Federal and State privacy and in an MSP option in compliance with security laws and requirements, includ- sections 2703 and 2742 of the PHS Act; ing any standards required by OPM in (b) Rating. In proposing premiums for guidance or contract, which will be OPM approval, use only the rating fac- similar to the standards contained in

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45 CFR part 164 and applicable State unless a different timeframe is agreed law; and upon. (m) Benefit plan material or informa- (4) OPM’s written decision will con- tion. Comply with Federal and State stitute final agency action that is sub- law, including § 800.113 of this part. ject to review under the Administra- tive Procedure Act in the appropriate § 800.116 Process for dispute resolu- U.S. district court. Such review is lim- tion. ited to the record that was before OPM (a) Determinations about applicability when OPM made its decision. of State law under section 1334(b)(2) of the Affordable Care Act. In the event of Subpart C—Premiums, Rating Fac- a dispute about the applicability to an tors, Medical Loss Ratios, and MSP option or MSP issuer of a State Risk Adjustment law, the State may request that OPM reconsider a determination that an § 800.201 General requirements. MSP option or MSP issuer is not sub- (a) Premium negotiation. OPM will ne- ject to such State law. gotiate annually with an MSP issuer, (b) Required demonstration. A State on a State by State basis, the pre- making a request under paragraph (a) miums for each MSP option offered by of this section must demonstrate that that issuer in that State. Such negotia- the State law at issue: tions may include negotiations about (1) Is not inconsistent with section the cost-sharing provisions of an MSP 1334 of the Affordable Care Act or this option. part; (b) Duration. Premiums will remain (2) Does not prevent the application in effect for the plan year. of a requirement of part A of title (c) Guidance on rate development. OPM XXVII of the PHS Act; and will issue guidance addressing methods (3) Does not prevent the application for the development of premiums for the MSP Program. That guidance will of a requirement of title I of the Af- follow State rating standards generally fordable Care Act. applicable in a State, to the greatest (c) Request for review. The request extent practicable. must be in writing and include contact (d) Calculation of actuarial value. An information, including the name, tele- MSP issuer must calculate actuarial phone number, email address, and value in the same manner as QHP mailing address of the person or per- issuers under section 1302(d) of the Af- sons whom OPM may contact regard- fordable Care Act, as well as any appli- ing the request for review. The request cable standards set by OPM or HHS. must be in such form, contain such in- (e) OPM rate review process. An MSP formation, and be submitted in such issuer must participate in the rate re- manner and within such timeframe as view process established by OPM to ne- OPM may prescribe. gotiate rates for MSP options. The rate (1) The requester may submit to OPM review process established by OPM will any relevant information to support its be similar to the process established by request. HHS pursuant to section 2794 of the (2) OPM may obtain additional infor- PHS Act and disclosure and review mation relevant to the request from standards established under 45 CFR any source as it may, in its judgment, part 154. deem necessary. OPM will provide the (f) State effective rate review. With re- requester with a copy of any additional spect to its MSP options, an MSP information it obtains and provide an issuer is subject to a State’s rate re- opportunity for the requester to review process, including a State’s Effec- spond (including by submission of addi- tive Rate Review Program established tional information or explanation). by HHS pursuant to section 2794 of the (3) OPM will issue a written decision PHS Act and 45 CFR part 154. In the within 60 calendar days after receiving event HHS is reviewing rates for a the written request, or after the due State pursuant to section 2794 of the date for a response under paragraph PHS Act, HHS will defer to OPM’s (c)(2) of this section, whichever is later, judgment regarding the MSP options’

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proposed rate increase. If a State with- tor in accordance with any applicable holds approval of an MSP option and Federal or State laws and regulations OPM determines, in its discretion, that implementing section 2701(a) of the the State’s action would prevent OPM PHS Act. from administrating the MSP Pro- (f) Wellness programs. An MSP issuer gram, OPM retains authority to make must comply with any applicable Fed- the final decision to approve rates for eral or State laws and regulations im- participation in the MSP Program, plementing section 2705 of the PHS notwithstanding the absence of State Act. approval. (g) Single risk pool. An MSP issuer § 800.203 Medical loss ratio. must consider all enrollees in an MSP (a) Required medical loss ratio. An option to be in the same risk pool as MSP issuer must attain: all enrollees in all other health plans (1) The medical loss ratio (MLR) re- in the individual market or the small quired under section 2718 of the PHS group market, respectively, in compli- Act and regulations promulgated by ance with section 1312(c) of the Afford- HHS; and able Care Act, 45 CFR 156.80, and any applicable Federal or State laws and (2) Any MSP-specific MLR that OPM regulations implementing that section. may set in the best interests of MSP enrollees or that is necessary to be § 800.202 Rating factors. consistent with a State’s requirements with respect to MLR. (a) Permissible rating factors. In proposing premiums for each MSP option, (b) Consequences of not attaining re- an MSP issuer must use only the rat- quired medical loss ratio. If an MSP ing factors permitted under section issuer fails to attain an MLR set forth 2701 of the PHS Act. in paragraph (a) of this section, OPM (b) Application of variations based on may take any appropriate action, in- age or tobacco use. Rating variations cluding but not limited to inter- permitted under section 2701 of the mediate sanctions, such as suspension PHS Act must be applied by an MSP of marketing, decertifying an MSP op- issuer based on the portion of the pre- tion in one or more States, or termi- mium attributable to each family nating an MSP issuer’s contract pursu- member covered under the coverage in ant to § 800.404 of this part. accordance with any applicable Federal § 800.204 Reinsurance, risk corridors, or State laws and regulations imple- and risk adjustment. menting section 2701(a) of the PHS Act. (c) Age rating. For age rating, an MSP (a) Transitional reinsurance program. issuer must use the ratio established An MSP issuer must comply with sec- by the State in which the MSP option tion 1341 of the Affordable Care Act, 45 is offered, if it is less than 3:1. CFR part 153, and any applicable Fed- (1) Age bands. An MSP issuer must eral or State regulations under section use the uniform age bands established 1341 that set forth requirements to im- under HHS regulations implementing plement the transitional reinsurance section 2701(a) of the PHS Act. program for the individual market. (2) Age curves. An MSP issuer must (b) Temporary risk corridors program. use the age curves established under An MSP issuer must comply with sec- HHS regulations implementing section tion 1342 of the Affordable Care Act, 45 2701(a) of the PHS Act, or age curves CFR part 153, and any applicable Fed- established by a State pursuant to HHS eral regulations under section 1342 that regulations. set forth requirements to implement (d) Rating areas. An MSP issuer must the risk corridor program. use the rating areas appropriate to the (c) Risk adjustment program. An MSP State in which the MSP option is of- issuer must comply with section 1343 of fered and established under HHS regu- the Affordable Care Act, 45 CFR part lations implementing section 2701(a) of 153, and any applicable Federal or the PHS Act. State regulations under section 1343 (e) Tobacco rating. An MSP issuer that set forth requirements to imple- must apply tobacco use as a rating fac- ment the risk adjustment program.

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Subpart D—Application and not preclude the applicant from sub- Contracting Procedures mitting an application for a subsequent year to participate in the MSP Pro- § 800.301 Application process. gram. (a) Acceptance of applications. With- § 800.303 MSP Program contracting. out regard to 41 U.S.C. 6101(b)–(d), or any other statute requiring competi- (a) Participation in MSP Program. To tive bidding, OPM may consider annual become an MSP issuer, the applicant applications from health insurance and the Director or the Director’s des- issuers, including groups of health in- ignee must sign a contract that meets surance issuers as defined in § 800.20, to the requirements of this part. participate in the MSP Program. If (b) Standard contract. OPM will estab- OPM determines that it is not bene- lish a standard contract for the MSP ficial for the MSP Program to consider Program. new issuer applications for an upcom- (c) Premiums. OPM and the applicant ing year, OPM will issue a notice to will negotiate the premiums for an that effect. Each existing MSP issuer MSP option for each plan year in ac- may complete a renewal application cordance with the provisions of subpart annually. C of this part. (b) Form and manner of applications. (d) Package of benefits. OPM must ap- An applicant must submit to OPM, in prove the applicant’s package of bene- the form and manner and in accordance fits for its MSP option. with the timeline specified by OPM, (e) Additional terms and conditions. the information requested by OPM for OPM may elect to negotiate with an determining whether an applicant applicant such additional terms, condi- meets the requirements of this part. tions, and requirements that: (1) Are in the interests of MSP en- § 800.302 Review of applications. rollees; or (a) Determinations. OPM will deter- (2) OPM determines to be appro- mine if an applicant meets the require- priate. ments of this part. If OPM determines (f) Certification to offer health insur- that an applicant meets the require- ance coverage. ments of this part, OPM may accept (1) For each plan year, an MSP Pro- the applicant to enter into contract ne- gram contract will specify MSP op- gotiations with OPM to participate in tions that OPM has certified, the spe- the MSP Program. cific package(s) of benefits authorized (b) Requests for additional information. OPM may request additional informa- to be offered on each Exchange, and the tion from an applicant before making a premiums to be charged for each pack- decision about whether to enter into age of benefits on each Exchange. contract negotiations with that appli- (2) An MSP issuer may not offer an cant to participate in the MSP Pro- MSP option on an Exchange unless its gram. MSP Program contract with OPM in- (c) Declination of application. If, after cludes a certification authorizing the reviewing an application to participate MSP issuer to offer the MSP option on in the MSP Program, OPM declines to that Exchange in accordance with enter into contract negotiations with paragraph (f)(1) of this section. the applicant, OPM will inform the applicant in writing of the reasons for § 800.304 Term of the contract. that decision. (a) Term of a contract. The term of the (d) Discretion. The decision whether contract will be specified in the MSP to enter into contract negotiations Program contract and must be for a pe- with a health insurance issuer who has riod of at least the 12 consecutive applied to participate in the MSP Pro- months defined as the plan year. gram is committed to OPM’s discre- (b) Plan year. The plan year is a con- tion. secutive 12-month period during which (e) Impact on future applications. an MSP option provides coverage for OPM’s declination of an application to health benefits. A plan year may be a participate in the MSP Program will calendar year or otherwise.

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§ 800.305 Contract renewal process. level issuer. The circumstances under (a) Renewal. To continue partici- which nonrenewal may occur are: (1) As used in pating in the MSP Program, an MSP Nonrenewal of contract. this subpart and subpart E of this part, issuer must provide to OPM, in the ‘‘nonrenewal of contract’’ means a de- form and manner and in accordance cision by either OPM or an MSP issuer with the timeline prescribed by OPM, not to renew an MSP Program con- the information requested by OPM for tract. determining whether the MSP issuer (2) Nonrenewal of participation. As continues to meet the requirements of used in this subpart and subpart E of this part. this part, ‘‘nonrenewal of participa- (b) OPM decision. Subject to para- tion’’ means a decision by OPM, an graph (c) of this section, OPM will MSP issuer, or a State-level issuer not renew the MSP Program contract of an MSP issuer who timely submits the in- to renew a State-level issuer’s partici- formation described in paragraph (a). pation in a MSP Program contract. (c) OPM discretion not to renew. OPM (b) Notice required. Either OPM or an may decline to renew the contract of MSP issuer may decline to renew an an MSP issuer if: MSP Program contract by providing a (1) OPM and the MSP issuer fail to written notice of nonrenewal to the agree on premiums and benefits for an other party. MSP option for the subsequent plan (c) MSP issuer responsibilities. The year; MSP issuer’s written notice of non- (2) The MSP issuer has engaged in renewal must be made in accordance conduct described in § 800.404(a) of this with its MSP Program contract with part; or OPM. The MSP issuer also must com- (3) OPM determines that the MSP ply with any requirements regarding issuer will be unable to comply with a the termination of a plan that are ap- material provision of section 1334 of plicable to a QHP offered on an Ex- the Affordable Care Act or this part. change on which the MSP option was (d) Failure to agree on premiums and offered, including a requirement to benefits. Except as otherwise provided provide advance written notice of ter- in this part, if an MSP issuer has com- mination to enrollees. MSP issuers plied with paragraph (a) of this section shall provide written notice to enroll- and OPM and the MSP issuer fail to ees in accordance with § 800.404(d). agree on premiums and benefits for an MSP option on one or more Exchanges Subpart E—Compliance for the subsequent plan year by the date required by OPM, either party § 800.401 Contract performance. may provide notice of nonrenewal pur- (a) General. An MSP issuer must per- suant to § 800.306 of this part, or OPM form an MSP Program contract with may in its discretion withdraw the cer- OPM in accordance with the require- tification of that MSP option on the ments of section 1334 of the Affordable Exchange or Exchanges for that plan Care Act and this part. The MSP issuer year. In addition, if OPM and the MSP must continue to meet such require- issuer fail to agree on benefits and pre- ments while under an MSP Program miums for an MSP option on one or contract with OPM. more Exchanges by the date set by (b) Specific requirements for issuers. In OPM and in the event of no action (no addition to the requirements described notice of nonrenewal or renewal) by ei- in paragraph (a) of this section, each ther party, the MSP Program contract MSP issuer must: will be renewed and the existing pre- (1) Have, in the judgment of OPM, miums and benefits for that MSP op- the financial resources to carry out its tion on that Exchange or Exchanges obligations under the MSP Program; will remain in effect for the subsequent (2) Keep such reasonable financial plan year. and statistical records, and furnish to OPM such reasonable financial and sta- § 800.306 Nonrenewal. tistical reports with respect to the (a) Nonrenewal. Nonrenewal may per- MSP option or the MSP issuer, as may tain to the MSP issuer or the State- be requested by OPM;

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(3) Permit representatives of OPM (8) Establishing and maintaining a (including the OPM Office of Inspector system of internal controls that pro- General), the U.S. Government Ac- vides reasonable assurance that: countability Office, and any other ap- (i) The provision and payments of plicable Federal Government auditing benefits and other expenses comply entities to audit and examine its with legal, regulatory, and contractual records and accounts that pertain, di- guidelines; rectly or indirectly, to the MSP option (ii) MSP funds, property, and other at such reasonable times and places as assets are safeguarded against waste, may be designated by OPM or the U.S. loss, unauthorized use, or misappro- Government Accountability Office; priation; and (4) Timely submit to OPM a properly (iii) Data is accurately and fairly dis- completed and signed novation or closed in all reports required by OPM. change-of-name agreement in accord- (d) Poor business practices. OPM will ance with subpart 42.12 of 48 CFR part consider an MSP issuer’s specific cir- 42; cumstances and facts in using its dis- (5) Perform the MSP Program con- cretion to determine compliance with tract in accordance with prudent busi- paragraph (b)(6) of this section. For ness practices, as described in para- purposes of paragraph (b)(6) of this sec- graph (c) of this section; and tion, poor business practices include, (6) Not perform the MSP Program but are not limited to, the following: contract in accordance with poor busi- (1) Using fraudulent or unethical ness practices, as described in para- business or health care practices or graph (d) of this section. otherwise displaying a lack of business (c) Prudent business practices. OPM integrity or honesty; will consider an MSP issuer’s specific (2) Repeatedly or knowingly pro- circumstances and facts in using its viding false or misleading information discretion to determine compliance in the rate setting process; with paragraph (b)(5) of this section. (3) Failing to comply with OPM in- For purposes of paragraph (b)(5) of this structions and directives; section, prudent business practices in- (4) Having an accounting system that clude, but are not limited to, the fol- is incapable of separately accounting lowing: for costs incurred under the contract (1) Timely compliance with OPM in- and/or that lacks the internal controls structions and directives; necessary to fulfill the terms of the (2) Legal and ethical business and contract; health care practices; (5) Failing to ensure that the MSP (3) Compliance with the terms of the issuer properly pays or denies claims, MSP Program contract, regulations, or, if applicable, provides medical serv- and statutes; ices that are inconsistent with standards of good medical practice; and (4) Timely and accurate adjudication (6) Entering into contracts or em- of claims or rendering of medical serv- ployment agreements with providers, ices; provider groups, or health care workers (5) Operating a system for accounting that include provisions or financial infor costs incurred under the MSP Pro- centives that directly or indirectly cre- gram contract, which includes segre- ate an inducement to limit or restrict gating and pricing MSP option medical communication about medically nec- utilization and allocating indirect and essary services to any individual cov- administrative costs in a reasonable ered under the MSP Program. Finan- and equitable manner; cial incentives are defined as bonuses, (6) Maintaining accurate accounting withholds, commissions, profit sharing reports of costs incurred in the admin- or other similar adjustments to basic istration of the MSP Program con- compensation (e.g., service fee, capita- tract; tion, salary) which have the effect of (7) Applying performance standards limiting or reducing communication for assuring contract quality as out- about appropriate medically necessary lined at § 800.402; and services.

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(e) Performance escrow account. OPM App.). An MSP issuer must provide any may require MSP issuers to pay an as- requested information in the form, sessment into an escrow account to en- manner, and timeline prescribed by sure contract compliance and benefit OPM. MSP enrollees. § 800.404 Compliance actions. § 800.402 Contract quality assurance. (a) Causes for OPM compliance actions. (a) General. This section prescribes The following constitute cause for general policies and procedures to en- OPM to impose a compliance action de- sure that services acquired under MSP scribed in paragraph (b) of this section Program contracts conform to the con- against an MSP issuer: tract’s quality requirements. (1) Failure by the MSP issuer to meet (b) Internal controls. OPM may peri- the requirements set forth in odically evaluate the contractor’s sys- § 800.401(a) and (b); tem of internal controls under the (2) An MSP issuer’s sustained failure quality assurance program required by to perform the MSP Program contract the contract and will acknowledge in in accordance with prudent business writing if the system is inconsistent practices, as described in § 800.401(c); with the requirements set forth in the (3) A pattern of poor conduct or evi- contract. OPM’s reviews do not dimin- dence of poor business practices such ish the contractor’s obligation to im- as those described in § 800.401(d); or plement and maintain an effective and (4) Such other violations of law or efficient system to apply the internal regulation as OPM may determine, in- controls. cluding pursuant to its authority under (c) Performance standards. (1) OPM §§ 800.102 and 800.114. will issue specific performance stand- (b) Compliance actions. (1) OPM may ards for MSP Program contracts and impose a compliance action against an will inform MSP issuers of the applica- MSP issuer at any time during the con- ble performance standards prior to ne- tract term if it determines that the gotiations for the contract year. OPM MSP issuer is not in compliance with may benchmark its standards against applicable law, this part, or the terms standards generally accepted in the in- of its contract with OPM. surance industry. OPM may authorize (2) Compliance actions may include, nationally recognized standards to be but are not limited to: used to fulfill this requirement. (i) Establishment and implementa- (2) MSP issuers must comply with tion of a corrective action plan; the performance standards issued pur- (ii) Imposition of intermediate sanc- suant to this section. tions, such as suspension of marketing; (iii) Performance incentives; § 800.403 Fraud and abuse. (iv) Reduction of service area or (a) Program required. An MSP issuer areas; must conduct a program to assess its (v) Withdrawal of the certification of vulnerability to fraud and abuse as the MSP option or options offered on well as to address such vulnerabilities. one or more Exchanges; (b) Fraud detection system. An MSP (vi) Nonrenewal of participation issuer must operate a system designed (vii) Nonrenewal of contract; and to detect and eliminate fraud and (viii) Withdrawal of approval or ter- abuse by employees and subcontractors mination of the MSP Program con- of the MSP issuer, by providers fur- tract. nishing goods or services to MSP en- (c) Notice of compliance action. (1) rollees, and by MSP enrollees. OPM must notify an MSP issuer in (c) Submission of information. An MSP writing of a compliance action under issuer must provide to OPM such infor- this section. Such notice must indicate mation or assistance as may be nec- the specific compliance action under- essary for the agency to carry out the taken and the reason for the compli- duties and responsibilities, including ance action. those of the Office of Inspector General (2) For compliance actions listed in as specified in sections 4 and 6 of the § 800.404(b)(2)(v) through (viii), such no- Inspector General Act of 1978 (5 U.S.C. tice must include a statement that the

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MSP issuer is entitled to request a re- (b) Request for reconsideration and/or consideration of OPM’s determination hearing. (1) An MSP issuer with a right to impose a compliance action pursu- to request reconsideration specified in ant to § 800.405. paragraph (a) of this section may re- (3) Upon imposition of a compliance quest a hearing in which OPM will reaction listed in paragraphs (b)(2)(iv) consider its determination to impose a through (vii) of this section, OPM must compliance action. notify the State Insurance Commis- (2) A request under this section must sioner(s) and Exchange officials in the be in writing and contain contact in- State or States in which the compli- formation, including the name, tele- ance action is effective. phone number, email address, and (d) Notice to enrollees. If the contract mailing address of the person or per- is terminated, if OPM withdraws cer- sons whom OPM may contact regard- tification of an MSP option, or if a ing a request for a hearing with respect State-level issuer’s participation in the to the reconsideration. The request MSP Program contract is not renewed, must be in such form, contain such in- as described in §§ 800.306 and formation, and be submitted in such 800.404(b)(2), or in any situation in manner as OPM may prescribe. which an MSP option is no longer (3) The request must be received by available to enrollees, the MSP issuer OPM within 15 calendar days after the must comply with any State or Ex- date of the MSP issuer’s receipt of the change requirements regarding dis- notice of compliance action. The MSP continuing a particular type of cov- issuer may request that OPM’s recon- erage that are applicable to a QHP of- sideration allow a representative of the fered on the Exchange on which the MSP issuer to appear personally before MSP option was offered, including a re- OPM. quirement to provide advance written (4) A request under this section must notice before the coverage will be dis- include a detailed statement of the rea- continued. If a State or Exchange does sons that the MSP issuer disagrees not have requirements about advance with OPM’s imposition of the compli- notice to enrollees, the MSP issuer ance action, and may include any addi- must inform current MSP enrollees in tional information that will assist writing of the discontinuance of the OPM in rendering a final decision MSP option no later than 90 days prior under this section. to discontinuing the MSP option, un- (5) OPM may obtain additional infor- less OPM determines that there is good mation relevant to the request from cause for less than 90 days’ notice. any source as it may, in its judgment, (e) Definition. As used in this subpart, deem necessary. OPM will provide the ‘‘termination’’ means a decision by MSP issuer with a copy of any addi- OPM to cancel an MSP Program con- tional information it obtains and pro- tract prior to the end of its contract vide an opportunity for the MSP issuer term. The term includes OPM’s with- to respond (including by submitting ad- drawal of approval of an MSP Program ditional information or explanation). contract. (6) OPM’s reconsideration and hearing, if requested, may be conducted by § 800.405 Reconsideration of compliance actions. the Director or a representative designated by the Director who did not (a) Right to request reconsideration. An participate in the initial decision that MSP issuer may request that OPM re- is the subject of the request for review. consider a determination to impose one (c) Notice of final decision. OPM will of the following compliance actions: notify the MSP issuer, in writing, of (1) Withdrawal of the certification of OPM’s final decision on the MSP the MSP option or options offered on issuer’s request for reconsideration and one or more Exchanges; the specific reasons for that final deci- (2) Nonrenewal of participation sion. OPM’s written decision will con- (3) Nonrenewal of contract; or stitute final agency action that is sub- (4) Termination of the MSP Program ject to review under the Administra- contract. tive Procedure Act in the appropriate

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U.S. district court. Such review is lim- with 45 CFR 147.136(e), and are subject ited to the record that was before OPM to review and approval by OPM. when it made its decision. (c) Issuer obligation. An MSP issuer must pay a claim or provide a health- Subpart F—Appeals by Enrollees related service or supply pursuant to of Denials of Claims for Pay- OPM’s final decision or the final deci- ment or Service sion of an independent review organization without delay, regardless of § 800.501 General requirements. whether the plan or issuer intends to (a) Definitions. For purposes of this seek judicial review of the external re- subpart: view decision and unless or until there (1) Adverse benefit determination has is a judicial decision otherwise. the meaning given that term in 45 CFR § 800.504 Judicial review. 147.136(a)(2)(i). (2) Claim means a request for: (a) OPM’s written decision under the (i) Payment of a health-related bill; external review process established or under § 800.503(a) of this part will con- (ii) Provision of a health-related stitute final agency action that is sub- service or supply. ject to review under the Administra- (b) Applicability. This subpart applies tive Procedure Act in the appropriate to enrollees and to other individuals or U.S. district court. A decision made by entities who are acting on behalf of an an independent review organization enrollee and who have the enrollee’s under the process established under specific written consent to pursue a § 800.503(a) is not within OPM’s discre- remedy of an adverse benefit deter- tion and therefore is not final agency mination. action. (b) Judicial review under paragraph § 800.502 MSP issuer internal claims (a) of this section is limited to the and appeals. record that was before OPM when OPM (a) Processes. MSP issuers must com- made its decision. ply with the internal claims and appeals processes applicable to group health plans and health insurance Subpart G—Miscellaneous issuers under 45 CFR 147.136(b). § 800.601 Reservation of authority. (b) Timeframes and notice of determination. An MSP issuer must provide writ- OPM reserves the right to implement ten notice to an enrollee of its deter- and supplement these regulations with mination on a claim brought under written operational guidelines. paragraph (a) of this section according to the timeframes and notification § 800.602 Consumer choice with re- rules under 45 CFR 147.136(b) and (e), spect to certain services. including the timeframes for urgent (a) Assured availability of varied cov- claims. If the MSP issuer denies a erage. Consistent with § 800.104 of this claim (or a portion of the claim), the part, OPM will ensure that at least one enrollee may appeal the adverse ben- of the MSP issuers on each Exchange efit determination to the MSP issuer in in each State offers at least one MSP accordance with 45 CFR 147.136(b). option that does not provide coverage of services described in section § 800.503 External review. 1303(b)(1)(B)(i) of the Affordable Care (a) External review by OPM. OPM will Act. conduct external review of adverse ben- (b) State opt-out. An MSP issuer may efit determinations using a process not offer abortion coverage in any similar to OPM review of disputed State where such coverage of abortion claims under 5 CFR 890.105(e), subject services is prohibited by State law. to the standards and timeframes set (c) Notice to Enrollees—(1) Notice of ex- forth in 45 CFR 147.136(d). clusion. The MSP issuer must provide (b) Notice. Notices to MSP enrollees notice to consumers prior to enroll- regarding external review under para- ment that non-excepted abortion serv- graph (a) of this section must comply ices are not a covered benefit in the

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form, manner, and timeline prescribed § 800.603 Disclosure of information. by OPM. (a) Disclosure to certain entities. OPM (2) Notice of coverage. If an MSP issuer may provide information relating to chooses to offer an MSP option that the activities of MSP issuers or State- covers non-excepted abortion services, level issuers to a State Insurance Com- in addition to an MSP option that does missioner or Director of a State-based not cover non-excepted abortion serv- Exchange. ices, the MSP issuer must provide no- (b) Conditions of when to disclose. OPM tice to consumers prior to enrollment shall only make a disclosure described that non-excepted abortion services are in this section to the extent that such a covered benefit. An MSP issuer must disclosure is: provide notice in a manner consistent (1) Necessary or appropriate to per- with 45 CFR 147.200(a)(3), to meet the mit OPM’s Director, a State Insurance requirements of 45 CFR 156.280(f). OPM Commissioner, or Director of a State- may provide guidance on the form, based Exchange to administer and en- manner, and timeline for this notice. force laws applicable to an MSP issuer (3) OPM review and approval of notices. or State-level issuer over which it has OPM may require an MSP issuer to jurisdiction, or submit to OPM such notices. OPM re- (2) Otherwise in the best interests of serves the right to review and approve enrollees or potential enrollees in MSP options. these consumer notices to ensure that (c) Confidentiality of information. OPM an MSP issuer complies with Federal will take appropriate steps to cause the and State laws, and the standards pre- recipient of this information to prescribed by OPM with respect to serve the information as confidential. § 800.602. PARTS 801–899 [RESERVED]

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Part Page 900 National Environmental Policy Act implementing procedures ...... 307 901–999 [Reserved]

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protection and enhancement of envi- § 900.104 Federal and intergovern- ronmental quality (see NEPA section mental relationships. 101 and 40 CFR 1508.14). In particular The Denali Commission was created the Commission will consider potential to deliver the services of the federal effects on subsistence activities, which government in the most cost-effective are critically important to the daily manner practicable. In order to reduce existence of Alaska Native villages. administrative and overhead costs, the § 900.103 Terms and abbreviations. Commission partners with federal, state and local agencies and Alaska (a) For the purposes of this part, the Native villages and commonly depends definitions in the CEQ Regulations, 40 on these governmental agencies for CFR parts 1500 through 1508, are adopt- project management. Consequently, ed and supplemented as set out in para- the Commission generally relies on the graphs (a)(1) through (5) of this section. expertise and processes already in use In the event of a conflict the CEQ Reg- by partnering agencies to help prepare ulations apply. Commission NEPA analyses and docu- (1) Action. Action and Federal action ments. as defined in 40 CFR 1508.18, include (a) With federal partners, the Com- projects, programs, plans, or policies, mission will work as either a joint lead subject to the Commission’s control agency (40 CFR 1501.5 and 1508.16) or co- and responsibility. operating agency (40 CFR 1501.6 and (2) Applicant. The federal, state, local 1508.5). The Commission may invite government or non-governmental part- other Federal agencies to serve as the ner or organization applying to the lead agency, a joint lead agency, or as Commission for financial assistance or a cooperating agency. other approval. An applicant may also (b) Consistent with 40 CFR 1508.5, the be a partner organization in receipt of Commission will typically invite Alas- award funds. ka Native villages and state and local (3) Approving Official. The Denali government partners to serve as co- Commission staff member designated operating agencies. by the Federal Co-Chair or his/her designee to fulfill the responsibilities de- (c) Requests for the Commission to fined in § 900.106, including overseeing serve as a lead agency (40 CFR development of and approval of the 1501.5(d)), for CEQ to determine which NEPA document. Federal agency shall be the lead agen- (4) Commission proposal (or proposal). cy (40 CFR 1501.5(e)), or for the Com- A proposal, as defined at 40 CFR 1508.23, mission to serve as a cooperating agen- is a Commission proposal whether ini- cy (40 CFR 1501.6(a)(1)) shall be mailed tiated by the Commission, another fed- to the Commission office. eral agency, or an applicant. § 900.105 Applicant responsibility. (5) Federal Co-Chair. One of the seven members of the Commission, appointed (a) Applicants shall work under Com- by the Secretary of Commerce, as de- mission direction provided by the Ap- fined in the Denali Commission Act of proving Official, and assist the Com- 1998, 42 U.S.C. 3121, Public Law 105–277. mission in fulfilling its NEPA obliga- (b) The following abbreviations are tions by preparing NEPA analyses and used throughout this part: documents that comply with the provi- (1) CATEX—Categorical exclusions; sions of NEPA (42 U.S.C. 4321–4347), the (2) CEQ—Council on Environmental CEQ Regulations (40 CFR parts 1500 Quality; through 1508), and the requirements set (3) EA—Environmental assessment; forth in this part. (4) EIS—Environmental impact state- (b) Applicants shall follow Commis- ment; sion direction when they assist the (5) FONSI—Finding of no significant Commission with the following respon- impact; sibilities, among others: (6) NEPA—National Environmental (1) Prepare and disseminate applica- Policy Act of 1969, as amended; ble environmental documentation con- (7) NOI—Notice of intent; and current with a proposal’s engineering, (8) ROD—Record of decision. planning, and design;

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(2) Create and distribute public no- § 900.108 Public involvement. tices; (a) When public involvement is re- (3) Coordinate public hearings and quired pursuant to subparts C and D of meetings as required; this part, interested persons and the af- (4) Submit all environmental docu- fected public shall be provided notice ments created pursuant to this part to of the availability of environmental the Commission for review and ap- documents, NEPA-related hearings, proval before public distribution; and public meetings. Such notice will (5) Participate in all Commission- be made on the Commission Web site conducted hearings or meetings; and other means such that the commu- (6) Consult with the Commission nity is notified (e.g., community post- prior to obtaining the services of an en- ings, newspaper, radio or television). vironmental consultant; in the case (b) Applicants shall assist the Com- that an EIS is required, the consultant mission in providing the opportunity or contractor will be selected by the for public participation and consid- Commission; and ering the public comments on the pro- (7) Implement mitigation measures posal as described in subparts C and D included as voluntary commitments by of this part. the applicant or as requirements of the (c) Interested persons can obtain in- applicant in environmental documents. formation or status reports on EISs and other elements of the NEPA proc- § 900.106 Denali Commission responsi- ess from the Commission’s office at 510 bility. L Street, Suite 410; Anchorage, Alaska (a) The Federal Co-Chair or his/her 99501; or on the Commission Web site at designee shall designate an Approving http://www.denali.gov. Telephone: (907) Official for each Commission proposal, 271–1414. The Commission will provide and shall provide environmental guid- hard copies of NEPA documents to gov- ance to the Approving Official; ernmental and/or tribal entities in the (b) The Approving Official shall pro- affected communities. vide direction and guidance to the ap- (d) In the interests of national secu- plicant as well as identification and de- rity or the public health, safety, or velopment of required analyses and welfare, the Commission may reduce documentation; any time periods that the Commission (c) The Approving Official shall make has established and that are not re- an independent evaluation of the envi- quired by the CEQ Regulations. The ronmental issues, take responsibility Commission shall publish a notice on for the scope and content of the envi- the Web site at http://www.denali.gov ronmental document (EA or EIS), and and notify interested parties (see 40 make the environmental finding; CFR 1506.6) specifying the revised time (d) The Approving Official shall en- periods for the proposed action and the sure mitigation measures included in rationale for the reduction. environmental documents are implemented; and Subpart B—Environmental Review (e) The Approving official shall be re- Procedures sponsible for coordinating communications with cooperating agencies and § 900.201 Environmental review proc- other federal agencies. ess. (a) General. The environmental re- § 900.107 Role of lead and cooperating view process is the investigation of po- agencies. tential environmental impacts to de- In accordance with § 900.104, the Com- termine the environmental process to mission may defer the lead agency role be followed and to assist in the prepa- to other federal agencies in accordance ration of the environmental document. with 40 CFR 1501.5, and the Commission (b) Early coordination. Applicants will will then exercise its role as either a contact the Commission and work with joint lead or a cooperating agency in the Approving Official to begin the en- accordance with 40 CFR 1501.6. vironmental review process as soon as

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Denali Commission assistance is pro- meet the requirements of these NEPA jected. Environmental issues shall be implementing procedures and CEQ identified and considered early in the Regulations pertaining to EAs. Alter- proposal planning process. A system- native arrangements should focus on atic, interdisciplinary approach that minimizing adverse environmental im- includes community involvement and pacts of the proposed action and the intergovernmental coordination to ex- emergency. To the maximum extent pand the potential sources of informa- practicable, these alternative arrange- tion and identify areas of concern will ments should include the content, be used. Environmental permits and interagency coordination, and public other forms of approval, concurrence, notification and involvement that or consultation may be required. The would normally be undertaken for an planning process shall include permit- EA for the action at issue and cannot ting and other review processes to en- alter the requirements of the CEQ Reg- sure that necessary information will be ulations at 40 CFR 1508.9(a)(1) and (b). collected and provided to permitting The Federal Co-Chair may grant an al- and reviewing agencies in a timely ternative arrangement. Any alter- manner. native arrangement shall be documented. The Federal Co-Chair will in- § 900.202 Emergency actions. form CEQ of the alternative arrange- (a) General. Emergency cir- ments at the earliest opportunity. cumstances may require immediate ac- (d) Environmental Impact Statement tions that preclude following standard (EIS). Where emergency circumstances NEPA processes. The Council shall make it necessary to take actions with limit alternative arrangements to significant environmental impacts those actions that are necessary to without observing other provisions of control the immediate impacts of the these NEPA implementing procedures emergency. In the event of emergency and the CEQ Regulations (see 40 CFR circumstances, the Approving Official 1506.11) the Federal Co-Chair may con- should coordinate with the Federal Co- sult with CEQ about alternative ar- Chair as soon as practicable. Imme- rangements for implementation of diate emergency actions necessary to NEPA. In these situations, the Com- protect the lives and safety of the pub- mission may reduce processing times lic or prevent adverse impacts to eco- or, if the emergency situation war- logical resources and functions should rants, abbreviate its preparation and never be delayed in order to comply processing of EISs. Any request for al- with these NEPA procedures. Alter- ternative arrangements must be sub- native arrangements for NEPA compli- mitted by the Federal Co-Chair to CEQ ance are permitted for emergency ac- and notice of a potential request tions pursuant to paragraphs (b) should be provided to CEQ at the ear- through (d) of this section. liest opportunity. For projects under- (b) Categorical exclusion (CATEX). taken by an applicant, the Approving When emergency circumstances make Official will inform the Federal Co- it necessary to determine whether an Chair about the emergency. The Fed- extraordinary circumstance would pre- eral Co-Chair will consult CEQ request- clude the use of a CATEX, the Approv- ing the alternative arrangements for ing Official shall make the determina- complying with NEPA. tion as soon as practicable. If an extraordinary circumstance exists, the § 900.203 Determination of federal ac- Approving Official shall comply with tions. paragraphs (c) and (d) of this section, (a) The Commission shall determine as applicable. whether any Commission proposal: (c) Environmental assessment (EA). (1) Is categorically excluded from When emergency circumstances make preparation of either an EA or an EIS; it necessary to take an action that re- (2) Requires preparation of an EA; or quires an EA before the EA can be com- (3) Requires preparation of an EIS. pleted, the Approving Official will con- (b) Notwithstanding any other provi- sult with the Federal Co-Chair to de- sion of this part, the Commission may velop alternative arrangements to prepare a NEPA document to assist

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any Commission action at any time in (c) Extraordinary circumstances. Any order to further the purposes of NEPA. action that normally would be classi- This NEPA document may be done to fied as a CATEX but could involve ex- analyze the consequences of ongoing traordinary circumstances will require Commission activities, to support appropriate environmental review doc- Commission planning, to assess the umented in a Denali Commission need for mitigation, to disclose fully CATEX checklist to determine if the the potential environmental con- CATEX classification is proper or if an sequences of Commission actions, or EA or EIS should be prepared. Extraor- for any other reason. Documents pre- dinary circumstances to be considered pared under this paragraph shall be include those likely to: prepared in the same manner as Com- (1) Have a reasonable likelihood of mission documents prepared under this significant impacts on public health, part. public safety, or the environment; § 900.204 Categorical exclusions. (2) Have effects on the environment that are likely to be highly controver- (a) General. A categorical exclusion sial or involve unresolved conflicts (CATEX) is defined in 40 CFR 1508.4 as concerning alternative uses of avail- a category of actions which do not in- able resources; dividually or cumulatively have a significant effect on the human environ- (3) Have possible effects on the ment and, for which in the absence of human environment that are highly extraordinary circumstances or sen- uncertain, involve unique or unknown sitive resources, neither an EA nor an risks, or are scientifically controver- EIS is required. Actions that meet the sial; conditions in paragraph (b) of this sec- (4) Establish a precedent for future tion and are listed in section A of ap- action or represent a decision in prin- pendix A of this part can be categori- ciple about future actions with poten- cally excluded from further analysis tially significant environmental ef- and documentation in an EA or EIS. fects; Actions that meet the screening condi- (5) Relate to other actions with indi- tions in paragraph (b) of this section vidually insignificant but cumulatively and are listed in section B of appendix significant environmental effects; A require satisfactory completion of a (6) Have a greater scope or size than Denali Commission CATEX checklist is normal for the category of action; in order to be categorically excluded (7) Have the potential to degrade al- from further analysis and documenta- ready existing poor environmental con- tion in an EA or EIS. ditions or to initiate a degrading influ- (b) Conditions. The following three ence, activity, or effect in areas not al- conditions must be met for an action ready significantly modified from their to be categorically excluded from fur- natural condition; ther analysis in an EA or EIS. (8) Have a disproportionately high (1) The action has not been seg- and adverse effect on low income or mented (too narrowly defined or bro- minority populations (see Executive ken down into small parts in order Order 12898); minimize its potential effects and avoid a higher level of NEPA review) (9) Limit access to and ceremonial and its scope includes the consider- use of Indian sacred sites on federal ation of connected actions and, when lands by Indian religious practitioners evaluating extraordinary cir- or adversely affect the physical integ- cumstances, cumulative impacts. rity of such sacred sites (see Executive (2) No extraordinary circumstances Order 13007); described in paragraph (c) of this sec- (10) Threaten a violation of a federal, tion exist, unless resolved through tribal, state or local law or require- other regulatory means. ment imposed for the protection of the (3) One categorical exclusion de- environment; scribed in either section of appendix A (11) Have a reasonable likelihood of of this part encompasses the proposed significant impact to subsistence ac- action. tivities; or

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(12) Have a reasonable likelihood of § 900.207 Programmatic environmental significant impacts on environ- reviews. mentally sensitive resources, such as: (a) A programmatic NEPA review is (i) Properties listed, or eligible for used to assess the environmental im- listing, in the National Register of His- pacts of a proposed action that is broad toric Places; in reach, such as a program, plan, or (ii) Species listed, or proposed to be policy (see 40 CFR 1502.4). Analyses of listed, on the List of Endangered or subsequent actions that fall within the Threatened Species, or their habitat; program, plan, or policy may be tiered or to the programmatic review, as de- (iii) Natural resources and unique ge- scribed in 40 CFR 1502.20 and 1508.28. ographic characteristics such as his- (b) Programmatic NEPA reviews may toric or cultural resources; park, recre- take the form of a programmatic EA or ation or refuge lands; wilderness areas; a programmatic EIS. wild or scenic rivers; national natural (c) A programmatic EA shall meet all landmarks; sole or principal drinking of the requirements for EAs in subpart C of this part, including those for con- water aquifers; prime farmlands; spe- tent and public involvement. In order cial aquatic sites (defined under Sec- to adopt a programmatic EA prepared tion 404 of the Clean Water Act); by another agency that did not provide floodplains; national monuments; and the same public involvement opportu- other ecologically significant or crit- nities as the Commission, the Commis- ical areas. sion shall provide notice of the availability of the programmatic EA and § 900.205 Environmental assessment. make it available for public comment (a) An EA is required for all pro- consistent with § 900.303(b) and (c) be- posals, except those exempt from fore adopting it. NEPA or categorically excluded under (d) A programmatic EIS shall meet this part, and those requiring or deter- all of the requirements for EISs in sub- mined to require an EIS. EAs provide part D of this part and in 40 CFR parts sufficient evidence and analysis to de- 1500 through 1508. termine whether to prepare an EIS or a finding of no significant impact Subpart C—Environmental (FONSI). Assessments (b) In addition, an EA may be prepared on any action at any time in § 900.301 Content. order to assist in planning and decision (a) An EA shall include brief discus- making, to aid in the Commission’s sions of the need for the proposal; of al- compliance with NEPA when no EIS is ternatives to the proposal as required necessary, or to facilitate EIS prepara- by NEPA section 102(2)(E); and of the tion. environmental impacts of the proposal (c) EAs shall be prepared in accord- and alternatives. The EA shall also in- ance with subpart C of this part and clude a listing of agencies and persons shall contain analyses to support con- consulted in the preparation of the EA. clusions regarding environmental im- (b) An EA may describe a broad range pacts. If a FONSI is proposed, it shall of alternatives and proposed mitiga- be prepared in accordance with tion measures to facilitate planning and decisionmaking. § 900.305. (c) The EA should also document § 900.206 Environmental impact state- compliance, to the extent possible, ment. with all applicable environmental laws and Executive Orders, or provide rea- An EIS is required when the project sonable assurance that those require- is determined to have a potentially sig- ments can be met. nificant impact on the human environ- (d) The EA should be a concise public ment. EISs shall be prepared in accord- document. The level of detail and ance with subpart D of this part. depth of impact analysis will normally be limited to the minimum needed to

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determine the significance of potential § 900.304 Actions resulting from as- environmental effects. sessment. (a) Accepted without modification. The § 900.302 General considerations in preparing environmental assess- Commission may accept a proposal ments. without modifications if the EA indicates that the proposal does not have (a) Adoption of an EA. The Commis- significant environmental impacts and sion may adopt an EA prepared for a a FONSI is prepared in accordance with proposal before the Commission by an- § 900.305. other agency or an applicant when the (b) Accepted with modification. If an EA, or a portion thereof, addresses the EA identifies potentially significant proposed Commission action and meets environmental impacts, the proposal the standards for an adequate analysis may be modified to eliminate such im- under this part and relevant provisions pacts. Proposals so modified may be ac- of 40 CFR parts 1500 through 1508, pro- cepted by the Commission if the provided that the Commission makes its posed changes are evaluated in an EA own evaluation of the environmental and a FONSI is prepared in accordance issues and takes responsibility for the with § 900.305. scope and content of the EA in accord- (c) Mitigated FONSI. If mitigation is ance with 40 CFR 1506.5(b). required to reduce the impacts below (b) Incorporation by reference into the significant the FONSI shall identify EA. Any document may be incor- the mitigation and describe applicable porated by reference in accordance monitoring and enforcement measures with 40 CFR 1502.21 and used in pre- intended to ensure the implementation paring an EA in accordance with 40 of the mitigation measures. CFR 1501.4(e) and 1506.5(a), provided (d) Prepare an EIS. The Commission that the Commission makes its own shall require that the proposal be eval- evaluation of the environmental issues uated in an EIS, prepared in accord- and takes responsibility for the scope ance with subpart D to this part, if the and content of the EA in accordance EA indicates significant environmental with 40 CFR 1506.5(b). impacts that cannot be mitigated below a specified level of significance. § 900.303 Public involvement. (e) Rejected. The Commission may al- (a) Commission approval is required ways elect to reject a proposal. before an EA is made available to the public and the notice of availability is § 900.305 Findings of no significant im- published. pact. (b) The public shall be provided no- (a) Definition. Finding of no signifi- tice of the availability of EAs and draft cant impact (FONSI) means a docu- FONSIs in accordance with 40 CFR ment by the Commission briefly pre- 1506.6 and § 900.108(a) by the Approving senting the reasons why an action, not Official. The Approving Official is re- otherwise excluded as provided in sponsible for making the EA available § 900.204, will not have a significant im- for public inspection and will provide pact on the human environment and hard copies on request to the affected for which an EIS will not be prepared. units of Alaska Native/American In- (b) Applicant responsibility. The appli- dian tribal organizations and/or local cant shall assist the Commission with government. preparing the EA. The Commission re- (c) EAs and draft FONSIs will be mains responsible for compiling the available for public comment for not public hearing summary or minutes, less than 15 calendar days but may be where applicable; and copies of any published for a longer period of time as written comments received and re- determined by the Approving Official. sponses thereto. (d) Final Commission action will be (c) Content. A FONSI shall include taken after public comments received the EA or a summary of it and shall on an EA and draft FONSI are reviewed note any other environmental docu- and considered. ments related to it (40 CFR 1501.7(a)(5)).

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If the assessment is included, the find- straints, potential timeframes for the ing need not repeat any of the discus- environmental review, and federal, sion in the assessment but may incor- state, or tribal entities that could be porate it by reference. interested in the project, including (d) Publication. The Commission shall those with the potential to become co- make the final FONSI available to the operating agencies. Through the NOI, public on the Commission Web site. the Commission shall invite comments (e) Special circumstances. The FONSI and suggestions on the scope of the notice of availability will be made EIS. available for public review (including (b) Publication of the NOI in the FED- State and areawide clearinghouses) for ERAL REGISTER shall begin the public 30 days before the Commission makes scoping process. The public scoping its final determination whether to pre- process for a Commission EIS shall pare an environmental impact state- allow a minimum of 30 days for the re- ment and before the action may begin ceipt of public comments. (40 CFR 1501.4(e)(2)) where: (1) The proposed action is, or is close- § 900.402 Preparation and filing of ly similar to, one which normally re- draft and final EISs. quires the preparation of an environ- (a) General. Except for proposals for mental impact statement under legislation as provided for in 40 CFR § 900.405; or 1506.8, EISs shall be prepared in two (2) The nature of the proposed action stages and may be supplemented. is one without precedent. (b) Format. The EIS format recommended by 40 CFR 1502.10 shall be § 900.306 Proposals normally requiring an EA. used unless a determination is made on a particular project that there is a Proposals that normally require compelling reason to do otherwise. In preparation of an EA include the fol- such a case, the EIS format must meet lowing: the minimum requirements prescribed (a) Initial field demonstration of a in 40 CFR 1502.10, as further described new technology; and in 40 CFR 1502.11 through 1502.18. (b) Field trials of a new product or (c) Applicant role. The draft or final new uses of an existing technology. EIS shall be prepared by the Commis- sion with assistance from the applicant Subpart D—Environmental Impact under appropriate guidance and direc- Statements tion from the Approving Official. (d) Third-party consultants. A third- § 900.401 Notice of intent and scoping. party consultant selected by the Com- (a) The Commission shall publish a mission or in cooperation with a co- NOI, as described in 40 CFR 1508.22, in operating agency may prepare the the FEDERAL REGISTER as soon as prac- draft or final EIS. ticable after a decision is made to pre- (e) Commission responsibility. The pare an EIS, in accordance with 40 CFR Commission shall provide a schedule 1501.7. If there will be a lengthy period with time limits, guidance, participate of time between the Commission’s deci- in the preparation, independently sion to prepare an EIS and its actual evaluate, and take responsibility for preparation, the Commission may defer the content of the draft and final EIS. publication of the NOI until a reason- (f) Filing. After a draft or final EIS able time before preparing the EIS, has been prepared, the Commission provided that the Commission allows a shall file the EIS with the Environ- reasonable opportunity for interested mental Protection Agency (EPA). The parties to participate in the EIS proc- EPA will publish a notice of avail- ess. Consistent with § 900.201(b), the ability in accordance with 40 CFR Commission and the applicant will co- 1506.9 and 1506.10. ordinate during the time period prior (g) Draft to final EIS. When a final to the publication of the NOI to iden- EIS does not require substantial tify: the scope of the action, potential changes from the draft EIS, the Com- modifications to the proposal, poten- mission may document required tial alternatives, environmental con- changes in errata sheets, insertion

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pages, and revised sections. The Com- treat the statement as a draft and remission will then circulate such circulate it except as provided in para- changes together with comments on graph (c) of this section. the draft EIS, responses to comments, (c) Where the Commission is a co- and other appropriate information as operating agency, it may adopt the EIS its final EIS. The Commission will not of the lead agency without recircu- circulate the draft EIS again; however, lating it when, after an independent re- the Commission will post the EIS on view of the EIS, the Commission con- its Web site and provide the draft EIS cludes that its comments and sugges- if requested. tions have been satisfied. (h) Record of decision. A record of de- (d) When the Commission adopts an cision (ROD) will be prepared in ac- EIS which is not final within the agen- cordance with 40 CFR 1505.2. cy that prepared it, or when the action it assesses is the subject of a referral § 900.403 Supplemental EIS. under 40 CFR part 1504, or when the (a) Supplements to either draft or EIS’s adequacy is the subject of a judi- final EISs shall be prepared, as pre- cial action which is not final, the Com- scribed in 40 CFR 1502.9, when the Com- mission shall so specify. mission finds that there are substantial changes are proposed in a project § 900.405 Proposals normally requiring that are relevant to environmental an EIS. concerns; or when there are significant An EIS will normally be required for: new circumstances or information rel- (a) Large scale infrastructure con- evant to environmental concerns and struction efforts such as the relocation bearing on the proposed action or its of an entire community; impacts. (b) A project that requires a formal (b) Where Commission action re- consultation under Section 7 of the En- mains to be taken and the EIS is more dangered Species Act; or than three years old, the Commission (c) Where implementation of the pro- will review the EIS to determine posal may directly cause or induce whether it is adequate or requires sup- changes that significantly: plementation. (1) Displace population; (c) The Commission shall prepare, (2) Alter the character of existing circulate and file a supplement to an residential areas; or EIS in the same fashion (exclusive of (3) Adversely affect a floodplain. scoping) as a draft and final EIS. In ad- PPENDIX A TO PART 900—CATEGORICAL dition, the supplement and accom- A EXCLUSIONS panying administrative record shall be included in the administrative record A. General Categorical Exclusions for the proposal. When an applicant is Actions consistent with any of the fol- involved, the applicant shall, under the lowing categories are, in the absence of ex- direction of the approving official, pro- traordinary circumstances, categorically ex- vide assistance. cluded from further analysis in an EA or (d) An NOI to prepare a supplement EIS: to a final EIS will be published in those A1. Routine administrative and manage- cases where a ROD has already been ment activities including, but not limited to, issued. those activities related to budgeting, finance, personnel actions, procurement ac- § 900.404 Adoption. tivities, compliance with applicable executive orders and procedures for sustainable or (a) The Commission may adopt a ‘‘greened’’ procurement, retaining legal draft or final EIS or portion thereof counsel, public affairs activities (e.g., issuing (see 40 CFR 1506.3), including a pro- press releases, newsletters and notices of grammatic EIS, prepared by another funding availability), internal and external agency. program evaluation and monitoring (e.g., (b) If the actions covered by the site visits), database development and maintenance, and computer systems administra- original EIS and the proposal are sub- tion. stantially the same, the Commission A2. Routine activities that the Commis- shall recirculate it as a final state- sion does to support its program partners ment. Otherwise, the Commission shall and stakeholders, such as serving on task

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forces, ad hoc committees or representing tion and energy efficiency related improve- Commission interests in other forums. ments, HVAC renovations, painting, floor A3. Approving and issuing grants for ad- system replacement, repaving parking lots ministrative overhead support. and ground maintenance, that do not result A4. Approving and issuing grants for social in a change in the functional use of the real services, education and training programs, property. including but not limited to support for Head B2. Engineering studies and investigations Start, senior citizen programs, drug treat- that do not permanently change the environment programs, and funding internships, ex- ment. cept for projects involving construction, ren- B3. Construction or lease of new infra- ovation, or changes in land use. structure including, but not limited to, A5. Approving and issuing grants for facil- health care facilities, community buildings, ity planning and design. housing, and bulk fuel storage and power A6. Nondestructive data collection, inven- generation plants, where such lease or con- tory, study, research, and monitoring activi- struction: ties (e.g., field, aerial and satellite surveying (a) Is at the site of existing infrastructure and mapping). and capacity is not substantially increased; A7. Research, planning grants and tech- or nical assistance projects that are not reason- (b) Is for infrastructure of less than 12,000 ably expected to commit the federal govern- square feet of useable space when less than ment to a course of action, to result in legis- two aces of surface land area are involved at lative proposals, or to result in direct devel- a new site. opment. B4. Construction or modification of elec- A8. Acquisition and installation of equip- tric power stations or interconnection facili- ment including, but not limited to, EMS, ties (including, but not limited to, switching emergency and non-expendable medical stations and support facilities). equipment (e.g., digital imaging devices and B5. Construction of electric powerlines ap- dental equipment), and communications proximately ten miles in length or less, or equipment (e.g., computer upgrades). approximately 20 miles in length or less within previously disturbed or developed B. Program Categorical Exclusions powerline or pipeline rights-of-way. B6. Upgrading or rebuilding approximately Actions consistent with any of the fol- twenty miles in length or less of existing lowing categories are, in the absence of ex- electric powerlines, which may involve traordinary circumstances, categorically ex- minor relocations of small segments or the cluded from further analysis and documenta- powerlines. tion in an EA or EIS upon completion of the B7. Demolition, disposal, or improvements Denali Commission CATEX checklist: involving buildings or structures when done B1. Upgrade, repair, maintenance, replace- in accordance with applicable regulations, ment, or minor renovations and additions to including those regulations applying to re- buildings, roads, harbors and other maritime moval of asbestos, polychlorinated biphenyls facilities, grounds, equipment, and other fa- (PCBs), and other hazardous materials. cilities, including but not limited to, roof replacement, foundation repair, ADA access ramp and door improvements, weatheriza- PARTS 901–999 [RESERVED]

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Part Page 1000 Individual development account reserve funds established pursuant to Grants for Assets for Inde- pendence ...... 319 1050 Charitable choice under the Community Services Block Grant Act programs ...... 319 1080 Emergency Community Services Homeless Grant Program ...... 321 1081–1099 [Reserved]

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§ 1000.2 Definitions. [66 FR 48972, Sept. 25, 2001, as amended at 67 FR 19518, Apr. 22, 2002] Individual Development Account means a trust or custodial account created or § 1000.3 Requirements. organized in the United States exclu- (a) A qualified entity, other than a sively for the purpose of paying the State or local government agency or qualified expenses of an eligible indi- tribal government, shall establish a vidual, as defined in section 404(2) of Reserve Fund for use in the Assets for Pub. L. 105–285, or enabling the eligible Independence program. Each reserve individual to make an emergency with- fund established by a qualified entity, drawal as defined in section 404(3) of other than a State or local government Pub. L. 105–385. The written governing agency or tribal government, is subject instrument creating the trust or custo- to the Department of Health and dial account must meet the require- Human Services’ uniform administra- ments of Section 404(5) of Pub. L. 105– tive requirements under 45 CFR part 285, and of the Project Eligibility Re- 75. quirements set forth in Program An- (b) Any reserve fund established by a nouncements. qualified entity that is a State or local Qualified Entity means one or more government agency or tribal govern- not-for-profit organizations described ment is subject to the Department of in section 501(c)(3) of the Internal Rev- Health and Human Services’ uniform enue Code of 1986 and exempt from tax- administrative requirements under 45 ation under section 501(a) of such Code; CFR part 75. or a State or local government agency; or a tribal government which has sub- [66 FR 48972, Sept. 25, 2001, as amended at 81 FR 3021, Jan. 20, 2016] mitted an application under section 405 of Pub. L. 105–285 jointly with a 501(c)(3) organization that is exempt PART 1050—CHARITABLE CHOICE from taxation under 501(a) of the Inter- UNDER THE COMMUNITY SERV- nal Revenue Code of 1986; or an entity ICES BLOCK GRANT ACT PRO- that is a credit union designated as a GRAMS low-income credit union by the Na- tional Credit Union Administration Sec. (NCUA), or an organization designated 1050.1 Scope. as a community development financial 1050.2 Definitions. institution by the Secretary of the 1050.3 What conditions apply to the Chari- table Choice provisions of the CSBG Act? Treasury (or Community Development Financial Institutions Fund), and can AUTHORITY: 42 U.S.C. 9901 et seq. demonstrate a collaborative relation- SOURCE: 68 FR 56469, Sept. 30, 2003, unless ship with a local community-based or- otherwise noted.

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§ 1050.1 Scope. contract, grant, or other agreement This part applies to programs author- with a Federal, State, or local govern- ized under the Community Services ment entity selects nongovernmental Block Grant Act (CSBG Act). Title 42 organizations to provide assistance U.S.C. 9901, 9913, 9920, 9921, 9922, 9923. under any of the programs authorized under the Community Services Block § 1050.2 Definitions. Grant Act. (a)(1) Religious organizations are eli- Applicable program means any pro- gible, on the same basis as any other gram authorized under Title II of the Community Opportunities, Account- organization, to participate in the ap- ability, and Training and Education plicable programs as long as they use Act of 1998, 42 U.S.C. 9901, et seq. program funds consistent with the Es- Direct funding, directly funded or fund- tablishment Clause and the Free Exer- ing provided directly means funding that cise Clause of the First Amendment to is provided to an organization directly the United States Constitution. by a governmental entity or an inter- (2) Neither the Federal government mediate organization that has the nor a State or local government receiv- same duties as a governmental entity, ing funds under an applicable program as opposed to funding that an organiza- shall discriminate against an organization receives as a result of the genuine tion that applies to provide, or pro- and independent private choice of a vides, services or benefits on the basis beneficiary. of the organization’s religious char- Intermediate organization means an or- acter or affiliation. ganization that is authorized by the (b) No program participant that re- terms of a contract, grant or other ceives direct funding under an applica- agreement with the Federal Govern- ble program may expend the program ment, or a State or local government, funds for inherently religious activi- to select other non-governmental orga- ties, such as worship, religious instruc- nizations to provide assistance under tion, or proselytization. If an organiza- an applicable program. For example, tion conducts such activities, it must when a State uses CSBG Act funds to offer them separately, in time or loca- pay for technical assistance services tion, from the programs or services di- provided by a private entity and also rectly funded under any applicable pro- authorizes that entity to subcontract gram, and participation must be vol- for a portion of the technical assist- untary for program beneficiaries. ance effort, the private entity is an in- (c) A religious organization that par- termediate organization. ticipates in an applicable program will Program beneficiary or recipient means retain its independence from Federal, an individual who receives services State, and local governments and may under a program funded in whole or continue to carry out its mission, in- part by an applicable program. cluding the definition, practice and ex- Program participant means a public or pression of its religious beliefs, pro- private entity that has received finan- vided that it does not expend any dicial assistance under an applicable pro- rect funding under the applicable program. gram to support any inherently religious activities, such as worship, reli- § 1050.3 What conditions apply to the gious instruction, or proselytization. Charitable Choice provisions of the Among other things, religious organi- CSBG Act? zations may use space in their facili- These Charitable Choice provisions ties to provide services funded under an apply whenever the Federal govern- applicable program without removing ment, or a State or local government, religious art, icons, scriptures, or other uses funds under the CSBG Act to pro- symbols. In addition, such a religious vide awards, contracts, or other assist- organization retains the authority over ance under any program authorized in its internal governance, and it may re- the Community Services Block Grant, tain religious terms in its organiza- 42 U.S.C. 9901, et seq. Additionally, tion’s name, select its board members these provisions apply whenever an in- on a religious basis, and include reli- termediate organization acting under a gious references in its organization’s

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mission statements and other gov- PART 1080—EMERGENCY COMMU- erning documents. NITY SERVICES HOMELESS GRANT (d) The participation of a religious PROGRAM organization in, or its receipt of funds from, an applicable program does not Sec. affect that organization’s exemption 1080.1 Scope. provided under 42 U.S.C. 2000e–1 regard- 1080.2 Definitions. ing employment practices. 1080.3 Allocation of funds. 1080.4 Eligible use of funds. (e) A religious organization that re- 1080.5 Application procedures for States. ceives funds under an applicable pro- 1080.6 Funding of alternative organizations. gram, shall not, in providing program 1080.7 Funding of Indian tribes. services or benefits, discriminate 1080.8 Reporting requirements. against a program beneficiary or pro- 1080.9 Other requirements. spective program beneficiary on the AUTHORITY: 42 U.S.C. 11302 (101 Stat. 485); 42 basis of religion or a religious belief. U.S.C. 11461–11464, 11472 (101 Stat. 532–533), as (f) Religious organizations that re- amended. ceive funds under an applicable pro- SOURCE: 54 FR 6372, Feb. 9, 1989, unless oth- gram are subject to the same regula- erwise noted. tions as other nongovernmental orga- § 1080.1 Scope. nizations to account, in accordance with generally accepted auditing and This part applies to the Emergency accounting principles, for the use of Community Services Homeless Grant such funds. In addition, religious orga- Program. nizations are required to keep any Fed- § 1080.2 Definitions. eral funds they receive for services segregated in a separate account from (a) Homeless or homeless individual includes: non-Federal funds. Only the segregated (1) An individual who lacks a fixed, government funds are subject to audit regular, and adequate nighttime resi- by the government under the applica- dence; and ble program. (2) An individual who has a primary (g) If a State or local government nighttime residence that is: contributes its own funds to supple- (i) A supervised publicly or privately ment CSBG Act funded activities, the operated shelter designed to provide State or local government has the op- temporary living accommodations (in- tion to segregate the Federal funds or cluding welfare hotels, congregate commingle them. However, if the funds shelters, and transitional housing for are commingled, the Charitable Choice the mentally ill); provisions apply to all of the commin- (ii) An institution that provides a gled funds. temporary residence for individuals in- (h) If a nongovernmental pass- tended to be institutionalized; or through entity, acting under a grant, (iii) A public or private place not de- contract, or other agreement with the signed for, or ordinarily used as, a reg- Federal, State or local government, is ular sleeping accommodation for given the authority to select non- human beings. governmental organizations to provide The term homeless or homeless individual services under an applicable program, does not include any individual impris- then the intermediate organization oned or otherwise detained pursuant to must ensure that the service provider an Act of the Congress or a State law. complies with these Charitable Choice (b) Indian tribe means any tribe, provisions and 45 CFR 87.1 and 87.3(i) band, nation, or other organized group through (l). The pass-through entity or community of Indians, including any Alaska Native village or regional retains all other rights of a nongovern- or village corporation (as defined in, or mental organization under the Chari- established pursuant to, the Alaska table Choice provisions. Native Claims Settlement Act), that is [68 FR 56469, Sept. 30, 2003, as amended at 81 recognized by the Federal Government FR 19428, Apr. 4, 2016] as eligible for special programs and

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services provided to Indians because of ments is due to a sudden reduction in their status as Indians. income; (c) State includes the 50 States, the (2) The assistance is necessary to District of Columbia, the Common- avoid the foreclosure, eviction, or ter- wealth of Puerto Rico, the Virgin Is- mination of utility services; and lands, Guam, American Samoa, the (3) There is a reasonable prospect Commonwealth of the Northern Mar- that the individual will be able to re- iana Islands, and the Republic of sume the payments within a reasonable Palau. period of time. (f) Provision of, or referral to, vio- § 1080.3 Allocation of funds. lence counseling for homeless children From the amounts made available and individuals, and the provision of under the Emergency Community violence counseling training to individ- Services Homeless Grant Program, the uals who work with homeless children Secretary shall make grants to States and individuals; and, that administer programs under the (g) Not more than 5 percent of the Community Services Block Grant Act amount received will be used to defray (42 U.S.C. 9901 et seq.), after taking into State administrative costs. account the amount set aside for In- [54 FR 6372, Feb. 9, 1989, as amended at 57 FR dian tribes in § 1080.7(a) of this chapter. 27946, June 23, 1992] Such grants shall be allocated to the States in accordance with the formula § 1080.5 Application procedures for set forth in subsections (a) and (b) of States. section 674 of such Act (42 U.S.C. 9903 (a) Each State requesting funds (a) and (b)). No funds shall be allocated under the Emergency Community under subsection (c) of section 674 of Services Homeless Grant Program such Act (42 U.S.C. 9903(c)). shall submit to the Office of Commu- nity Services an application for funds § 1080.4 Eligible use of funds. for each fiscal year, at a time estab- Amounts awarded under the Emer- lished by the Secretary. Approval must gency Community Services Homeless be requested of and received from the Grant Program may be used only for Office of Community Services before a the following purposes: State may implement changes to the (a) Expansion of comprehensive serv- information requested by paragraph (b) ices to homeless individuals to provide of this section after an application has follow-up and long-term services to been approved. help them make the transition out of (b) The application may be in any poverty; format, but must include a description (b) Renovation of buildings to be used of the agencies, organizations, and ac- to provide such services, except that tivities that the State intends to sup- not more than 50 percent of such port with the amounts received. In ad- amounts may be used for such purpose, dition, the application must include and provided that all procedures re- the following assurances, signed by the quired under the National Historic Governor or his/her designee: Preservation Act are followed; (1) The State will award not less than (c) Provision of assistance in obtain- 95 percent of the amounts it receives ing social and maintenance services to: and income support services for home- (i) Community action agencies and less individuals; other organizations that are eligible to (d) Promotion of private sector and receive amounts under section other assistance to homeless individ- 675(c)(2)(A) of the Community Services uals; and Block Grant Act (42 U.S.C. (e) After October 1, 1988, provision of 9904(c)(2)(A)); assistance to any individual who has (ii) Organizations serving migrant received a notice of foreclosure, evic- and seasonal farmworkers; and tion, or termination of utility services, (iii) Any organization to which a if— State, that applied for and received a (1) The inability of the individual to waiver from the Secretary under Pub- make mortgage, rental, or utility pay- lic Law 98–139, made a grant under the

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Community Services Block Grant Act nizations in the same proportion as (42 U.S.C. 9901 et seq.) for fiscal year funds distributed to those agencies and 1984; organizations by the State for the pre- (2) No amount received will be used vious fiscal year under the Community to supplant other programs for home- Services Block Grant Program (42 less individuals administered by the U.S.C. 9904(c)(2)(A)). State; (c) Agencies and organizations eligi- (3) Not more than 5 percent of the ble to be funded under this section amount received will be used to defray shall submit an application meeting State administrative costs; the requirements of §§ 1080.5(a) and (4) Every effort will be made to award 1080.5(b)(2), (3), (5), (6) and (7), at a time the funds within 60 days of their re- specified by the Secretary. If such an ceipt; agency or organization does not apply (5) Not more than 25 percent of the for or submit an approvable application amounts received will be used for the under this section, the funds that purpose described in § 1080.4(e) of these would have been allocated to them regulations; and shall be reallocated by the Secretary to (6) The State will have mechanisms the remaining eligible agencies and or- in place to assure coordination among ganizations on a pro rata basis. State and local agencies serving the [54 FR 6372, Feb. 9, 1989, as amended at 57 FR homeless. This will include coordina- 27946, June 23, 1992] tion at the State level with the agency responsible for developing the Com- § 1080.7 Funding of Indian tribes. prehensive Homeless Assistance Plan (a) Not less than 1.5 percent of the or the Comprehensive Housing Afford- funds provided in each fiscal year for ability Strategy as required by section the Emergency Community Services 401 of such Act (42 U.S.C. 11361), as Homeless Grant Program shall be allo- amended by section 836 of the Cran- cated by the Secretary directly to In- ston-Gonzalez National Affordable dian tribes that have applied for and Housing Act. received a direct grant award under (7) The State will have procedures in section 674(c) of the Community Serv- place to assure compliance with the ices Block Grant Act (41 U.S.C. 9903(c)) provisions of the National Historic for that fiscal year. Preservation Act prior to the awarding (b) An Indian tribe funded under this of any amounts to be used for ren- section is not required to submit an ap- ovating any properties that are listed plication for Emergency Community on, or eligible for inclusion on, the Na- Services Homeless Grant Program tional Register of Historic Places. funds. A tribe’s application for a direct (Information collection requirements are ap- grant award under section 674(c) of the proved by the Office of Management and Community Services Block Grant Act Budget under control number 0970–0088) (42 U.S.C. 9903(c)) that is submitted by [54 FR 6372, Feb. 9, 1989, as amended at 57 FR September 1 for the succeeding fiscal 27946, June 23, 1992] year will be considered as an application for Emergency Community Serv- § 1080.6 Funding of alternative organi- ices Homeless Grant Program funds for zations. that fiscal year. Acceptance of the (a) If a State does not apply for or Community Services Block Grant ap- submits an approvable application for a plication by the Office of Community grant under the Emergency Commu- Services will constitute approval of an nity Services Homeless Grant Pro- award of funds under this section. gram, the Secretary shall use the (c) Funds allocated under this section amounts that would have been allo- shall be allotted to an Indian tribe in cated to that State to make grants to an amount that bears the same ratio to agencies and organizations in the State all the funds allocated under this sec- that meet the requirements of tion as the tribe’s poverty population § 1080.5(b)(1). bears to the total poverty population (b) The amounts allocated under this of all tribes funded under this section, section in any fiscal year shall be except that no tribe shall receive an awarded to eligible agencies and orga- amount of less than:

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(1) $500, for those tribes whose alloca- related to the administrative costs as- tion under this section would otherwise sociated with the coordination and in- be at least $1 but no more than $500; or tegration of services to the homeless. (2) $1000, for those tribes whose allo- (c) States shall also provide informa- cation under this section would other- tion in the annual report which details wise be at least $501 but less than $1000. programs, progress, and activities that (d) For purposes of this section, an are specifically related to expenditures Indian tribe’s poverty population shall for renovation, including the effects of be calculated by multiplying the such activities on historic properties, tribe’s overall population by the Indian and the provision of, or referral to, rural poverty rate for the State in services for domestic violence. which it is located, using the population and rural poverty rate figures (Information collection requirements are ap- established for the purposes of making proved by the Office of Management and direct grants under section 674(c) of the Budget under control number 0970–0088) Community Services Block Grant Act [57 FR 27946, June 23, 1992] (42 U.S.C. 9903(c)). § 1080.9 Other requirements. § 1080.8 Reporting requirements. All recipients of grants under the Each recipient of funds under the Emergency Community Services Emergency Community Services Homeless Grant Program shall be sub- Homeless Grant Program shall submit ject to the following regulations appli- an annual report to the Secretary, cable to the block grant programs in within 6 months of the end of the pe- the Department of Health and Human riod covered by the report, on the ex- Services: penditure of funds and the implementa- (a) 45 CFR part 96, subpart B, § 96.12— tion of the program for that fiscal Grant Payment, concerning the timing year. and method of disbursing grant awards; (a) The report is to state the types of (b) 45 CFR part 96, subpart B, § 96.14— activities funded, any efforts under- Time Period for Obligation and Ex- taken by the grantee and its sub- penditure of Grant Funds, as amended, grantees to coordinate homeless activi- concerning the availability of grant ties funded under this program with funds; other homeless assistance activities in (c) 45 CFR part 96, subpart C—Finan- the State and communities, the num- cial Management, as amended, con- ber of individuals served and any im- cerning financial management and pediments, including statutory and audit requirements; regulatory restrictions to homeless individuals’ use of the program and to (d) 45 CFR part 96, subpart E—En- their obtaining services or benefits forcement, as amended, concerning en- under the program. forcement and complaint procedures; (b) Such annual report shall provide and information on the use of funds to de- (e) 45 CFR part 96, subpart F—Hear- fray State administrative costs, including Procedures, concerning hearing ing the types of activities which spe- procedures. cifically address services to the homeless and also those activities that are PARTS 1081–1099 [RESERVED]

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EDITORIAL NOTE: Nomenclature changes to chapter XI appear at 66 FR 47096, Sept. 11, 2001.

SUBCHAPTER A—GENERAL

Part Page 1100 Statement for the guidance of the public—Organi- zation, procedure and availability of information 327 1105 Standards of conduct for employees ...... 331 1110 Nondiscrimination in federally assisted programs 331 1115 Privacy Act regulations ...... 342

SUBCHAPTER B—NATIONAL ENDOWMENT FOR THE ARTS 1116–1148 [Reserved] 1149 Program Fraud Civil Remedies Act regulations ..... 347 1150 Collection of claims ...... 364 1151 Nondiscrimination on the basis of handicap ...... 376 1152 Intergovernmental review of National Endowment for the Arts programs and activities ...... 385 1153 Enforcement of nondiscrimination on the basis of handicap in programs or activities conducted by the National Endowment for the Arts ...... 388 1156 Nondiscrimination on the basis of age ...... 395 1157 [Reserved] 1158 New restrictions on lobbying ...... 401 1159 Implementation of the Privacy Act of 1974 ...... 413

SUBCHAPTER C—FEDERAL COUNCIL ON THE ARTS AND THE HUMANITIES 1160 Indemnities under the Arts and Artifacts Indem- nity Act ...... 422

SUBCHAPTER D—NATIONAL ENDOWMENT FOR THE HUMANITIES 1168 New restrictions on lobbying ...... 427 1170 Nondiscrimination on the basis of handicap in federally assisted programs or activities ...... 438

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Part Page 1171 Public access to NEH records under the Freedom of Information Act ...... 450 1172 Nondiscrimination on the basis of age in federally assisted programs or activities ...... 460 1174 [Reserved] 1175 Enforcement of nondiscrimination on the basis of handicap in programs or activities conducted by the National Endowment for the Humanities ...... 467 1176 Part-time career employment ...... 472 1177 Claims collection...... 474 1178 Use of penalty mail in the location and recovery of missing children ...... 477 1179 Salary offset...... 478

SUBCHAPTER E—INSTITUTE OF MUSEUM AND LIBRARY SERVICES 1180 [Reserved] 1181 Enforcement of nondiscrimination on the basis of handicap in programs or activities conducted by the Institute of Museum and Library Services .... 482 1182 Implementation of the Privacy Act of 1974 ...... 487 1183 [Reserved] 1184 Implementation of the Freedom of Information Act ...... 495 1185–1199 [Reserved]

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PART 1100—STATEMENT FOR THE school, an institution of graduate or GUIDANCE OF THE PUBLIC—OR- undergraduate higher education, an in- GANIZATION, PROCEDURE AND stitution of professional education, or an institution of vocational education, AVAILABILITY OF INFORMATION which operates a program or programs of scholarly research. Sec. 1100.1 Definitions. (f) Non-commercial scientific institution 1100.2 Organization. means an institution that is not oper- 1100.3 Availability of information to the ated on a ‘‘commercial use’’ basis as public. defined in paragraph (b) of this section 1100.4 Current index. and which is operated solely for the 1100.5 Agency procedures for handling re- purposes of conducting scientific requests for documents. search the results of which are not in- 1100.6 Fees. 1100.7 Foundation report of actions. tended to promote any particular product or industry. AUTHORITY: 5 U.S.C. 552, as amended by (g) Representative of the news media Pub. L. 99–570, 100 Stat. 3207. means any person actively gathering SOURCE: 52 FR 48266, Dec. 21, 1987, unless news for an entity that is organized otherwise noted. and operated to publish or broadcast § 1100.1 Definitions. information that is about current events or that would be of current in- (a) Agency means the National En- terest to the public. Freelance journal- dowment for the Arts. ists may be regarded as working for a (b) Commercial use request means a re- news organization if they can dem- quest by or on behalf of anyone who onstrate a sound basis for expecting seeks information for a use or purpose publication though that organization, that furthers the commercial trade or even though not actually employed by profit interests of the requestor (or the it. person on whose behalf the request is (h) Review means the process of ex- made.) The agency must determined amining a document located in re- the use to which a requestor will put sponse to a commercial use request to the document. Where the agency has determine whether any portion is per- reasonable cause to doubt the use to mitted to be withheld. Review includes which a requestor will put the records processing documents for disclosure, sought or the use is not clear from the including all that is necessary to excise request, the agency may seek addi- them and otherwise prepare them for tional clarification. The requestor release. Review does not include time fears the burden of demonstrating the spent resolving general legal or policy use or purpose of the information re- issues regarding the application of ex- quested. emptions. (c) Direct costs mens those expendi- (i) Search means all the time that is tures which an agency actually incurs spent looking for material that re- in searching for and duplication docu- sponds to a request, including page-by- ments to respond to a Freedom of In- page or line-by-line identification of formation Act (FOIA) request. In the material in documents. Searches may case of commercial use requests, the be done manually or by computer using term shall also include expenditures exisiting programs. for reviewing documents. (d) Duplication means the process of [52 FR 48266, Dec. 21, 1987, as amended at 79 making a copy of a document nec- FR 9621, Feb. 20, 2014] essary to respond to a FOIA request. Such copies may be in the form of § 1100.2 Organization. paper, microfilm, machine readable The National Foundation on the Arts documents, or other materials. and the Humanities was established by (e) Educational institution means a the National Foundation on the Arts preschool, elementary, or secondary and the Humanities Act of 1965, 20

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U.S.C. 951 et seq. The Foundation is effective administration of the Free- composed of the National Endowment dom of Information Act. The head of for the Arts, the National Endowment the National Endowment for the Arts for the Humanities, the Institute of pursuant to this responsibility hereby Museum and Library Services, and the directs that every effort be expended to Federal Council on the Arts and the facilitate service to the public with re- Humanities. The Institute of Museum spect to the obtaining of information and Library Services became a part of and records. the National Foundation on the Arts (c) Requests for access to records of and the Humanities pursuant to the the National Endowment for the Arts Museum and Library Services Act, as may be filed by mail with the General amended (20 U.S.C. 9102). Each Endow- Counsel of the National Endowment for ment is headed by a Chairman and has the Arts or by email at [email protected]. an advisory national council composed All requests should reasonably describe of 26 presidential appointees. The Insti- the record or records sought. Requests tute of Museum and Library Services is submitted should be clearly identified headed by a Director and has a Na- as being made pursuant to the Freedom tional Museum and Library Services of Information Act. Board composed of 20 presidential appointees, the Director, and IMLS’s [79 FR 9622, Feb. 20, 2014] Deputy Directors for the Offices of Li- § 1100.4 Current index. brary Services, and Museum Services. The Federal Council on the Arts and The National Endowment for the the Humanities, comprised of Execu- Arts shall maintain and make avail- tive branch officials and appointees of able for public inspection and copying the legislative branch, is authorized to a current index providing identifying make agreements to indemnify against information for the public as to any loss or damage for certain exhibitions matter which is issued, adopted, or pro- and advise on arts and humanities mat- mulgated and which is required to be ters. The National Endowment for the made available pursuant to 5 U.S.C. Humanities, the Federal Council on the 552(a)(1) and (2). Publication and dis- Arts and Humanities, and the Institute tribution of such indices has been de- of Museum and Library Services no termined by the Foundation to be un- longer follow the regulations under necessary and impracticable. The indi- this part. The procedures for disclosing ces will be provided upon request at a records of the National Endowment for cost not to exceed the direct cost of the the Humanities and the Federal Coun- duplication. cil on the Arts and the Humanities are [79 FR 9622, Feb. 20, 2014] available at 45 CFR part 1171. The procedures for disclosing records of the In- § 1100.5 Agency procedures for han- stitute of Museum and Library Serv- dling requests for documents. ices are available at 45 CFR part 1184. (a) Upon receiving a request for docu- [79 FR 9621, Feb. 20, 2014] ments in accordance with the rules of this part, the General Counsel or re- § 1100.3 Availability of information to spective Assistant General Counsel the public. serving as the Freedom of Information (a) Descriptive brochures of the orga- Act Officer of the National Endowment nization, programs, and function of the for the Arts shall determine whether or National Endowment for the Arts are not the request shall be granted in available upon request. Inquiries in- whole or in part. volving work of the National Endow- (1) The determination shall be made ment for the Arts should be addressed within ten (10) days (excepting Satur- to the National Endowment for the days, Sundays, and legal holidays) Arts, 1100 Pennsylvania Avenue NW., after receipt of such request. Washington, DC 20506. The telephone (2) The requestor shall be notified of number of the National Endowment for the determination and the reasons that the Arts is (202) 682–5400. support it. When a request is denied in (b) The head of the National Endow- whole or in part, the requestor, will be ment for the Arts is responsible for the notified of his or her rights to appeal

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the determination to the head of the a substantial subject-matter interest agency. in the request. (b)(1) Any party whose request for [52 FR 48266, Dec. 21, 1987, as amended at 79 documents has been denied in whole or FR 9622, Feb. 20, 2014] in part may file an appeal no later than ten (10) working days following receipt § 1100.6 Fees. of the notification of denial. Appeals (a) Categories of fees. Fees will be must be addressed to the Chairman, charged according to the Category of National Endowment for the Arts, the FOIA request. Washington, DC 20506. (1) Commercial use requests. The agen- (2) The head of the agency or his cy will assess charges to recover the delegatee shall make a determination full direct cost of searching for, review- with respect to the appeal within twen- ing, and duplicating the requested doc- ty (20) days (excepting Saturdays, Sun- ument. The agency may recover the days, and legal holidays) after the cost of searching for and reviewing agency has received the appeal, except records even if there is ultimately no as provided in paragraph (c) of this sec- disclosure. tion. If, on appeal, the denial is upheld (2) Requests from educational and non- either in whole or in part, the head of commercial scientific institutions. The the agency shall notify the party sub- agency will charge for duplication mitting the appeal of the judicial re- costs. To qualify for this category the view provisions of 5 U.S.C. 552(a)(4)(B). requestor must show: (i) That re- (c) In unusual circumstances, the quested records are being sought under time limits prescribed to determine a the auspices of a qualified institution request for documents with respect to as defined in § 1100.1 (e) or (f) of this part; (ii) the records are not sought for initial actions or actions on appeal commercial use; and (iii) the records may be extended by written notice are being sought in furtherance of from the General Counsel or respective scholarly or scientific research of the Assistant General Counsel serving as institution. the Freedom of Information Act Officer (3) Requests by representatives of the of the National Endowment for the news media. The agency will charge du- Arts. The notice shall describe the rea- plication costs for the requests in this son for the extension and the date on category. which the determination is expected to (4) All other requests. All other re- be made. No notice shall specify a date quests shall be charged fees which, re- that would result in an extension of cover the full reasonable cost for more than ten (10) days (excepting Sat- searching for and duplicating the re- urdays, Sundays, and legal holidays). quested records. As is used in this paragraph, unusual (b) General fee schedule. The agency circumstances means: shall use the most efficient and least (1) The need to search for and collect costly method to comply with requests the requested records from field facili- for documents made under the FOIA. ties or other establishments that are The agency will charge fees to recover separate from the office processing the all allowable direct costs incurred. The request; agency may charge fees for searching (2) The need to search for, collect, for and reviewing requested documents and appropriately examine a volumious even if the documents are determined amount of separate and distinct to be exempt from disclosure or cannot records which are demanded in a single be located. If search charges are likely to exceed $25, the agency shall notify request; or the requestor, unless the requestor has (3) The need for consultation, which indicated in advance the willingness to shall be conducted with all practicable pay higher fees. The following fees speed, with another agency having a shall be charged in accordance with substantial interest in the determina- paragraph (a) of this section. tion of the request or among two or (1) Searches—(i) Manual. The fee more components of the agency having charged will be the salary rate(s) (i.e.,

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basic pay plus 16.1 percent) of the em- (ii) The informative value of the infor- ployee(s) conducting the search. mation to be disclosed. Whether the dis- (ii) Computer. The fee charged will be closure is ‘‘likely to contribute’’ to an the actual direct cost of providing the understanding of government oper- service including the cost of operating ations or activities; the central processing unit for the op- (iii) The contribution to an under- erating time that is directly attributed standing of the subject by the general to searching for records responsive to a public likely to result from disclosure. request and the operator/programmer Whether disclosure of the requested in- salary apportionable to the search. formation will contribute to ‘‘public (2) Review. The fee charged will equal understanding’’; the salary rate(s) (basic pay plus 16.1 (iv) The significance of the contribution percent) of the employee(s) conducting to public understanding. Whether disclo- the review. sure is likely to contribute ‘‘signifi- (3) Duplication. Copies of documents cantly’’ to public understanding of gov- photocopied on one-side of a 81⁄2 × 11 ernment operations or activities; inch sheet of paper will be provided at (v) The existence and magnitude of a $.10 per page. Photocopies on two sides commercial interest. Whether the re- of a single 81⁄2 × 11 inch sheet of paper questor has a commercial interest that will be provided at $.20 per page. For would be furthered by the disclosure; duplication of other materials, the and if so charge will be the direct cost of dupli- (vi) The primary interest in disclosure. cation. Whether the magnitude of the identi- (c) Restrictions on charging fees. (1) Ex- fied commercial interest of the re- cept for documents provided in requestor is sufficiently large in com- sponse to a commercial use request, parison with the public interest in dis- the first 100 pages of duplication or the closure, that disclosure is ‘‘primarily first two (2) hours of search time shall in the commercial interest of the re- be provided at no charge. For the pur- quester.’’ poses of this section, two (2) hours of (e) Assessment and collection of fees. (1) search time by computer entitles the Interest will accrue from the date the requestor to two (2) hours of computer bill is mailed if the fee is not paid operator salary translated into com- within thirty (30) days. Interest will be puter search costs. Computer search assessed at the rate prescribed in 31 costs consist of operator salary plus U.S.C. 3717. central proceeding unit operating time (2) If the agency reasonably believes costs for the duration of the search. that a requestor(s) is making multiple (2) Fees shall not be charged to any requests to avoid the assessment of requestor, including commercial use fees, the agency may aggregate such requestors, if the cost of collecting a requests and charge accordingly. fee would be equal to or greater than (3) The agency may request an ad- the fee itself. vance payment of the fee if (d) Waiver or reduction of fees. (1) Doc- (i) The allowable charges are likely uments shall be furnished without to exceed $250; or charge or at reduced charge if disclo- (ii) The requestor has failed pre- sure of the information is in the public viously to pay a fee in a timely fash- interest because it is likely to con- ion. tribute significantly to public under- (4) When the agency requests an ad- standing of the operations or activities vance payment, the time limits pre- of the government and is not primarily scribed in section (a)(6) of the Freedom in the commercial interest of the re- of Information Act will begin only questor. after the agency has received full pay- (2) The following factors shall be used ment. to determine whether a fee will be waived or reduced: § 1100.7 Foundation report of actions. (i) The subject of the request. Whether On or before March 1 of each calendar the subject of the requested records year, the National Endowment for the concerns ‘‘the operations or activities Arts shall submit a report of its activi- of the government’’; ties with regard to public information

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requests during the preceding calendar 2635; the executive branch employees year to the Speaker of the House of responsibilities and conduct regula- Representatives and to the President of tions at 5 CFR part 735; the executive the Senate. The report shall include: branch financial disclosure regulations (a) The number of determinations at 5 CFR part 2634, and the executive made by National Endowment for the branch financial interests regulations Arts not to comply with requests for at 5 CFR part 2640. Employees of the records made to the agency under the National Endowment for the Arts are provisions of this part and the reasons also subject to that Agency’s regula- for each such determination; tions at 5 CFR part 6501, which supple- (b) The number of appeals made by ment the executive branchwide stand- persons under such provision, the re- ards of conduct at 5 CFR part 2635. Em- sult of such appeals, and the reasons ployees of the National Endowment for for the action upon each appeal that the Humanities are also subject to that results in the denial of information; Agency’s regulations at 5 CFR part (c) The names and titles or positions 6601, which supplement the executive of each person responsible for the de- branchwide standards of conduct at 5 nial of records requested under the pro- CFR part 2635. visions of this part and the number of instances of participation for each; PART 1110—NONDISCRIMINATION (d) The results of each proceeding IN FEDERALLY ASSISTED PRO- conducted pursuant to 5 U.S.C. GRAMS 552(a)(4)(F), as amended, including a report of the disciplinary action taken Sec. against the officer of employee who 1110.1 Purpose. was primarily responsible for improp- 1110.2 Application of part. erly withholding records or an expla- 1110.3 Discrimination prohibited. nation of why disciplinary action was 1110.4 Assurances required. not taken; 1110.5 Illustrative applications. (e) A copy of every rule made by the 1110.6 Compliance information. 1110.7 Conduct of investigations. Foundation implementing the provi- 1110.8 Procedure for effecting compliance. sions of the FOIA. 1110.9 Hearings. (f) A copy of the fee schedule and the 1110.10 Decisions and notices. total amount of fees collected by the 1110.11 Judicial review. agency for making records available 1110.12 Effect on other regulations; forms under this section; and and instructions. (g) Such other information as indi- 1110.13 Definitions. cates efforts to administer the provi- APPENDIX A TO PART 1110—FEDERAL FINAN- sions of the FOIA, as amended. CIAL ASSISTANCE TO WHICH THIS PART AP- PLIES [52 FR 48266, Dec. 21, 1987, as amended at 79 AUTHORITY: 42 U.S.C. 2000d–2000d–7. FR 9622, Feb. 20, 2014] SOURCE: 38 FR 17991, July 5, 1973, unless PART 1105—STANDARDS OF otherwise noted. CONDUCT FOR EMPLOYEES § 1110.1 Purpose. The purpose of this part is to effec- AUTHORITY: 5 U.S.C. 7301. tuate the provisions of title VI of the SOURCE: 68 FR 52702, Sept. 5, 2003, unless Civil Rights Act of 1964 (hereafter re- otherwise noted. ferred to as the ‘‘Act’’), 42 U.S.C. 2000d et seq., to the end that no person in the § 1105.1 Cross-reference to employee United States shall, on the ground of ethical conduct standards and fi- race, color, or national origin, be ex- nancial disclosure and financial included from participation in, be denied terests regulations. the benefits of, or be otherwise sub- Employees of the National Endow- jected to discrimination under any pro- ment for the Arts and the National En- gram or activity receiving Federal fi- dowment for the Humanities are sub- nancial assistance from the National ject to the executive branchwide stand- Endowment for the Arts, the National ards of ethical conduct at 5 CFR part Endowment for the Humanities, or the

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Institute of Museum and Library Serv- of, or be otherwise subjected, to dis- ices. crimination under any program to which this part applies. [62 FR 66826, Dec. 22, 1997] (b) Specific discriminatory actions pro- § 1110.2 Application of part. hibited. (1) A recipient under any program to which this part applies may This part applies to any program for not directly or through contractual or which Federal financial assistance is other arrangements, on the ground of authorized under a law administered by race, color, or national origin: the National Endowment for the Arts, (i) Deny an individual any service, fi- the National Endowment for Human- nancial aid, or other benefit provided ities, or the Institute of Museum and under the program; Library Services, including the types (ii) Provide any service, financial aid, of Federal financial assistance listed in or other benefit to an individual which appendix A of this part. It applies to is different, or is provided in a different money paid, property transferred, or manner, from that provided to others other Federal financial assistance ex- under the program; tended after the effective date of the (iii) Subject an individual to segrega- part, including assistance pursuant to tion or separate treatment in any mat- an application approved prior to such ter related to his receipt of any service, date. It also applies to federal financial financial aid, or other benefit under assistance extended to any such pro- the program; gram prior to the effective date of this (iv) Restrict an individual in any way part under a contract or grant where in the enjoyment of any advantage or the term of the contract or grant con- privilege enjoyed by others receiving tinues beyond such date or where the any service, financial aid, or other ben- assistance was to provide real or per- efit under the program; sonal property and the recipient or his (v) Treat an individual differently transferee continues to use or retain from others in determining whether he ownership or possession of the property satisfies any admission, enrollment, (see § 1110.4(a)(1)). This part does not quota, eligibility, membership, or apply to (a) any Federal financial as- other requirement or condition which sistance by way of insurance or guar- individuals must meet in order to be anty contract, (b) any assistance to provided any service, financial aid, or any individual who is the ultimate ben- other benefit provided under the pro- eficiary under any such program, or (c) gram; any employment practice, under any (vi) Deny an individual an oppor- such program, of any employer, em- tunity to participate in the program ployment agency, or labor organiza- through the provision of services or tion, except to the extent described in otherwise or afford him an opportunity § 1110.3. The fact that a type of Federal to do so which is different from that af- financial assistance is not listed in ap- forded others under the program (in- pendix A shall not mean, if title VI of cluding the opportunity to participate the Act is otherwise applicable, that a in the program as an employee but program is not covered. Other types of only to the extent set forth in para- Federal financial assistance under stat- graph (c) of this section). utes now in force or hereinafter en- (2) A recipient, in determining the acted may be added to this list by no- types of services, financial aid, or other tice published in the FEDERAL REG- benefits, or facilities which will be pro- ISTER. vided under any such program, or the [38 FR 17991, July 5, 1973, as amended at 62 class of individuals to whom, or the sit- FR 66826, Dec. 22, 1997; 68 FR 51384, Aug. 26, uations in which, such services, finan- 2003] cial aid, other benefits, or facilities will be provided under any such pro- § 1110.3 Discrimination prohibited. gram, or the class of individuals to be (a) General. No person in the United afforded an opportunity to participate States shall, on grounds of race, color, in any such program, may not directly or national origin be excluded from or through contractual or other ar- participation in, be denied the benefits rangements, utilize criteria or methods

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of administration which have the effect (c) Employment practices. (1) Where a of subjecting individuals to discrimina- primary objective of the Federal finan- tion because of their race, color, or na- cial assistance to a program to which tional origin, or have the effect of de- this part applies is to provide employ- feating or substantially impairing ac- ment, a recipient may not directly or complishment of the objectives of the through contractual or other arrange- program as respects individuals of a ments subject an individual to dis- particular race, color, or national ori- crimination on the ground of race, gin. color, or national origin in its employ- (3) In determining the site or loca- ment practices under such program (in- tion of facilities, a recipient or appli- cluding recruitment or recruitment ad- cant may not make selections with the vertising employment, layoff or termi- purpose or effect of excluding individ- nation, upgrading, demotion, or trans- uals from, denying them the benefits fer, rates of pay or other forms of com- of, or subjecting them to discrimina- pensation and use of facilities), includ- tion under any program to which this ing programs where a primary objec- regulation applies, on the grounds of tive of the Federal financial assistance race, color, or national origin; or with is (i) to assist such individuals through the purpose or effect of defeating or employment to meet expenses incident substantially impairing the accom- to the commencement or continuation plishment of the objectives of the Act of their education or training or (ii) to or this regulation. provide work experience which contrib- (4) As used in this section, the serv- utes to the education or training of ices, financial aid, or other benefits such individuals or (iii) to reduce the provided under a program receiving unemployment of such individuals or Federal financial assistance shall be to help them through employment to deemed to include any service, finan- meet subsistence needs. cial aid, or other benefit provided in or (2) The requirements applicable to through a facility provided with the construction employment under any aid of Federal financial assistance. such program shall be those specified (5) The enumeration of specific forms in or pursuant to Executive Order 11246 of prohibited discrimination in this or any executive order which super- paragraph and paragraph (c) of this sedes it. section does not limit the generality of (3) Where a primary objective of the the prohibition in paragraph (a) of this Federal financial assistance is not to section. provide employment, but discrimina- (6) This regulation does not prohibit tion on the grounds of race, color, or the consideration of race, color, or na- national origin in the employment tional origin if the purpose and effect practices of the recipient or other per- are to remove or overcome the con- sons subject to the regulation tends, on sequences of practices or impediments the grounds of race, color, or national which have restricted the availability origin, to exclude individuals from par- of, or participation in, the program or ticipation in, to deny them the benefits activity receiving Federal financial as- of, or to subject them to discrimina- sistance, on the grounds of race, color, tion under any program to which this or national origin. Where previous dis- regulation applies, the provisions of criminatory practice or usage tends, on the foregoing subparagraph of this the grounds of race, color, or national paragraph (c) shall apply to the em- origin, to exclude individuals from par- ployment practices of the recipient or ticipation in, to deny them the benefits other persons subject to the regulation, of, or to subject them to discrimina- to the extent necessary to assure tion under any program or activity to equality of opportunity to and non- which this regulation applies the appli- discriminatory treatment of, bene- cant or recipient has an obligation to ficiaries. take reasonable action to remove or (d) Medical emergencies. Notwith- overcome the consequences of the prior standing the foregoing provisions of discriminatory practice or usage, and this section, a recipient of Federal fi- to accomplish the purposes of the Act. nancial assistance shall not be deemed

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to have failed to comply with para- fer of real property or interest therein graph (a) of this section if immediate from the Federal Government, the in- provision of a service or other benefit strument effecting or recording the to an individual is necessary to prevent transfer, shall contain a covenant run- his death or serious impairment of his ning with the land assuring non- health and such service or other ben- discrimination for the period during efit cannot be provided except by or which the real property is used for a through a medical institution which purpose for which the Federal financial refuses or fails to comply with para- assistance is extended or for another graph (a) of this section. purpose involving the provision of similar services or benefits. Where no § 1110.4 Assurances required. transfer of property is involved, but (a) General. (1) Every application for property is improved with Federal fi- Federal financial assistance to which nancial assistance, the recipients shall this part applies, and every application agree to include such a covenant in any for Federal financial assistance to pro- subsequent transfer of such property. vide a facility shall, as a condition to Where the property is obtained from its approval and the extension of any the Federal Government, such cov- Federal financial assistance pursuant enant may also include a condition to the application, contain or be ac- coupled with a right to be reserved by companied by an assurance that the the Endowment to revert title to the program will be conducted or the facil- property in the event of a breach of the ity operated in compliance with all re- covenant where, in the discretion of quirements imposed by or pursuant to the responsible Endowment official, this part. In the case where the Federal such a condition and right of reverter financial assistance is to provide or is is appropriate to the statute under in the form of personal property, or which the real property is obtained and real property or interest therein or to the nature of the grant and the structures thereon, the assurance shall grantee. In the event a transferee of obligate the recipient, or, in the case of real property proposes to mortgage or a subsequent transfer, the transferee, otherwise encumber the real property for the period during which the prop- as security for financing construction erty is used for a purpose for which the of new, or improvement of existing, fa- Federal financial assistance is extended or for another purpose involving cilities on such property for the pur- the provision of similar services and poses for which the property was trans- benefits, or for as long as the recipient ferred, the Chairman of the Endow- retains ownership or possession of the ment concerned may agree, upon re- property, whichever is longer; and any quest of the transferee and if necessary other type or form of assistance, the to accomplish such financing, and upon assurances shall be in effect for the du- such conditions as he deems appro- ration of the period during which Fed- priate, to forebear the exercise of such eral financial assistance is extended to right to revert title for so long as the the program. The responsible Endow- lien of such mortgage or other encum- ment official shall specify the form of brance remains effective. the foregoing assurances and the ex- (3) Transfers of surplus property are tent to which like assurances will be subject to regulations issued by the required of subgrantees, contractors Administrator of the General Services and subcontractors, successors in in- Administration. (41 CFR 101–6.2) terest, and other participants. Any (b) Continuing Federal financial assist- such assurance shall include provisions ance. Every application by a State or a which give the United States a right to State agency for continuing Federal fi- seek its judicial enforcement. nancial assistance to which this part (2) In the case of real property, struc- applies shall as a condition to its ap- tures or improvements thereon, or in- proval and the extension of any Fed- terests therein, which was acquired eral financial assistance pursuant to with Federal financial assistance, or in the application (1) contain or be ac- the case where Federal financial assist- companied by a statement that the ance is provided in the form of a trans- program is (or, in the case of a new

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program, will be) conducted in compli- (2) The assurance required with re- ance with all requirements imposed by spect to an institution of higher edu- or pursuant to this part, and (2) provide cation or any other institution, insofar or be accompanied by provision for as the assurance relates to the institu- such methods of administration for the tion’s practices with respect to admis- program as are found by the respon- sion or other treatment of individuals sible Endowment official to give rea- as students, or clients of the institu- sonable assurance that the applicant tion or to the opportunity to partici- and all recipients of Federal financial pate in the provision of services or assistance under such program will other benefits to such individuals, shall comply with all requirements imposed be applicable to the entire institution. by or pursuant to this part. [38 FR 17991, July 5, 1973, as amended at 68 (c) Elementary and secondary schools. FR 51383, Aug. 26, 2003] The requirements of paragraph (a) of this section with respect to any ele- § 1110.5 Illustrative applications. mentary or secondary school or school The following examples will illus- system shall be deemed to be satisfied trate the application of the foregoing if such school or school system (1) is provisions to some of the activities for subject to a final order of a court of the which Federal financial assistance is United States for the desegregation of provided by the Endowments. (In all such school or school system, and pro- cases the discrimination prohibited is vides an assurance that it will comply discrimination on the ground of race, with such order, including any future color, or national origin prohibited by modification of such order, or (2) subtitle VI of the Act and this part, as a mits a plan for the desegregation of condition of the receipt of Federal fi- such school or school system which the nancial assistance.) responsible official of the Department (a) In a research, training, or other of Health, Education, and Welfare de- grant to a university for activities to termines is adequate to accomplish the be conducted in a graduate school, dis- purposes of the Act and this part with- crimination in the admission and in the earliest practicable time and treatment of students in the graduate provides reasonable assurance that it school is prohibited, and the prohibi- will carry out such plan. In any case of tion extends to the entire university. continuing Federal financial assist- (b) In cases of Federal financial as- ance, the responsible official of the De- sistance to elementary or secondary partment of Health, Education, and schools, discrimination by the recipi- Welfare may reserve the right to rede- ent school district in any of its elemen- termine, after such period as may be tary or secondary schools, or by the re- specified by him, the adequacy of the cipient private institution, in the ad- plan to accomplish the purposes of the mission of students, or in the treat- Act and this part. In any case in which ment of its students in any aspect of a final order of a court of the United the educational process, is prohibited. States for the desegregation of such In this and the following illustration school or school system is entered after the prohibition of discrimination in the submission of such a plan, such plan treatment of students or other trainees shall be revised to conform to such includes the prohibition of discrimina- final order, including any future modi- tion among the students or trainees in fication of such order. the availability or use of any aca- (d) Assurances from institutions. (1) In demic, dormitory, eating, recreational, the case of any application for Federal or other facilities of the grantee or financial assistance to an institution of other recipient. higher education (including assistance (c) In a training grant to a nonaca- for construction, for research, for a demic institution, discrimination is special training project, or for any prohibited in the selection of individ- other purpose), the assurance required uals to be trained and in their treat- by this section shall extend to admis- ment by the grantee during their train- sion practices and to all other prac- ing. In a research or demonstration tices relating to the treatment of stu- grant to such an institution, discrimi- dents. nation is prohibited with respect to

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any educational activity, any provision sity is not adequately serving members of medical or other services and any fi- of a particular racial or nationality nancial aid to individuals incident to group, it may establish special recruit- the program. ment policies to make its program bet- (d) Where Federal financial assist- ter known and more readily available ance is provided to assist in the presen- to such group, and take other steps to tation of artistic and cultural produc- provide that group with more adequate tions to the public, assurances will be service. required that such productions will not be presented before any audience which [38 FR 17991, July 5, 1973, as amended at 68 FR 51383, Aug. 26, 2003] has been selected on a discriminatory basis. § 1110.6 Compliance information. (e) A recipient may not take action that is calculated to bring about indi- (a) Cooperation and assistance. The re- rectly what this part forbids it to ac- sponsible Endowment official shall, to complish directly. Thus, a State, in se- the fullest extent practicable, seek the lecting projects to be supported cooperation of recipients in obtaining through a State agency, may not base compliance with this part and shall its selections on criteria which have provide assistance and guidance to re- the effect of defeating or substantially cipients to help them comply volun- impairing accomplishment of the ob- tarily with this part. jectives of the Federal financial assist- (b) Compliance reports. Each recipient ance as respects individuals of a par- shall keep such records and submit to ticular race, color, or national origin. the responsible Endowment official (f) In some situations even though timely, complete and accurate compli- past discriminatory practices have ance reports at such times, and in such been abandoned, the consequences of form and containing such information, such practices continue to impede the as the responsible Endowment official full availability of a benefit. If the ef- may determine to be necessary to en- forts required of the applicant or re- able him to ascertain whether the recipient under § 1110.6(d) to provide in- cipient has complied or is complying formation as to the availability of the with this part. In the case in which a program or activity, and the rights of primary recipient extends Federal fi- beneficiaries under this regulation, nancial assistance to any other recipi- have failed to overcome these con- ent, such other recipient shall also sub- sequences, it will become necessary for mit such compliance reports to the pri- such applicant or recipient to take ad- mary recipient as may be necessary to ditional steps to make the benefits enable the primary recipient to carry fully available to racial and nation- out its obligations under this part. ality groups previously subjected to (c) Access to sources of information. discrimination. This action might take Each recipient shall permit access by the form, for example of special ar- the responsible Endowment official or rangements for obtaining referrals or his designee during normal business making selections which will insure hours to such of its books, records, ac- that groups previously subjected to dis- counts, and other sources of informa- crimination are adequately served. tion, and its facilities as may be perti- (g) Even though an applicant or re- nent to ascertain compliance with this cipient has never used discriminatory part. Where any information required policies, the services and benefits of of a recipient is in the exclusive posses- the program or activity it administers sion of any other agency, institution or may not in fact be equally available to person and this agency, institution or some racial or nationality groups. In person shall fail or refuse to furnish such circumstances an applicant or re- this information, the recipient shall so cipient may properly give special con- certify in its report and shall set forth sideration to race, color, or national what efforts it has made to obtain the origin to make the benefits of its pro- information. gram more widely available to such (d) Information to beneficiaries and groups, not then being adequately participants. Each recipient shall make served. For example, where a univer- available to participants, beneficiaries,

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and other interested persons such in- (d)(1) of this section, the responsible formation regarding the provisions of Endowment official will so inform the this part and its applicability to the recipient and the complainant, if any, program for which the recipient re- in writing. ceives Federal financial assistance, and (e) Intimidatory or retaliatory acts pro- make such information available to hibited. No recipient or other person them in such manner, as the respon- shall intimidate, threaten, coerce, or sible Endowment official finds nec- discriminate against any individual for essary to apprise such persons of the the purpose of interfering with any protections against discrimination as- right or privilege secured by section 601 sured them by the Act and this part. of the Act or this part, or because he [38 FR 17991, July 5, 1973, as amended at 68 has made a complaint, testified, as- FR 51384, Aug. 26, 2003] sisted, or participated in any manner in an investigation, proceeding, or § 1110.7 Conduct of investigations. hearing under this part. The identity of (a) Periodic compliance reviews. The re- complainants shall be kept confiden- sponsible Endowment official shall tial except to the extent necessary to from time to time review the practices carry out the purposes of this part, in- of recipients to determine whether cluding the conduct of any investiga- they are complying with this part. tion, hearing, or judicial proceeding (b) Complaints. Any person who be- arising thereunder. lieves himself or any specific class of individuals to be subjected to discrimi- § 1110.8 Procedure for effecting com- nation prohibited by this part may by pliance. himself or by a representative file with (a) General. If there appears to be a the responsible Endowment official a failure or threatened failure to comply written complaint. A complaint must with this part, and if the noncompli- be filed not later than ninety days ance or threatened noncompliance can- from the date of the alleged discrimi- not be corrected by informal means, nation, unless the time for filing is ex- compliance with this part may be ef- tended by the responsible Endowment fected by the suspension or termi- official. nation of or refusal to grant or to con- (c) Investigations. The responsible En- tinue Federal financial assistance or by dowment official will make a prompt any other means authorized by law. investigation whenever a compliance Such other means may include, but are review, report, complaint, or any other not limited to, (1) a reference to the information indicates a possible failure Department of Justice with a rec- to comply with this part. The inves- ommendation that appropriate pro- tigation should include, where appro- ceedings be brought to enforce any priate, a review of the pertinent prac- rights of the United States under any tices and policies of the recipient, the law of the United States (including circumstances under which the possible other titles of the Act), or any assur- noncompliance with this part occurred, ance or other contractual undertaking, and other factors relevant to a deter- and (2) any applicable proceeding under mination as to whether the recipient State or local law. has failed to comply with this part. (b) Noncompliance with § 1110.4. If an (d) Resolution of matters. (1) If an in- applicant fails or refuses to furnish an vestigation pursuant to paragraph (c) assurance required under § 1110.4 or of this section indicates a failure to otherwise fails to comply with that comply with this part, the responsible section, Federal financial assistance Endowment official will so inform the may be refused in accordance with the recipient and the matter will be re- procedures of paragraph (c) of this sec- solved by informal means whenever tion. The Endowment concerned shall possible. If it has been determined that not be required to provide assistance in the matter cannot be resolved by infor- such a case during the pendency of the mal means, action will be taken as pro- administrative proceedings under such vided for in § 1110.8. paragraph, except that such Endow- (2) If an investigation does not war- ment shall continue assistance during rant action pursuant to paragraph the pendency of such proceedings

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where such assistance is due and pay- § 1110.9 Hearings. able pursuant to an application there- (a) Opportunity for hearing. Whenever for approved prior to the effective date an opportunity for a hearing is re- of this part. quired by § 1110.8(c), reasonable notice (c) Termination of or refusal to grant or shall be given by registered or certified to continue Federal financial assistance. mail, return receipt requested, to the No order suspending, terminating, or affected applicant or recipient. This refusing to grant or continue Federal notice shall advise the applicant or re- financial assistance shall become effec- cipient of the action proposed to be tive until (1) the responsible Endow- taken, the specific provision under ment official has advised the applicant which the proposed action against it is or recipient of his failure to comply to be taken, and the matters of fact or and has determined that compliance law asserted as the basis for this ac- cannot be secured by voluntary means, tion, and either: (2) there has been an express finding on (1) Fix a date not less than 20 days the record, after opportunity for hear- after the date of such notice within ings, of a failure by the applicant or re- which the applicant or recipient may cipient to comply with a requirement request of the responsible Endowment imposed by or pursuant to this part, (3) official that the matter be scheduled the action has been approved by the for hearing or Chairman of the Endowment con- (2) Advise the applicant or recipient cerned, and (4) the expiration of 30 days that the matter in question has been after the Chairman has filed with the set down for hearing at a stated place Committee of the House and the Com- and time. The time and place so fixed mittee of the Senate having legislative shall be reasonable and shall be subject jurisdiction over the program involved, to change for cause. The complainant, a full written report of the cir- if any, shall be advised of the time and cumstances and the grounds for such place of the hearing. An applicant or recipient may waive a hearing and sub- action. Any action to suspend or termi- mit written information and argument nate or to refuse to grant or to con- for the record. The failure of an appli- tinue Federal financial assistance shall cant or recipient to request a hearing be limited to the particular political under this paragraph or to appear at a entity, or part thereof, or other appli- hearing for which a date has been set cant or recipient as to whom such a shall be deemed to be a waiver of the finding has been made and shall be lim- right of a hearing under section 602 of ited in its effect to the particular pro- the Act and § 1110.8(c) of this part and gram, or part thereof, in which such consent to the making of a decision on noncompliance has been so found. the basis of such information as is (d) Other means authorized by law. No available. action to effect compliance by any (b) Time and place of hearing. Hear- other means authorized by law shall be ings shall be held at the offices of the taken until (1) the responsible Endow- Endowment concerned in Washington, ment official has determined that com- DC, at a time fixed by the responsible pliance cannot be secured by voluntary Endowment official unless he deter- means, (2) the recipient or other person mines that the convenience of the ap- has been notified of its failure to com- plicant or recipient or of the Endow- ply and of the action to be taken to ef- ment requires that another place be se- fect compliance, and (3) the expiration lected. Hearings shall be held before of at least 10 days from the mailing of the responsible Endowment official or, such notice to the recipient or other at his discretion, before a hearing ex- person. During this period of at least 10 aminer designated in accordance with days, additional efforts shall be made section 11 of the Administrative Proce- dure Act. to persuade the recipient or other person to comply with this part and to (c) Right to counsel. In all proceedings under this section, the applicant or re- take such corrective action as may be cipient and the Endowment shall have appropriate. the right to be represented by counsel.

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(d) Procedures, evidence, and record. (1) dated or joint hearings and for the ap- The hearing, decision, and any admin- plication to such hearings of rules or istrative review thereof shall be con- procedures not inconsistent with this ducted in conformity with 5 U.S.C. 554– part. Final decisions in such cases, in- 557 (sections 5–8 of the Administrative sofar as this regulation is concerned, Procedure Act), and in accordance with shall be made in accordance with such rules of procedure as are proper § 1110.10. (and not inconsistent with this section) relating to the conduct of the hearing, [38 FR 17991, July 5, 1973, as amended at 68 FR 51384, Aug. 26, 2003] giving of notices subsequent to those provided for in paragraph (a) of this § 1110.10 Decisions and notices. section, taking of testimony, exhibits, arguments and briefs, requests for find- (a) Decision by person other than the ings, and other related matters. Both responsible Endowment official. If the the Endowment and the applicant or hearing is held by a hearing examiner recipient shall be entitled to introduce such hearing examiner shall either all relevant evidence on the issues as make an initial decision, if so author- stated in the notice for hearing or as ized, or certify the entire record in- determined by the officer conducting cluding his recommended findings and the hearing at the outset of or during proposed decision to the responsible the hearing. Endowment official for a final decision, (2) Technical rules of evidence shall and a copy of such initial decision or not apply to hearings conducted pursu- certification shall be mailed to the ap- ant to this part, but rules or principles plicant or recipient. Where the initial designed to assure production of the decision is made by the hearing exam- most credible evidence available and to iner the applicant or recipient may subject testimony to test by cross-ex- within 30 days of the mailing of such amination shall be applied where rea- notice of initial decision file with the sonably necessary by the officer con- responsible Endowment official his ex- ducting the hearing. The hearing offi- ceptions to the initial decision, with cer may exclude irrelevant, immate- his reasons therefor. In the absence of rial, or unduly repetitious evidence. All exceptions, the responsible Endowment documents and other evidence entered official may on his own motion within or taken for the record shall be open to 45 days after the initial decision serve examination by the parties and oppor- on the applicant or recipient a notice tunity shall be given to refute facts that he will review the decision. Upon and arguments advanced on either side the filing of such exceptions or of such of the issues. A transcript shall be notice of review the responsible Endow- made of the oral evidence except to the ment official shall review the initial extent the substance thereof is stipu- decision and issue his own decision lated for the record. All decisions shall thereon including the reasons therefor. be based upon the hearing record and In the absence of either exceptions or a written findings shall be made. notice of review the initial decision (e) Consolidated or joint hearings. In shall constitute the final decision of cases in which the same or related the responsible Endowment official. facts are asserted to constitute non- (b) Decisions on record or review by the compliance with this Regulation with responsible Endowment official. When- respect to two or more Federal stat- ever a record is certified to the respon- utes, authorities, or other means by sible Endowment official for decision which Federal financial assistance is or he reviews the decision of a hearing extended and to which this part ap- examiner pursuant to paragraph (a) of plies, or noncompliance with this part this section, or whenever the respon- and the regulations of one or more sible Endowment official conducts the other Federal departments or agencies hearing, the applicant or recipient issued under title VI of the Act, the shall be given reasonable opportunity Chairman of the Endowment concerned to file with him briefs or other written may, by agreement with such other de- statements of its contentions, and a partments or agencies where applica- copy of the final decision of the respon- ble, provide for the conduct of consoli- sible Endowment official shall be given

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in writing to the applicant or recipient the terms and conditions of that order and to the complainant if any. for such eligibility or if it brings itself (c) Decisions on record where a hearing into compliance with this regulation is waived. Whenever a hearing is waived and provides reasonable assurance that pursuant to § 1110.9(a) a decision shall it will fully comply with this regula- be made by the responsible Endowment tion. (An elementary or secondary official on the record and a copy of school or school system which is un- such decision shall be given in writing able to file an assurance of compliance to the applicant or recipient, and to with § 1110.3 shall be restored to full eli- the complainant, if any. gibility to receive Federal financial as- (d) Rulings required. Each decision of sistance, if it files a court order or a a hearing officer or responsible Endow- plan for desegregation which meets the ment official shall set forth his ruling requirements of § 1110.4(c), and provides on each finding, conclusion, or exception presented, and shall identify the reasonable assurance that it will com- requirement or requirements imposed ply with this court order or plan.) by or pursuant to this part with which (2) Any applicant or recipient ad- it is found that the applicant or recipi- versely affected by an order entered ent has failed to comply. pursuant to paragraph (f) of this sec- (e) Approval by Chairman. Any final tion may at any time request the re- decision of a responsible Endowment sponsible Endowment official to re- official (other than the Chairman) store fully its eligibility to receive which provides for the suspension or Federal financial assistance. Any such termination of, or the refusal to grant request shall be supported by informa- or continue Federal financial assist- tion showing that the applicant or re- ance, or the imposition of any other cipient has met the requirements of sanction available under this part or paragraph (g)(1) of this section. If the the Act, shall promptly be transmitted responsible Endowment official deter- to the Chairman, who may approve mines that those requirements have such decision, may vacate it, or remit been satisfied, he shall restore such eli- or mitigate any sanction imposed. gibility. (f) Content of orders. The final deci- (3) If the responsible Endowment offi- sion may provide for suspension or ter- cial denies any such request, the appli- mination of, or refusal to grant or con- cant or recipient may submit a request tinue Federal financial assistance, in for a hearing in writing, specifying why whole or in part, to which this regulation applies, and may contain such it believes such official to have been in terms, conditions, and other provisions error. It shall thereupon be given an as are consistent with and will effec- expeditious hearing, with a decision on tuate the purposes of the Act and this the record, in accordance with rules of part, including provisions designed to procedure issued by the responsible En- assure that no Federal financial assist- dowment official. The applicant or re- ance to which this regulation applies cipient will be restored to such eligi- will thereafter be extended to the ap- bility if it proves at such a hearing plicant or recipient determined by such that it satisfied the requirements of decision to be in default in its perform- paragraph (g)(1) of this section. While ance of an assurance given by it pursu- proceedings under this paragraph are ant to this part, or to have otherwise pending, the sanctions imposed by the failed to comply with this part, unless order issued under paragraph (f) of this and until it corrects its noncompliance section shall remain in effect. and satisfies the responsible Endow- ment official that it will fully comply [38 FR 17991, July 5, 1973, as amended at 68 with this part. FR 51384, Aug. 26, 2003] (g) Post termination proceedings. (1) An applicant or recipient adversely af- § 1110.11 Judicial review. fected by an order issued under para- Action taken pursuant to section 602 graph (f) of this section shall be re- of the Act is subject to judicial review stored to full eligibility to receive Fed- as provided in section 603 of the Act. eral financial assistance if it satisfies

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§ 1110.12 Effect on other regulations; Services, and each of their organiza- forms and instructions. tional units. (a) Effects on other regulations. Noth- (b) The term Endowment means the ing in this part shall be deemed to su- National Endowment for the Arts, the persede any of the following (including National Endowment for the Human- future amendments thereof): (1) Execu- ities, or the Institute of Museum and tive Orders 10925, 11114, and 11246, and Library Services. regulations issued thereunder, or (2) (c) The term Chairman means the Executive Order 11063 and regulations Chairman of the National Endowment issued thereunder or any other regula- for the Arts, the Chairman of the Na- tions or instructions insofar as such tional Endowment for the Humanities, order, regulations, or instructions pro- or the Director of the Institute of Mu- hibit discrmination on the grounds of seum and Library Services. race, color, or national origin in any (d) The term responsible Endowment program or situation to which this part official with respect to any program re- is inapplicable, or prohibit discrimina- ceiving Federal financial assistance tion on any other ground. means the Chairman of any Endow- ment or other Endowment official des- (b) Forms and instructions. Each re- ignated by the Chairman. sponsible Endowment official shall (e) The term United States means the issue and promptly make available to States of the United States, the Dis- interested persons forms and detailed trict of Columbia, Puerto Rico, the instructions and procedures for effec- Virgin Islands, American Samoa, tuating this part as applied to pro- Guam, Wake Island, the Canal Zone, grams to which this part applies and and the territories and possessions of for which he is responsible. the United States, and the term State (c) Supervision and coordination. The means any one of the foregoing. Chairman of an Endowment may from (f) The term Federal financial assist- time to time assign to other officials of ance includes (1) grants and loans of the Endowment or to officials of other Federal funds, (2) the grant or the do- departments or agencies of the Govern- nation of Federal property and inter- ment, with the consent of such depart- ests in property, (3) the detail of Fed- ments or agencies, responsibilities in eral personnel, (4) the sale and lease of, connection with the effectuation of the and the permission to use (on other purposes of title VI of the Act and this than a casual or transient basis), Fed- part, including the achievement of ef- eral property or any interest in such fective coordination and maximum property without consideration or at a uniformity within the Endowment and nominal consideration, or at a consid- within the executive branch of the eration which is reduced for the pur- Government in the application of title pose of assisting the recipient, or in VI and this part of similar programs recognition of the public interest to be and in similar situations. Any action served by such sale or lease to the re- taken, determination made, or require- cipient, and (5) any Federal agreement, ment imposed by an official of another arrangement, or other contract which department or agency acting pursuant has as one of its purposes the provision to an assignment of responsibility of assistance. under this subsection shall have the (g) Program or activity and program same effect as though such action had mean all of the operations of any enti- been taken by the responsible official ty described in paragraphs (g)(1) of this agency. through (4) of this section, any part of which is extended Federal financial as- § 1110.13 Definitions. sistance: As used in this part: (1)(i) A department, agency, special (a) The term Foundation means the purpose district, or other instrumen- National Foundations for the Arts and tality of a State or of a local govern- the Humanities, and includes the Na- ment; or tional Endowment for the Arts, the Na- (ii) The entity of such State or local tional Endowment for the Humanities, government that distributes such as- the Institute of Museum and Library sistance and each such department or

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agency (and each other State or local sponsible Endowment official, or by a government entity) to which the as- primary recipient, as a condition to sistance is extended, in the case of as- eligibility for Federal financial assist- sistance to a State or local governance, and the term application means ment; such an application, request, or plan. (2)(i) A college, university, or other [38 FR 17991, July 5, 1973, as amended at 62 postsecondary institution, or a public FR 66826, Dec. 22, 1997; 68 FR 51383, Aug. 26, system of higher education; or 2003] (ii) A local educational agency (as defined in 20 U.S.C. 7801), system of voca- APPENDIX A TO PART 1110—FEDERAL FI- tional education, or other school sys- NANCIAL ASSISTANCE TO WHICH THIS tem; PART APPLIES (3)(i) An entire corporation, partnership, or other private organization, or 1. Assistance to groups for projects and an entire sole proprietorship— productions in the arts. (A) If assistance is extended to such 2. Surveys, research and planning in the arts. corporation, partnership, private orga- 3. Assistance to State arts agencies for nization, or sole proprietorship as a projects and productions in the arts. whole; or 4. Support of research in the humanities. (B) Which is principally engaged in 5. Support of educational programs in the the business of providing education, humanities, including the training of stu- health care, housing, social services, or dents and teachers. parks and recreation; or 6. Assistance to promote the interchange (ii) The entire plant or other com- of information in the humanities. parable, geographically separate facil- 7. Assistance to foster public under- ity to which Federal financial assist- standing and appreciation of the humanities. ance is extended, in the case of any 8. Support of the publication of scholarly other corporation, partnership, private works in the humanities. organization, or sole proprietorship; or (4) Any other entity which is estab- PART 1115—PRIVACY ACT lished by two or more of the entities REGULATIONS described in paragraph (g)(1), (2), or (3) of this section. Sec. (h) The term facility includes all or 1115.1 Purpose and scope. any portion of structures, equipment, 1115.2 Definitions. or other real or personal property or 1115.3 Procedures for notification of exist- interests therein, and the provision of ence of records pertaining to individuals. facilities includes the construction, ex- 1115.4 Procedures for requests for access to pansion, renovation, remodeling, alter- or disclosure of records pertaining to an individual. ation or acquisition of facilities. 1115.5 Correction of records. (i) The term recipient means any 1115.6 Disclosure of records to agencies or State, political subdivision of any persons other than the individual to State, or instrumentality of any State whom the record pertains. or political subdivision, any public or 1115.7 Exemptions. private agency, institution, or organi- AUTHORITY: 5 U.S.C. 552a(f). zation, or other entity or any individual, in any State, to whom Federal SOURCE: 40 FR 49286, Oct. 21, 1975, unless financial assistance is extended, di- otherwise noted. rectly or through another recipient, including any successor, assign, or trans- § 1115.1 Purpose and scope. feree thereof, but such term does not This part sets forth the National include any ultimate beneficiary. Foundation on the Arts and the Hu- (j) The term primary recipients means manities’ procedures under the Privacy any recipient which is authorized or re- Act of 1974 as required by 5 U.S.C. quired to extend Federal financial as- 552a(f). Internal guidance for Founda- sistance to another recipient. tion staff and other regulations imple- (k) The term applicant means one menting the Privacy Act are contained who submits an application, request, or or will be contained in Foundation cir- plan required to be approved by a re- culars.

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§ 1115.2 Definitions. a.m. and 5:30 p.m. or by writing to the For purposes of this part: Office of the General Counsel, National (a) Foundation means the National Endowment for the Arts or National Foundation on the Arts and the Hu- Endowment for the Humanities, Wash- manities. ington, DC 20506. It is recommended (b) Act means the Privacy Act of 1974 that requests be made in writing, since (Pub. L. 93–579). in many cases it will take several days (c) Individual means a citizen of the to ascertain whether a record exists. United States or an alien lawfully ad- (b) Requests for notification of the mitted for permanent residence. existence of a record should specifi- (d) Maintain, used with reference to a cally identify the system of records in- record means to collect, to use, to dis- volved and should state, if the re- seminate, to have control over and requestor is other than the individual to sponsibility for such record. whom the record pertains, the relation- (e) Record means any item, collection ship of the requestor to that indi- or grouping of information about an in- vidual. (Note that requests will not be dividual that is maintained by the honored by the Foundation pursuant to Foundation and that is retrievable by the Privacy Act unless made (1) by the his or her name or an identifying par- individual to whom the record per- ticular, such as a number, symbol, fin- tains, (2) by such individual’s parent if gerprint, or photograph of the indi- the individual is a minor, or (3) by such vidual. Information maintained by the individual’s legal guardian if the indi- Foundation includes, but is not limited vidual has been declared to be incom- to, education, financial transactions, petent due to physical or mental inca- medical history, employment history pacity or age by a court of competent and criminal history. jurisdiction). (f) means, with respect to Routine use (c) The Foundation will attempt to the disclosure of a record, the use of respond to a request as to whether a such a record for a purpose which is record exists within 10 working days compatible with the purpose for which from the time it receives the request or it was collected. The routine uses of from the time any required identifica- record systems maintained by the tion is established, whichever is later. Foundation were established pursuant to notice in the FEDERAL REGISTER. § 1115.4 Procedures for requests for (g) System of records means a group of access to or disclosure of records any records under the control of the pertaining to an individual. Foundation from which information about an individual is retrievable by (a) Any person may request review of his or her name or by some identifying records pertaining to him by appearing particular. at the National Endowment for the Arts, Room 1338, 2401 E Street, NW., § 1115.3 Procedures for notification of Washington, DC 20506, or the National existence of records pertaining to Endowment for the Humanities, Room individuals. 1000, 806 15th Street, NW., Washington, (a) The systems of records, as defined DC 20506 on work days between the in the Privacy Act of 1974, maintained hours of 9:00 a.m. and 5:30 p.m. or by by the National Foundation on the writing to the Office of the General Arts and the Humanities are listed an- Counsel, National Endowment for the nually in the FEDERAL REGISTER as re- Arts, or National Endowment for the quired by that Act. Any person who Humanities, Washington, DC 20506. wishes to know whether a system of (See paragraphs (b) and (c) of this sec- records contains a record pertaining to tion for identification requirements.) him may appear in person at the Na- The request should specifically identify tional Endowment for the Arts, Room the systems or records involved. The 1338, 2401 E Street NW., Washington, Foundation will strive either to make DC 20506 or the National Endowment the record available within 15 working for the Humanities, Room 1000, 806 15th days of the request or to inform the re- Street NW., Washington, DC 20506, on questor of the need for additional iden- work days between the hours of 9:00 tification or the tendering of fees (as

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specified in paragraph (d) of this sec- lllllllllllllllll tion) within 15 working days. Signature (b) In the case of persons making re- lllllllllllllllll Date quests by appearing at the Foundation, (s) My Commission expires ———————— the amount of personal identification required will of necessity vary with the However, where the record requested is sensitivity of the record involved. Ex- contained in any of the systems of cept as indicated below, reasonable records listed in paragraph (b) of this identification such as employment section, the Foundation reserves the identification cards, drivers licenses, right to require additional identifica- and credit cards will normally be action and/or to independently verify to cepted as sufficient evidence of iden- its satisfaction, the identity of the re- tity in the absence of any indications questor. to the contrary. Records in the fol- (d) Charges for copies of records will lowing systems of records, however, are be at the rate of $0.10 per photography considered to contain relatively sen- of each page. Where records are not sitive and/or detailed personal informa- susceptible to photo-copying, e.g., tion— punch cards, magnetic tapes or oversize materials, the amount charged will GRANT APPLICATIONS—NEA. be actual cost as determined on a case- GRANT APPLICATIONS—NEH. GRANTS TO INDIVIDUALS—NEA. by-case basis. Only one copy of each GRANTS TO INDIVIDUALS AND INSTITU- record requested will be supplied. No TIONS—NEH. charge will be made unless the charge EQUAL EMPLOYMENT OPPORTUNITY as computed above would exceed $3.00 CASE FILE—NFAH NEA/NEH. for each request or related series of re- EMPLOYEE PAYROLL—NFAH. quests. If a fee in excess of $25.00 would PERSONNEL RECORDS—NFAH. be required, the requestor shall be noti- Accordingly, with respect to requests for fied and the fee must be tendered be- records in these systems the Foundation re- fore the records will be copied. serves the rights to require sufficient identification to identify positively the individual § 1115.5 Correction of records. making the request. This might involve inde- (a) Any individual is entitled to re- pendent verification by the Foundation as by quest amendments of records per- phone calls to determine whether an individual has made a request, personal identi- taining to him pursuant to 5 U.S.C. fication by Foundation employees who know 552a(d)(2). Such a request shall be made the individual, or such other means as are in writing and addressed to the Office considered appropriate under the cir- of the General Counsel, National En- cumstances. dowment for the Arts or National En- (c) A written request will be honored dowment for the Humanities, Wash- only if it contains the following certifi- ington, DC 20506. cation before a duly commissioned no- (b) The request should specify the tary public of any state or territory (or record and systems of records involved, similar official if the request is made and should specify the exact correction outside the United States): desired and state that the request is made pursuant to the Privacy Act. An I,llllllllll(Printed name), do hereby certify that I am the individual about edited copy of the record showing the whom the record requested in this letter per- desired correction is desirable. Within tains or that I am within the class of persons 10 working days of the receipt of a authorized to act on his behalf in accordance properly addressed request (or within with 5 U.S.C. 552a(h). 10 working days of the time the Gen- lllllllllllllllll eral Counsel, National Endowment for Signature the Arts or the General Counsel, Na- lllllllllllllllll tional Endowment for the Humanities Date becomes aware that a particular com- In the County ofllllllllllState ofllllllllll. On this llday of —— munication not addressed as prescribed lllllllllllllllll above is a request for correction of a (Name of individual) record under the Privacy Act), the who is personally known to me, did appear General Counsel’s office shall acknowl- before me and sign the above certificate. edge receipt of the request.

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(c) The General Counsel’s office upon working days and arrange a suitable receipt of such a request shall prompt- time for the hearing. In such cases the ly confer with the office within the decision of the Assistant Chairman or Foundation responsible for the record. Chairman shall be made within 30 In the event it is felt that correction is working days after the hearing unless not warranted in whole or in part, the the time is extended and the appellant matter shall be brought to the atten- is advised in writing of such extension. tion of the Deputy Chairman of the En- (e) The final decision of the Assistant dowment involved. If, after review by Chairman or Chairman in an appeal the Deputy Chairman of the involved shall be in writing, and, if adverse to Endowment and discussion with the re- the appellant, set forth the reasons for quest or, if deemed helpful, it is deter- the refusal to amend the record and ad- mined that correction as requested is vise him of his right to appeal the deci- not warranted, a letter shall be sent by sion under 5 U.S.C. 552a(g)(1)(A). The the Deputy Chairman’s office to the re- individual shall also be notified that he questor denying his request and/or ex- has the right to file with the Founda- plaining what correction might be tion a concise statement setting forth made if agreeable to the requestor. the reasons for this disagreement with This letter shall set forth the reasons the refusal of the Foundation to amend for the refusal to honor the request for his record. correction. It shall also inform him of his right to appeal this decision and in- § 1115.6 Disclosure of records to agen- clude a description of the appeals pro- cies or persons other than the indi- cedure set forth in paragraph (d) of this vidual to whom the record pertains. section. Records subject to the Privacy Act (d) An appeal may be taken from an that are requested by any person other adverse determination under paragraph than the individual to whom they per- (c) of this section to the Assistant tain will not be made available except Chairman/Management, National En- under the following circumstances: dowment for the Arts or the Chairman, (a) Records required to be made National Endowment for the Human- available by the Freedom of Informa- ities. Such appeal must be made in tion Act will be released in response to writing and should clearly indicate a request formulated in accordance that it is an appeal. The basis for the with Foundation regulations found at appeal should be included, and it 45 CFR part 1100. should be mailed to the same address as listed in paragraph (a) of this sec- (b) Records not required by the Free- tion. A hearing at the Foundation may dom of Information Act to be released be requested. Such hearing will be in- may be released, at the discretion of formal, and shall be before the Assist- the Foundation, if the written consent ant Chairman/Management, National of the individual to whom they pertain Endowment for the Arts, the Chair- has been obtained or if such release man, National Endowment for the Hu- would be authorized under 5 U.S.C. manities, or an appointed designee. If 552a(b)(1) or (3) through (11). no hearing is requested, the request for § 1115.7 Exemptions. appeal should include the basis for the appeal. Where no hearing is requested (a) Fellowships and grants. Pursuant the Assistant Chairman or Chairman to 5 U.S.C. 552a(k)(5), the Foundation before whom the appeal is taken shall hereby exempts from the application of render his decision within thirty work- section 552a(d) any materials which ing days after receipt of the written ap- would disclose the identity of ref- peal at the Foundation, unless the As- erences for fellowship or grant appli- sistant Chairman or Chairman before cants contained in any of the Founda- whom the appeal is taken, for good tion’s systems of records. cause shown, extends the 30–day period (b) Applicants for employment. Pursu- and the appellant is advised in writing ant to 5 U.S.C. 552a(k)(5), the Founda- of such extension. If a hearing is re- tion hereby exempts from the applica- quested, the Foundation will attempt tion of 5 U.S.C. 552a(d) any materials to contact the appellant within five which would disclose the identity of

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references of applicants for employ- the system of records entitled ‘‘Official ment at the Foundation contained in Personnel Folders’’.

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PARTS 1116–1148 [RESERVED] Subpart F—Hearing Procedures 1149.26 What kind of hearing is con- PART 1149—PROGRAM FRAUD templated? CIVIL REMEDIES ACT REGULATIONS 1149.27 What is the role of the ALJ? 1149.28 What does the ALJ have the authority to do? Subpart A—Purpose and Definitions 1149.29 What rights do you have at the hearing? Sec. 1149.30 How are the functions of the ALJ 1149.1 Purpose. separated from those of the investigating 1149.2 Definitions. official and the reviewing official? 1149.31 Can the reviewing official or the Subpart B—Claims and Statements ALJ be disqualified? 1149.32 Do you have a right to review docu- 1149.3 What is a claim? ments? 1149.4 When is a claim made? 1149.33 What type of discovery is authorized 1149.5 What is a false claim? and how is it conducted? 1149.6 What is a statement? 1149.34 How are motions for discovery han- 1149.7 What is a false statement? dled? 1149.35 When may an ALJ grant a motion Subpart C—Basis for Liability for discovery? 1149.36 How are depositions handled? 1149.8 What kind of conduct results in pro- 1149.37 Are witness lists and exhibits ex- gram fraud enforcement? changed before the hearing? 1149.9 What civil penalties and assessments 1149.38 Can witnesses be subpoenaed? may I be subjected to? 1149.39 Who pays the costs for a subpoena? 1149.40 When may I file a motion to quash a Subpart D—Procedures Leading to the subpoena? Issuance of a Complaint 1149.41 Are protective orders available? 1149.42 What does a protective order pro- 1149.10 How is program fraud investigated? tect? 1149.11 May the investigating official issue 1149.43 How are documents filed and served a subpoena? with the ALJ? 1149.44 What must documents filed with the 1149.12 What happens if program fraud is ALJ include? suspected? 1149.45 How is time computed? 1149.13 When may the NEA issue a com- 1149.46 Where is the hearing held? plaint? 1149.47 How will the hearing be conducted? 1149.14 What is contained in a complaint? 1149.48 Who has the burden of proof? 1149.15 How will the complaint be served? 1149.49 How is evidence presented at the 1149.16 What constitutes proof of service? hearing? 1149.50 How is witness testimony presented? Subpart E—Procedures Following Service 1149.51 How can I exclude a witness? of a Complaint 1149.52 Will the hearing proceedings be recorded? 1149.17 How do you respond to the com- 1149.53 Are ex parte communications be- plaint? tween a party and the ALJ permitted? 1149.18 May I file a general answer? 1149.54 Are there sanctions for misconduct? 1149.19 What happens once an answer is 1149.55 What happens if I fail to comply filed? with an order? 1149.20 What must the notice of hearing in- 1149.56 Are post-hearing briefs required? clude? 1149.21 When must the ALJ serve the notice Subpart G—Decisions and Appeals of oral hearing? 1149.57 How is the case decided? 1149.22 What happens if you fail to file an 1149.58 When will the ALJ serve the initial answer? decision? 1149.23 May I file a motion to reopen my 1149.59 How are penalty and assessment case? amounts determined? 1149.24 What happens if my motion to re- 1149.60 What factors are considered in deter- open is denied? mining the amount of penalties and as- 1149.25 When, if ever, will time be tolled? sessments to impose?

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1149.61 Can a party request reconsideration mit, favorable decision, ruling, status, of the initial decision? or loan guarantee. 1149.62 When does the initial decision of the Defendant means any person alleged ALJ become final? 1149.63 What are the procedures for appeal- in a complaint to be liable for a civil ing the ALJ decision? penalty or assessment pursuant to the 1149.64 What happens if an initial decision is PFCRA. appealed? Government means the United States 1149.65 Are there any limitations on the Government. right to appeal to the authority head? 1149.66 How does the authority head dispose Group of related claims submitted at the of an appeal? same time means only those claims aris- 1149.67 Who represents the NEA on an ap- ing from the same transaction (such as peal? a grant, loan, application, or contract) 1149.68 What judicial review is available? which are submitted together as part 1149.69 Can the administrative complaint be settled voluntarily? of a single request, demand, or submis- 1149.70 How are civil penalties and assess- sion. ments collected? Initial decision means the written de- 1149.71 Is there a right to administrative cision of the Administrative Law Judge offset? (ALJ), and includes a revised initial de- 1149.72 What happens to collections? cision issued following a remand or a 1149.73 What if the investigation indicates criminal misconduct or a violation of the motion for reconsideration. False Claims Act? Investigating official means: 1149.74 How does the NEA protect your (1) The NEA Inspector General; or rights? (2) A designee of the NEA Inspector AUTHORITY: 5 U.S.C. App. 8G(a)(2); 20 U.S.C. General. 959; 28 U.S.C. 2461 note; 31 U.S.C. 3801–3812. Knows or has reason to know means SOURCE: 79 FR 67081, Nov. 12, 2014, unless that a person: otherwise noted. (1) Has actual knowledge that the claim or statement is false, fictitious, Subpart A—Purpose and or fraudulent; or Definitions (2) Acts in deliberate ignorance of the truth or falsity of the claim or state- § 1149.1 Purpose. ment; or This part implements the Program (3) Acts in reckless disregard of the Fraud Civil Remedies Act of 1986, 31 truth or falsity of the claim or state- U.S.C. 3801–3812 (PFCRA). The PFCRA ment. provides the NEA, and other Federal Makes, whenever it appears, must in- agencies, with an administrative rem- clude the terms presents, submits, and edy to impose civil penalties and as- causes to be made, presented, or sub- sessments against you if you make or mitted. As the context requires, making cause to be made false, fictitious, or or made must likewise include the cor- fraudulent claims or written state- responding forms of such terms. ments to the NEA. The PFCRA also Person means any individual, part- provides due process protections to you nership, corporation, association, or if you are subject to administrative proceedings under this part. private organization, and includes the plural of that term. § 1149.2 Definitions. Representative means an attorney who For the purposes of this part— is in good standing of the bar of any Authority means the National Endow- State, Territory, or possession of the ment for the Arts. United States, or of the District of Co- Authority Head means the Chair- lumbia, or the Commonwealth of Puer- person/head of the National Endow- to Rico, or any other individual des- ment for the Arts or the Chairperson/ ignated in writing by you. authority head/s designee. Reviewing official means the General Benefit means anything of value, in- Counsel of the NEA or the General cluding but not limited to, any advan- Counsel’s designee. tage, preference, privilege, license, per-

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Subpart B—Claims and (1) Is false, fictitious or fraudulent; Statements (2) Includes or is supported by a written statement which asserts or con- § 1149.3 What is a claim? tains a material fact which is false, fic- (a) Claim means any request, de- titious, or fraudulent; mand, or submission: (3) Includes or is supported by a writ- (1) Made to the NEA for property, ten statement which is false, fictitious services, or money (including money or fraudulent because it omits a mate- representing grants, loans, insurance rial fact that you have a duty to in- or benefits); clude in the statement; or (2) Made to a recipient of property or (4) Is for payment for the provision of services from the NEA, or to a party to property or services which you have a contract with the NEA for property not provided as claimed. or services if the United States: (b) [Reserved] (i) Provided such property or serv- § 1149.6 What is a statement? ices; (ii) Provided any portion of the funds (a) A statement means any written for the purchase of such property or representation, certification, affirma- services; or tion, document, record, or accounting (iii) Will reimburse such recipient or or bookkeeping entry made with re- party for the purchase of such property spect to a claim (including relating to or services; eligibility to make a claim) or to ob- (3) Made to the NEA for the payment tain the approval or payment of a of money (including money rep- claim (including relating to eligibility resenting grants, loans, insurance, or to make a claim); or with respect to benefits) if the United States: (including relating to eligibility for) a (i) Provided any portion of the money contract, bid or proposal for a contract requested or demanded; or with the NEA, or a grant, loan or other (ii) Will reimburse such recipient or benefit from the NEA, including appli- party for any portion of the money cations and proposals for such grants, paid on such request or demand; or loans, or other benefits, if the United (4) Made to the NEA which has the States Government provides any por- effect of decreasing an obligation to tion of the money or property under pay or account for property, services, such contract or for such grant, loan or or money. benefit, or if the Government will re- (b) A claim can relate to grants, imburse any party for any portion of loans, insurance, or other benefits, and the money or property under such con- includes the NEA guaranteed loans tract or for such grant, loan, or ben- made by participating lenders. efit. (c) Each voucher, invoice, claim (b) A statement is made, presented, form, or individual request or demand or submitted to the NEA when such for property, services, or money con- statement is actually made to an stitutes a separate claim. agent, fiscal intermediary, or other person or entity acting for or on behalf § 1149.4 When is a claim made? of the NEA, including any State or po- A claim is made to the NEA, when litical subdivision of a State, acting for such claim is actually made to: or on behalf of the NEA; or the recipi- (a) An agent, fiscal intermediary, or ent of property, services, or money other person or entity, including any from the Government; or the party to a State or political subdivision of a contract with the NEA. State, acting for or on behalf of the NEA; or § 1149.7 What is a false statement? (b) A recipient of property, services, (a) A statement submitted to the or money from the Government, or the NEA is a false statement if you make party to a contract with the NEA. the statement, or cause the statement to be made, while knowing or having § 1149.5 What is a false claim? reason to know that the statement: (a) A claim submitted to the NEA is (1) Asserts a material fact that is ‘‘false’’ if it: false, fictitious, or fraudulent; or

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(2) Is false, fictitious, or fraudulent made payment (including transferred because it omits a material fact that property or provided services), an as- you have a duty to include in the state- sessment may be imposed against any ment and contains or is accompanied such person or jointly and severally by an express certification or affirma- against any combination of persons. tion of the truthfulness and accuracy [79 FR 67081, Nov. 12, 2014, as amended at 82 of the contents of the statement. FR 27434, June 15, 2017; 83 FR 2073, Jan. 16, (b) Each written representation, cer- 2018] tification, or affirmation constitutes a separate statement. Subpart D—Procedures Leading to the Issuance of a Complaint Subpart C—Basis for Liability § 1149.10 How is program fraud inves- § 1149.8 What kind of conduct results tigated? in program fraud enforcement? The Inspector General, or his/her des- If you make false claims or false ignee, is the investigating official restatements, you may be subject to civil sponsible for investigating allegations penalties and assessments under the that you have made a false claim or PFCRA. statement.

§ 1149.9 What civil penalties and as- § 1149.11 May the investigating official sessments may I be subjected to? issue a subpoena? (a) In addition to any other penalties (a) Yes. The Inspector General has that may be prescribed by law, the authority to issue administrative sub- PFCRA may subject you to the fol- poenas for the production of records lowing: and documents. If an investigating offi- (1) A civil penalty of not more than cial concludes that a subpoena is war- $10,957 for each false, fictitious or ranted, he/she may issue a subpoena. fraudulent statement or claim; and (1) The issued subpoena must notify (2) If the NEA has made any pay- you of the authority under which it is ment, transferred property, or provided issued and must identify the records or services in reliance on a false claim, documents sought; you are also subject to an assessment (2) The investigating official may of not more than twice the amount of designate a person to act on his or her the false claim. This assessment is in behalf to receive the documents lieu of damages sustained by the NEA sought; and because of the false claim. (3) You are required to tender to the (b) Each false, fictitious, or fraudu- investigating official, or the person lent claim for property, services, or designated to receive the documents, a money is subject to a civil penalty re- certification that: gardless of whether such property, (i) The documents sought have been services, or money is actually delivered produced; or paid. (ii) Such documents are not available (c) No proof of specific intent to de- and the reasons therefore; or fraud is required to establish liability (iii) Such documents, suitably identi- under this section for either false fied, have been withheld based upon the claims or false statements. assertion of an identified privilege. (d) [Reserved] (b) Nothing in this section precludes (e) In any case in which it is deter- or limits an investigating official’s dis- mined that more than one person is lia- cretion to refer allegations within the ble for making a false, fictitious, or Department of Justice for suit under fraudulent claim or statement under the False Claims Act or other civil re- this section, each such person may be lief, or to defer or postpone a report or held liable for a civil penalty and as- referral to the reviewing official to sessment under this section. avoid interference with a criminal in- (f) In any case in which it is deter- vestigation or prosecution. mined that more than one person is lia- (c) Nothing in this section modifies ble for making a claim under this sec- any responsibility of an investigating tion on which the Government has official to report violations of criminal

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law to the appropriate component of value of property or services demanded the Department of Justice. or requested in a false claim, or a group of related claims submitted at § 1149.12 What happens if program the same time, does not exceed $150,000. fraud is suspected? (a) If the investigating official con- § 1149.14 What is contained in a com- cludes that an action under this part is plaint? warranted, the investigating official (a) A complaint is a written statement submits a report containing the find- giving you notice of the specific allega- ings and conclusions of the investigations being referred for adjudication tion to the reviewing official. and of your right to request a hearing (b) If the reviewing official deter- regarding those allegations. mines that the report provides ade- (b) The reviewing official may join in quate evidence that you have made a a single complaint, false claims or false, fictitious or fraudulent claim or statements that are unrelated, or that statement, the reviewing official shall were not submitted simultaneously, so transmit to the Attorney General writ- long as each claim made does not exten notice of an intention to refer the ceed the amount provided in 31 U.S.C. matter for adjudication, with a request 3803(c). for approval of such referral. This no- (c) The complaint must state that tice will include the reviewing offi- the NEA seeks to impose civil pen- cial’s statements concerning: alties, assessments, or both, against (1) The reasons for the referral; you and will include: (2) The claims or statements upon (1) The allegations of liability which liability would be based; against you, including the statutory (3) The evidence that supports liabil- basis for liability, identification of the ity; claims or statements involved, and the (4) An estimate of the amount of reasons liability allegedly arises from money or the value of property, serv- such claims or statements; ices, or other benefits requested or de- (2) The maximum amount of pen- manded in the false claim or state- alties and assessments for which you ment; may be held liable; (5) Any exculpatory or mitigating circumstances that may relate to the (3) A statement that you may request claims or statements known by the re- a hearing by filing an answer and may viewing official or the investigating of- be represented by a representative; ficial; and (4) Instructions for filing such an an- (6) A statement that there is a rea- swer; and sonable prospect of collecting an ap- (5) A warning that failure to file an propriate amount of penalties and as- answer within 30 days of service of the sessments. complaint will result in imposition of (c) If, at any time, the Attorney Gen- the maximum amount of penalties and eral or his or her designee requests in assessments. writing that this administrative proc- (d) The reviewing official must serve ess be stayed, the authority head must you with any complaint and, if you re- stay the process immediately. The au- quest a hearing, provide a copy to the thority head may order the process re- ALJ assigned to the case. sumed only upon receipt of the written authorization of the Attorney General. § 1149.15 How will the complaint be served? § 1149.13 When may the NEA issue a (a) The complaint must be served on complaint? you as an individual directly, on a The NEA may issue a complaint: partnership through a general partner, (a) If the Attorney General, or his/her and on corporations or on unincor- designee, approves the referral of the porated associations through an execu- allegations for adjudication in a writ- tive officer or a director. Service may ten statement; and also be made on any person authorized (b) In a case of submission of false by appointment or by law to receive claims, if the amount of money or the process for you or a legal entity.

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(b) The complaint may be served ei- set forth in § 1149.17(b), you may file ther by: with the reviewing official a general (1) Registered or certified mail; or answer denying liability, requesting a (2) Personal delivery by anyone 18 hearing, and requesting an extension of years of age or older. time in which to file a complete an- (c) The date of service is the date of swer. A general answer must be filed personal delivery or, in the case of within 30 days of service of the com- service by registered or certified mail, plaint. the date of postmark. (b) If you file a general answer re- § 1149.16 What constitutes proof of questing an extension of time, the re- service? viewing official must promptly file (a) Proof of service is established by with the ALJ the complaint, the gen- the following: eral answer, and the request for an ex- (1) When service is made by reg- tension of time. istered or certified mail, the return (c) For good cause shown, the ALJ postal receipt will serve as proof of may grant you up to 30 additional days service. within which to file an answer meeting (2) When service is made by personal the requirements of paragraph (b) of delivery, an affidavit of the individual this section. You must file the answer serving the complaint, or written ac- with the ALJ and serve a copy on the knowledgment of your receipt or of re- reviewing official. ceipt by a representative, will serve as proof of service. § 1149.19 What happens once an an- (b) When served with the complaint, swer is filed? the serving party must also serve you (a) When the reviewing official re- with a copy of this part and 31 U.S.C. ceives an answer, he/she must simulta- 3801–3812. neously file the complaint, the answer, and a designation of the NEA’s rep- Subpart E—Procedures Following resentative with the ALJ. Service of a Complaint (b) When the ALJ receives the com- § 1149.17 How do you respond to the plaint and the answer, he/she will complaint? promptly serve a notice of hearing upon you and the NEA representative, (a) You may respond to the complaint by filing an answer with the re- in the same manner as the complaint. viewing official within 30 days of serv- At the same time, the ALJ must send ice of the complaint. A timely answer a copy of such notice to the reviewing will be considered a request for an oral official or his designee. hearing. (b) In the answer, you— § 1149.20 What must the notice of hear- (1) Must admit or deny each of the al- ing include? legations of liability contained in the The notice must include: complaint (a failure to deny an allega- (a) The tentative time, place, and nation is considered an admission); ture of the hearing; (2) Must state any defense on which (b) The legal authority and jurisdic- you intend to rely; tion under which the hearing is being (3) May state any reasons why you held; believe the penalties, assessments, or (c) The matters of fact and law to be both should be less than the statutory asserted; maximum; and (4) Must state the name, address, and (d) A description of the procedures telephone number of the person author- for the conduct of the hearing; ized by you to act as your representa- (e) The name, address, and telephone tive, if any. number of your representative and the NEA’s representative; and § 1149.18 May I file a general answer? (f) Such other matters as the ALJ (a) If you are unable to file a timely deems appropriate. answer which meets the requirements

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§ 1149.21 When must the ALJ serve the § 1149.24 What happens if my motion notice of oral hearing? to reopen is denied? Unless the parties agree otherwise, (a) You may appeal the decision de- the ALJ must serve the notice of oral nying a motion to reopen to the au- hearing within six years of the date on thority head by filing a notice of ap- which the claim or statement is made. peal with the authority head within 15 days after the ALJ denies the motion. § 1149.22 What happens if you fail to The timely filing of a notice of appeal file an answer? must stay the initial decision until the (a) If you do not file any answer authority head decides the issue. within 30 days after service of the com- (b) If you file a timely notice of ap- plaint, the reviewing official may refer peal with the authority head, the ALJ the complaint to the ALJ. must forward the record of the pro- (b) Once the complaint is referred, ceeding to the authority head. the ALJ will promptly serve on you a (c) The authority head must decide notice that he/she will issue an initial promptly, based solely on the record decision. previously before the ALJ, whether ex- (c) The ALJ will assume the facts al- traordinary circumstances excuse your leged in the complaint are true. If such failure to file a timely answer. facts establish liability under the stat- (d) If the authority head decides that ute, the ALJ will issue an initial deci- extraordinary circumstances excused sion imposing the maximum amount of your failure to file a timely answer, penalties and assessments allowed the authority head must remand the under the PFCRA. case to the ALJ with instructions to (d) Except as otherwise provided in grant you an opportunity to answer. this section, when you fail to file a (e) If the authority head decides that timely answer, you waive any right to your failure to file a timely answer is further review of the penalties and as- not excused, the authority head must sessments imposed in the initial deci- reinstate the initial decision of the sion. This initial decision will become ALJ, which becomes final and binding final and binding 30 days after it is upon the parties 30 days after the au- issued. thority head issues such a decision. § 1149.23 May I file a motion to reopen my case? § 1149.25 When, if ever, will time be tolled? (a) You may file a motion with the Time will be tolled in the following ALJ asking him/her to reopen the case at any time before an initial decision instances: becomes final. The ALJ may only re- (a) If you are granted a 30 day exten- open a case if, in this motion, he/she sion to file your answer, the 30 days determines that you set forth extraor- will be tolled to the six year oral hear- dinary circumstances that prevented ing limitation thereby providing the you from filing a timely answer. The ALJ six years and 30 days to serve the initial decision will be stayed until the notice of oral hearing as discussed in ALJ makes a decision on your motion § 1149.18(c); to reopen. The reviewing official may (b) If a notice of appeal is filed as dis- respond to the motion. cussed in § 1149.24(a); (b) If the ALJ determines that you (c) If a motion is filed to disqualify a have demonstrated extraordinary cir- reviewing official or an ALJ disquali- cumstances excusing your failure to fies himself/herself as discussed in file a timely answer, the ALJ will § 1149.31(c); or withdraw the initial decision and grant (d) In any other instance in which you an opportunity to answer the com- time is suspended or delayed as a result plaint. of an appeal, request for reconsider- (c) A decision by the ALJ to deny ation, untimely filing, or extensions. your motion to reopen a case is not subject to review or reconsideration.

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Subpart F—Hearing Procedures judgment where there is no disputed issue of material fact; § 1149.26 What kind of hearing is con- (13) Conduct any conference, argu- templated? ment or hearing on motions in person The hearing is a formal proceeding or by telephone; and conducted by the ALJ during which (14) Exercise such other authority as you will have the opportunity to dis- is necessary to carry out the respon- pute liability, present testimony, and sibilities of the ALJ under this part. cross-examine witnesses. (b) The ALJ does not have the authority to find Federal statutes or reg- § 1149.27 What is the role of the ALJ? ulations invalid. (a) An ALJ, who will be retained by the NEA, serves as the presiding officer § 1149.29 What rights do you have at at all hearings. ALJs are selected by the hearing? the Office of Personnel Management. Each party to the hearing has the The ALJ is assigned to cases in rota- right to: tion so far as practicable, and may not (a) Be represented by a representa- perform duties inconsistent with their tive; duties and responsibilities as adminis- (b) Request a pre-hearing conference trative law judges. and participate in any conference held (b) The ALJ must conduct a fair and by the ALJ; impartial hearing, avoid delay, main- (c) Conduct discovery; tain order, and assure that a record of (d) Agree to stipulations of fact or the proceeding is made. law which will be made a part of the § 1149.28 What does the ALJ have the record; authority to do? (e) Present evidence relevant to the (a) The ALJ has the authority to— issues at the hearing; (1) Set and change the date, time, (f) Present and cross-examine wit- and place of the hearing upon reason- nesses; able notice to the parties; (g) Present arguments at the hearing (2) Continue or recess the hearing, in as permitted by the ALJ; and whole or in part, for a reasonable pe- (h) Submit written briefs and pro- riod of time; posed findings of fact and conclusions (3) Hold conferences to identify or of law after the hearing, as permitted simplify the issues or to consider other by the ALJ. matters that may aid in the expeditious disposition of the proceeding; § 1149.30 How are the functions of the (4) Administer oaths and affirma- ALJ separated from those of the investigating official and the review- tions; ing official? (5) Issue subpoenas requiring the attendance of witnesses and the produc- (a) The investigating official, the re- tion of documents at depositions or at viewing official, and any employee or hearings; agent of the authority who takes part (6) Rule on motions and other proce- in investigating, preparing, or pre- dural matters; senting a particular case may not, in (7) Regulate the scope and timing of such case or a factually related case: discovery; (1) Participate in the hearing as the (8) Regulate the course of the hearing ALJ; and the conduct of representatives and (2) Participate or advise in the review parties; of the initial decision by the authority (9) Examine witnesses; head; or (10) Receive, rule on, exclude, or (3) Make the collection of penalties limit evidence; and assessment. (11) Upon motion of a party, take of- (b) The ALJ must not be responsible ficial notice of facts; to or subject to the supervision or di- (12) Upon motion of a party, decide rection of the investigating official or cases, in whole or in part, by summary the reviewing official.

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§ 1149.31 Can the reviewing official or tained in a document that would other- the ALJ be disqualified? wise be privileged. If the document (a) A reviewing official or an ALJ would otherwise be privileged, only may disqualify himself or herself at that portion containing exculpatory in- any time. formation must be disclosed. (b) Upon motion of any party, the re- (b) The notice sent to the Attorney viewing official or ALJ may be dis- General from the reviewing official is qualified as follows: not discoverable under any cir- (1) The motion must be supported by cumstances. an affidavit containing specific facts (c) If the reviewing official does not establishing that personal bias or other respond to your request within 20 days, reason for disqualification exists, in- you may file a motion to compel dis- cluding the time and circumstances of closure of the documents with the ALJ the discovery of such facts; subject to the provisions of this sec- (2) The motion must be filed promptly after discovery of the grounds for tion. Such a motion may only be filed disqualification or the objection will be with the ALJ following the filing of an deemed waived; and answer. (3) The party, or representative of record, must certify in writing that the § 1149.33 What type of discovery is authorized and how is it conducted? motion is made in good faith. (c) Once a motion has been filed to (a) The following types of discovery disqualify the reviewing official or the are authorized: ALJ, the ALJ will halt the proceedings (1) Requests for production of docu- until resolving the matter of disquali- ments for inspection and copying; fication. If the ALJ determines that (2) Requests for admissions of the au- the reviewing official is disqualified, thenticity of any relevant document or the ALJ will dismiss the complaint of the truth of any relevant fact; without prejudice. If the ALJ disquali- (3) Written interrogatories; and fies himself/herself, the case will be (4) Depositions. promptly reassigned to another ALJ. (b) For the purpose of this section, However, if the ALJ denies a motion to disqualify, the matter will be deter- the term documents includes informa- mined by the authority head only dur- tion, documents, reports, answers, ing his/her review of the initial deci- records, accounts, papers, electronic sion on appeal. data and other data and documentary evidence. Nothing contained herein § 1149.32 Do you have a right to review must be interpreted to require the cre- documents? ation of a document. (a) Yes. Once the ALJ issues a hear- (c) Unless mutually agreed to by the ing notice, and upon written request to parties, discovery is available only as the reviewing official, you may: ordered by the ALJ. The ALJ must reg- (1) Review any relevant and material ulate the timing of discovery. documents, transcripts, records, and other materials that relate to the alle- § 1149.34 How are motions for dis- gations set out in the complaint and covery handled? upon which the findings and conclu- Motions for discovery must be han- sions of the investigating official are dled according to the following: based, unless such documents are sub- (a) A party seeking discovery may ject to a privilege under Federal law. file a motion with the ALJ. Such a mo- Upon payment of fees for duplication, you may obtain copies of such docu- tion must be accompanied by a copy of ments; and the requested discovery, or in the case (2) Obtain a copy of all exculpatory of depositions, a summary of the scope information in the possession of the re- of the proposed deposition. viewing official or investigating offi- (b) Within 10 days of service, a party cial relating to the allegations in the may file an opposition to the motion complaint. You may obtain excul- and/or a motion for protective order. patory information even if it is con-

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§ 1149.35 When may an ALJ grant a of any witness whose name does not ap- motion for discovery? pear on the witness list or any exhibit (a) The ALJ may grant a motion for not provided to an opposing party in discovery only if he/she finds that the advance unless the ALJ finds good discovery sought— cause for the omission or concludes (1) Is necessary for the expeditious, that there is no prejudice to the object- fair, and reasonable consideration of ing party. the issues; (c) Documents exchanged in accord- (2) Is not unduly costly or burden- ance with this section are deemed to be some; authentic for the purpose of admissi- (3) Will not unduly delay the pro- bility at the hearing unless a party ob- ceeding; and jects within the time set by the ALJ. (4) Does not seek privileged information. § 1149.38 Can witnesses be subpoenaed? (b) The burden of showing that discovery should be allowed is on the (a) A party wishing to procure the party seeking discovery. appearance and testimony of any indi- (c) The ALJ may grant discovery vidual at the hearing may request that subject to a protective order. the ALJ issue a subpoena. (b) A subpoena requiring the attend- § 1149.36 How are depositions han- ance and testimony of an individual dled? may also require the individual to (a) Depositions are to be handled in produce documents at the hearing. the following manner: (c) A party seeking a subpoena must (1) If a motion for deposition is file a written request not less than 15 granted, the ALJ must issue a sub- days before the date of the hearing un- poena for the deponent, which may re- less otherwise allowed by the ALJ upon quire the deponent to produce docu- a showing of good cause. Such request ments. The subpoena must specify the must specify any documents to be pro- time and place at which the deposition duced, must designate the witnesses, will be held. and describe the address and location (2) The party seeking to depose must of the desired witness with sufficient serve the subpoena in the manner pre- particularity to permit such witnesses scribed by § 1149.12. to be found. (3) The deponent may file with the (d) The subpoena must specify the ALJ a motion to quash the subpoena or time and place at which the witness is a motion for a protective order within to appear and any documents the wit- 10 days of service. ness is to produce. (4) The party seeking to depose must (e) The party seeking the subpoena provide for the taking of a verbatim must serve it in the manner prescribed transcript of the deposition, which it in § 1149.11. A subpoena on a party or must make available to all other par- upon an individual under the control of ties for inspection and copying. a party may be served by first class (b) Each party must bear its own mail. costs of discovery. § 1149.39 Who pays the costs for a sub- § 1149.37 Are witness lists and exhibits poena? exchanged before the hearing? The party requesting a subpoena (a) The parties must exchange wit- must pay the cost of the fees and mile- ness lists and copies of proposed hear- age of any witness subpoenaed in the ing exhibits at least 15 days before the amounts that would be payable to a hearing or at such other time as or- witness in a proceeding in United dered by the ALJ. This includes copies States District Court. A check for wit- of any written statements or tran- ness fees and mileage must accompany scripts of deposition testimony that the subpoena when served, except that each party intends to offer in lieu of when a subpoena is issued on behalf of live testimony. the NEA, a check for witness fees and (b) If a party objects, the ALJ will mileage need not accompany the sub- not admit into evidence the testimony poena.

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§ 1149.40 When may I file a motion to § 1149.43 How are documents filed and quash a subpoena? served with the ALJ? A party, entity or the person to (a) Documents are considered filed whom the subpoena is directed, may when they are mailed. The date of file with the ALJ a motion to quash mailing may be established by a cer- the subpoena: tificate from the party or his/her rep- (a) Within 10 days after service; or resentative, or by proof that the docu- (b) On or before the time specified in ment was sent by certified or reg- the subpoena for compliance if it is less istered mail. than 10 days after service. (b) A party filing a document with the ALJ must, at the time of filing, § 1149.41 Are protective orders avail- serve a copy of such document on every able? other party. When a party is rep- A party or prospective witness or de- resented by a representative, the par- ponent may file a motion for a protec- ty’s representative must be served in tive order with respect to discovery lieu of the party. sought by an opposing party or with re- (c) A certificate of the individual spect to the hearing, seeking to limit serving the document by personal de- the availability of an individual or dis- livery or mail and setting forth the closure of evidence. manner of service will be proof of service. § 1149.42 What does a protective order (d) Service upon any party of any protect? document other than the complaint must be made by delivering a copy or In issuing a protective order, the by placing a copy in the United States ALJ may make any order which justice mail, postage prepaid and addressed to requires to protect a party or person the party’s last known address. from annoyance, embarrassment, op- (e) If a party consents in writing, pression, or undue burden or expense, documents may be sent electronically. including one or more of the following: In this instance, service is complete (a) That the discovery not be had; upon transmission unless the serving (b) That the discovery may be had party receives electronic notification only under specified terms and condi- that transmission of the communications, including a designation of the tion was not completed. time or place; (c) That the discovery may be had § 1149.44 What must documents filed only through a different method of dis- with the ALJ include? covery than requested; (a) Documents filed with the ALJ (d) That certain matters are not in- must include: quired into, or that the scope of dis- (1) An original; and covery is limited to certain matters; (2) Two copies. (e) That only those persons des- (b) Every document filed in the pro- ignated by the ALJ may be present ceeding must contain: during discovery; (1) A title, for example, ‘‘motion to (f) That the contents of the discovery quash subpoena’’; or evidence are sealed; (2) A caption setting forth the title of (g) That a sealed deposition is opened the action; and only by order of the ALJ; (3) The case number assigned by the (h) That a trade secret or other con- ALJ. fidential research, development, com- (c) Every document must be signed mercial information, or facts per- by the filer, or his/her representative, taining to any criminal investigation, and contain the address or telephone proceeding, or other administrative in- number of that person. vestigation not be disclosed or be disclosed only in a designated way; or § 1149.45 How is time computed? (i) That the parties simultaneously (a) In computing any period of time file specified documents or information under this part or in an order issued enclosed in sealed envelopes to be under it, the time begins with the day opened as directed by the ALJ. following the act, event, or default, and

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includes the last day of the period, un- § 1149.48 Who has the burden of proof? less it is a Saturday, Sunday, or legal (a) The NEA must prove your liabil- holiday observed by the Federal gov- ity and any aggravating factors by a ernment, in which event it includes the preponderance of the evidence. next business day. (b) You must prove any affirmative (1) Time calculating example. If the defenses and any mitigating factors by ALJ denies your motion for an appeal a preponderance of the evidence. on Wednesday, December 10th you have 15 days to file the notice of appeal. § 1149.49 How is evidence presented at Since the 15th day falls on Christmas, the hearing? a legal holiday observed by the Federal (a) The ALJ determines the admissi- government, the deadline will be the bility of evidence. next business day, Friday, December (b) Except as provided in this part, 26th. the ALJ is not bound by the Federal (2) [Reserved] Rules of Evidence. However, the ALJ (b) When the period of time allowed may choose to apply the Federal Rules is less than seven days, intermediate of Evidence where he/she deems appro- Saturdays, Sundays, and legal holidays priate, for example, to exclude unreli- observed by the Federal government able evidence. must be excluded from the computa- (c) The ALJ must exclude irrelevant tion. and immaterial evidence. (c) Where a document has been served (d) Although relevant, evidence may or issued by placing it in the mail, an be excluded if its probative value is additional five days will be added to substantially outweighed by the danger the time permitted for any response. of unfair prejudice, confusion of the issues, or by considerations of undue § 1149.46 Where is the hearing held? delay or needless presentation of cumu- The ALJ may hold the hearing: lative evidence. (a) In any judicial district of the (e) Although relevant, evidence may United States: be excluded if it is privileged under (b) In which you reside or transact Federal law. (f) The following evidence concerning business; or offers of compromise or settlement is (c) In which the claim or statement inadmissible when offered to prove li- on which liability is based was made to ability for, invalidity of, or amount of the NEA; or a claim that was disputed as to valid- (d) In such other place as agreed upon ity or amount, or to impeach through a by you and the ALJ. prior inconsistent statement or con- § 1149.47 How will the hearing be con- tradiction: ducted? (1) Providing, offer, or promising to provide a valuable consideration in (a) The ALJ conducts a hearing on compromising or attempting to com- the record in order: promise the claim; (1) To determine whether you are lia- (2) Accepting, offering, or promising ble for a civil penalty, assessment, or to accept a valuable consideration in both; and compromising or attempting to com- (2) If so, to determine the appropriate promise the claim; and amount of the penalty and/or assess- (3) Conduct or statements made in ment, considering any aggravating or compromise negotiations regarding the mitigating factors. claim, except when offered in a crimi- (b) The hearing will be recorded and nal case and the negotiations related transcribed, and the transcript of testi- to a claim by a public office or author- mony, exhibits admitted at the hear- ity in the exercise of regulatory, inves- ing, and all papers filed in the pro- tigative, or enforcement authority. ceeding constitute the record for a de- (g) The ALJ must permit the parties cision by the ALJ. to introduce rebuttal witnesses and (c) The hearing will be open to the evidence. public unless otherwise ordered by the (h) All documents and other evidence ALJ for good cause shown. taken for the record must be open to

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examination by all parties unless oth- (b) In the case of a party that is not erwise ordered by the ALJ. an individual, an officer or employee of the party appearing for the entity pro § 1149.50 How is witness testimony se or designated by the party’s rep- presented? resentative; or (a) Except as provided in paragraph (c) An individual whose presence is (b) of this section, testimony at the shown by a party to be essential to the hearing must be given orally by wit- presentation of its case, including an nesses under oath or affirmation. individual employed by the Govern- (b) At the discretion of the ALJ, tes- ment engaged in assisting the rep- timony may be admitted in the form of resentative for the Government. a written statement or deposition. (1) Any such statement must be pro- § 1149.52 Will the hearing proceedings vided to all other parties along with be recorded? the last known address of such witness, (a) The hearing will be recorded and in a manner which allows sufficient transcribed. Transcripts may be ob- time for other parties to subpoena the tained after the conclusion of the hear- witness for cross-examination at the ing and at a cost no greater than the hearing. actual cost of duplication. (2) Prior written statements of wit- (b) The transcript of testimony, ex- nesses proposed to testify at the hear- hibits and other evidence admitted at ing and deposition transcripts must be the hearing, and all papers and re- exchanged. quests filed in the proceeding con- (c) The ALJ must exercise reasonable stitute the record for the decision by control over the mode and order of in- the ALJ and the authority head. terrogating witnesses and presenting (c) The hearings will be recorded ei- evidence so as to: ther electronically or by a court re- (1) Make the interrogation and pres- porter. If the authority does not intend entation effective for ascertaining the to arrange for a court reporter, you can truth; arrange for one. If you do, you have to (2) Avoid needless consumption of pay the reporter’s appearance fees. time; and (d) Upon payment of a reasonable fee, (3) Protect witnesses from harass- the record may be inspected and copied ment and undue embarrassment. by anyone, unless otherwise ordered by (d) The ALJ must permit the parties the ALJ. to conduct such cross examination as may be required for a full and true dis- § 1149.53 Are ex parte communications closure of the facts. between a party and the ALJ per- (e) At the discretion of the ALJ, a mitted? witness may be cross examined on mat- Ex parte communications between a ters relevant to the proceeding without party and the ALJ are not permitted regard to the scope of his or her direct unless the other party consents to such examination. To the extent permitted a communication taking place. This by the ALJ, cross-examination on mat- does not prohibit a party from inquir- ters outside the scope of direct exam- ing about the status of a case or asking ination must be conducted in the man- routine questions concerning adminis- ner of direct examination. Leading trative functions or procedures. questions may be used only if the witness is a hostile witness, an adverse § 1149.54 Are there sanctions for mis- party, or a witness identified with an conduct? adverse party. (a) The ALJ may sanction a person, including any party or representative, § 1149.51 How can I exclude a witness? as outlined in § 1149.55, for the fol- Upon motion of any party, the ALJ lowing: must order witnesses excluded from the (1) Failing to comply with an order, hearing room so that they cannot hear rule, or procedure governing the pro- the testimony of other witnesses. This ceeding; rule does not authorize exclusion of— (2) Failing to prosecute or defend an (a) A party who is an individual; action; or

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(3) Engaging in other misconduct record must contain findings of fact, that interferes with the speedy, or- conclusions of law, and the amount of derly, and fair conduct of a hearing. any penalties and assessments im- (b) Any sanction issued under this posed. section must reasonably relate to the (b) The findings of fact must include severity and nature of the misconduct. a finding on each of the following issues: § 1149.55 What happens if I fail to com- (1) Whether any one or more of the ply with an order? claims or statements identified in the (a) When a party fails to comply with complaint, in whole or in part, violate an order, including an order for taking this part; and a deposition, the production of evi- (2) If you are liable for penalties or dence within the party’s control, or a assessments, the appropriate amount request for admission, the ALJ may: of any such penalties or assessments, (1) Draw an inference in favor of the considering any mitigating or aggra- requesting party with regard to the in- vating factors that are proven by a pre- formation sought; ponderance of the evidence during the (2) In the case of requests for admis- hearing. sion, deem each matter of which an admission is requested to be admitted; § 1149.58 When will the ALJ serve the (3) Prohibit the party failing to com- initial decision? ply with such order from introducing (a) The ALJ will serve the initial de- evidence concerning, or otherwise rely- cision on all parties within 90 days ing upon testimony relating to the in- after the close of the hearing, or within formation sought; and 90 days after the final post-hearing (4) Strike any part of the pleadings brief was filed. or other submissions of the party fail- (b) At the same time as the initial ing to comply with such a request. decision, the ALJ must serve a state- (b) If a party fails to prosecute or de- ment describing your rights if you are fend an action under this part com- found liable for a civil penalty or as- menced by service of a notice of hear- sessment to file a motion for reconsid- ing, the ALJ may dismiss the action or eration with the ALJ or a notice of ap- may issue an initial decision imposing peal with the authority head. penalties and assessments. (c) If the ALJ fails to meet the dead- (c) The ALJ may refuse to consider line contained in this section, he or she any motion, request, response, brief or must notify the parties of the reason other document which is not filed in a for the delay and must set a new dead- timely fashion. line. (d) Unless the initial decision of the § 1149.56 Are post-hearing briefs required? ALJ is timely appealed to the authority head, or a motion for reconsider- Any party may file a post-hearing ation of the initial decision is timely brief; but, such briefs are not required, filed, the initial decision must con- unless ordered by the ALJ. The ALJ stitute the final decision of the author- must fix the time for filing such briefs, ity head and must be final and binding not to exceed 60 days from the date the on the parties 30 days after it is issued parties receive the transcript of the by the ALJ. hearing or, if applicable, the stipulated record. Such briefs may be accom- § 1149.59 How are penalty and assess- panied by proposed findings of fact and ment amounts determined? conclusions of law. The ALJ may per- In determining an appropriate mit the parties to file reply briefs. amount of civil penalties and assessments, the ALJ and the authority Subpart G—Decisions and head, upon appeal, should evaluate any Appeals circumstances that mitigate or aggravate the violation and should articu- § 1149.57 How is the case decided? late in their opinions the reasons that (a) The ALJ will issue an initial deci- support the penalties and assessments sion based only on the record. The they impose.

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§ 1149.60 What factors are considered ticipation in the program or in similar in determining the amount of pen- transactions; alties and assessments to impose? (15) Whether you have been found, in (a) Although not exhaustive, the fol- any criminal, civil, or administrative lowing factors are among those that proceeding, to have engaged in similar may influence the ALJ and the author- misconduct or dealt dishonestly with ity head in determining the amount of the Government of the United States penalties and assessments to impose or a state, directly or indirectly; and with respect to the misconduct charged (16) The need to deter you and others in the complaint: from engaging in the same or similar (1) The number of false, fictitious, or misconduct. fraudulent claims or statements; (b) Nothing in this section must be (2) The time period over which such construed to limit the ALJ or the au- claims or statements were made; thority head from considering any other factors that in any given case (3) The degree of your culpability may mitigate or aggravate the offense with respect to the misconduct; for which penalties and assessments (4) The amount of money or the value are imposed. of the property, services, or benefit falsely claimed; § 1149.61 Can a party request reconsid- (5) The value of the Government’s ac- eration of the initial decision? tual loss as a result of the misconduct, (a) Any party may file a motion for including foreseeable consequential reconsideration of the initial decision damages and the cost of the investiga- with the ALJ within 20 days of receipt tion; of the initial decision. If the initial de- (6) The relationship of the amount cision was served by mail, there is a re- imposed as civil penalties to the buttable presumption that the initial amount of the Government’s loss; decision was received by the party 5 (7) The potential or actual impact of days from the date of mailing. the misconduct upon national defense, (b) A motion for reconsideration public health or safety, or public con- shall be accompanied by a supporting fidence in the management of Govern- brief and must specifically describe the ment programs and operations, espe- issue and nature of each allegedly erro- cially upon the public confidence of neous decision. those intended to benefit from Govern- (c) Responses to a motion for recon- ment programs; sideration will only be allowed if it is (8) Whether you have engaged in a requested by the ALJ. pattern of the same or similar mis- (d) The ALJ will dispose of a motion conduct; for reconsideration by denying it or by (9) Whether you attempted to conceal issuing a revised initial decision. the misconduct; (e) If the ALJ issues a revised initial (10) The degree to which you have in- decision upon motion of a party, no volved others in the misconduct or in further motions for reconsideration concealing it; may be filed by any party. (11) Where the misconduct of employ- (f) If the ALJ issues a revised initial ees or agents is imputed to you, the ex- decision, that decision shall constitute tent to which your practices fostered the final decision of the authority head or attempted to preclude such mis- and shall be final and binding on the conduct; parties 30 days after it is issued, unless (12) Whether you cooperated in or ob- it is timely appealed to the authority structed an investigation of the mis- head. conduct; (13) Whether you assisted in identi- § 1149.62 When does the initial deci- fying and prosecuting other wrong- sion of the ALJ become final? doers; (a) The initial decision of the ALJ be- (14) The complexity of the program comes the final decision of the NEA or transaction, and the degree of your and binds all parties 30 days after it is sophistication with respect to it, in- issued, unless a party timely files a cluding the extent of your prior par- motion for reconsideration or timely

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appeals to the authority head of NEA, § 1149.65 Are there any limitations on as set forth in § 1149.64. the right to appeal to the authority (b) If the ALJ disposes of a motion head? for reconsideration by denying it or by (a) You have no right to appear per- issuing a revised initial decision, the sonally, or through a representative, ALJ’s order on the motion for recon- before the authority head. sideration becomes the final decision of (b) There is no right to appeal any in- NEA 30 days after the order is issued. terlocutory ruling. (c) The authority head will not con- § 1149.63 What are the procedures for sider any objection or evidence that appealing the ALJ decision? was not raised before the ALJ, unless (a) Any defendant who submits a you demonstrate that the failure to ob- timely answer and is found liable for a ject was caused by extraordinary cir- civil penalty or assessment in an ini- cumstances. If you demonstrate to the tial decision may appeal the decision satisfaction of the authority head that to the authority head by filing a notice extraordinary circumstances prevented of appeal with the authority head in the presentation of evidence at the accordance with this section. hearing, and that the additional evi- (b) You may file a notice of appeal dence is material, the authority head with the authority head within 30 days may remand the matter to the ALJ for following issuance of the initial deci- consideration of the additional evision, serving a copy of the notice of ap- dence. peal on all parties and the ALJ. The authority head may extend this dead- § 1149.66 How does the authority head line for up to an additional 30 days if dispose of an appeal? an extension request is filed within the (a) The authority head may affirm, initial 30-day period and shows good reduce, reverse, compromise, remand, cause. or settle any penalty or assessment im- (c) Your appeal will not be considered posed by the ALJ in the initial decision until all timely motions for reconsider- or reconsideration decision. ation have been resolved. (b) The authority head will promptly (d) If a timely motion for reconsider- serve each party to the appeal and the ation is denied, a notice of appeal may ALJ with a copy of his or her decision. be filed within 30 days following such This decision must contain a state- denial or issuance of a revised initial ment describing the right of any per- decision, whichever applies. son, against whom a penalty or assess- (e) A notice of appeal must be sup- ment has been made, to seek judicial ported by a written brief specifying review. why the initial decision should be reversed or modified. § 1149.67 Who represents the NEA on (f) The NEA representative may file a an appeal? brief in opposition to the notice of ap- The authority head will designate peal within 30 days of receiving your the NEA’s representative in the event appeal and supporting brief. of an appeal. (g) If you timely file a notice of appeal, and the time for filing reconsider- § 1149.68 What judicial review is avail- ation motions has expired, the ALJ able? will forward the record of the pro- Section 3805 of title 31, United States ceeding to the authority head. Code, authorizes Judicial review by the appropriate United States District § 1149.64 What happens if an initial de- Court of any final NEA decision by the cision is appealed? authority head imposing penalties or (a) An initial decision is stayed auto- assessments under this part. To obtain matically pending disposition of a mo- judicial review, you must file a petition for reconsideration or of an appeal tion with the appropriate court in a to the authority head. timely manner. (See paragraphs (a) (b) No administrative stay is avail- through (e) of 31 U.S.C. 3805 for a de- able following a final decision of the scription of how judicial review is au- authority head. thorized.)

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§ 1149.69 Can the administrative com- counterclaim, cross-claim, or set off by plaint be settled voluntarily? the government in any other civil ac- (a) Parties may make offers of com- tion which includes you and the gov- promise or settlement at any time. ernment as parties. Any compromise or settlement must be (4) Defenses raised at the hearing, or in writing. that could have been raised, may not (b) The reviewing official has the ex- be raised as a defense in the civil ac- clusive authority to compromise or tion. Determination of liability and of settle the case anytime after the date the amounts of penalties and assess- on which the reviewing official is per- ments must not be subject to review. mitted to issue a complaint and before the ALJ issues an initial decision. § 1149.71 Is there a right to adminis- (c) The authority head has exclusive trative offset? authority to compromise or settle the The amount of any penalty or assess- case anytime after the date of the ment which has become final, or for ALJ’s initial decision until the initi- which a judgment has been entered, or ation of any judicial review or any action to collect the penalties and assess- any amount agreed upon in a comments. promise or settlement, may be col- (d) The Attorney General has exclu- lected by administrative offset, except sive authority to compromise or settle that an administrative offset may not a case once any judicial review or any be made under this subsection against action to recover penalties and assess- a refund of an overpayment of Federal ments is initiated. taxes, then or later owing by the (e) The investigating official may United States to you. recommend settlement terms to the reviewing official, the authority head, or § 1149.72 What happens to collections? the Attorney General, as appropriate. All amounts collected pursuant to this part must be deposited as mis- § 1149.70 How are civil penalties and assessments collected? cellaneous receipts in the Treasury of the United States. (a) Civil actions to recover penalties or assessments must commence within § 1149.73 What if the investigation in- 3 years after the date of a final decision dicates criminal misconduct or a determining your liability. violation of the False Claims Act? (b) The Attorney General is responsible for judicial enforcement of civil (a) Investigating officials may: penalties or assessments imposed. He/ (1) Refer allegations of criminal mis- she has exclusive authority to com- conduct or a violation of the False promise or settle any penalty or assess- Claims Act directly to the Department ment during the pendency of any ac- of Justice for prosecution and/or civil tion to collect penalties or assessments action, as appropriate; under 31 U.S.C. 3806. (2) Defer or postpone a report or re- (c) Penalties or assessments imposed ferral to the reviewing official to avoid by a final decision may be recovered in interference with a criminal or civil in- a civil action brought by the Attorney vestigation, prosecution or litigation; General. or (1) The district courts of the United (3) Issue subpoenas under any other States have jurisdiction of such civil statutory authority. actions. (b) Nothing in this part limits the re- (2) The United States Court of Fed- quirement that NEA employees report eral Claims has jurisdiction of any suspected false or fraudulent conduct, civil action to recover any penalty or claims or statements, and violations of assessment if the cause of action is asserted by the government as a counter- criminal law to the NEA Office of In- claim in a matter pending in such spector General or to the Attorney court. General. (3) Civil actions may be joined and consolidated with or asserted as a

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§ 1149.74 How does the NEA protect 1150.13 How will the Endowment contract your rights? for collection services? 1150.14 When will the Endowment refer These procedures separate the func- claims to the DOJ? tions of the investigating official, re- 1150.15 Will the Endowment use a cross- viewing official, and the ALJ, each of servicing agreement with the Treasury whom report to a separate organiza- to collect its claims? tional authority. Except for purposes 1150.16 May I use the Endowment’s failure of settlement, or as a witness or a rep- to comply with these regulations as a de- resentative in public proceedings, no fense? investigating official, reviewing offi- Subpart B—Salary Offset cial, or NEA employee or agent who helps investigate, prepare, or present a 1150.20 What debts are included or excluded case may (in such case, or a factually from coverage of these regulations on related case) participate in the initial salary offset? decision or the review of the initial de- 1150.21 May I ask the Endowment to waive cision by the authority head. This sep- an overpayment that otherwise would be aration of functions and organization collected by offsetting my salary as a Federal employee? is designed to assure the independence 1150.22 What are the Endowment’s proce- and impartiality of each government dures for salary offset? official during every stage of the pro- 1150.23 How will the Endowment coordinate ceeding. The representative for the salary offsets with other agencies? NEA may be employed in the offices of 1150.24 Under what conditions will the En- either the investigating official or the dowment make a refund of amounts col- reviewing official. lected by salary offset? 1150.25 Will the collection of a claim by salary offset act as a waiver of my rights to PART 1150—COLLECTION OF dispute the claimed debt? CLAIMS Subpart C—Tax Refund Offset Subpart A—General Provisions 1150.30 Which debts can the Endowment Sec. refer to the Treasury for collection by 1150.1 What definitions apply to the regula- offsetting tax refunds? tions in this part? 1150.31 What are the Endowment’s proce- 1150.2 What is the Endowment’s authority dures for collecting debts by tax refund to issue these regulations? offset? 1150.3 What other regulations also apply to the Endowment’s debt collection efforts? Subpart D—Administrative Offset 1150.4 What types of claims are excluded from these regulations? 1150.40 Under what circumstances will the 1150.5 What notice will I be provided if I owe Endowment collect amounts that I owe a debt to the Endowment? to the Endowment (or some other Fed- 1150.6 What opportunity do I have to obtain eral agency) by offsetting the debt a review of my debt within the Endow- against payments that the Endowment ment? (or some other Federal agency) owes me? 1150.7 What interest, penalty charges, and 1150.41 How will the Endowment request administrative costs will I have to pay that my debt to the Endowment be col- on a debt owed to the Endowment? lected by offset against some payment 1150.8 Will failure to pay my debt affect my that another Federal agency owes me? eligibility for Endowment programs? 1150.42 What procedures will the Endow- 1150.9 How can I resolve the Endowment’s ment use to collect amounts I owe to a claim through a voluntary repayment Federal agency by offsetting a payment agreement? that the Endowment would otherwise 1150.10 What is the extent of the Chair- make to me? person’s authority to compromise debts 1150.43 When may the Endowment make an owed to the Endowment, or to suspend or offset in an expedited manner? terminate collection action on such 1150.44 Can a judgment I have obtained debts? against the United States be used to sat- 1150.11 How does subdividing or joining isfy a debt that I owe to the Endowment? debts owed to the Endowment affect the AUTHORITY: 31 U.S.C. 3711, 3716–3718, 3720A; Chairperson’s compromise, suspension, 5 U.S.C. 5514. or termination authority? 1150.12 How will the Endowment use credit SOURCE: 65 FR 37486, June 15, 2000, unless reporting agencies to collect its claims? otherwise noted.

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Subpart A—General Provisions (i) Disposable pay means the part of an employee’s pay that remains after § 1150.1 What definitions apply to the deductions that are required to be regulations in this part? withheld by law have been made. As used in this part: (j) Employee means a current em- (a) Administrative offset means the ployee of an agency, including a cur- withholding of funds payable by the rent member of the Armed Forces or United States (including funds payable Reserve of the Armed Forces of the by the United States on behalf of a United States. State government) to any person, or (k) Endowment means the National the withholding of funds held by the Endowment for the Arts. United States for any person, in order (l) Federal Claims Collection Standards to satisfy a debt owed to the United means the standards currently pub- States. lished at 4 CFR Chapter II. The DOJ (b) Agency means a department, agen- and the Treasury have proposed a revi- cy, court, court administrative office, sion that would move the Federal or instrumentality in the executive, ju- Claims Collection Standards to 31 CFR dicial, or legislative branch of govern- parts 900–904. The Endowment will ment, including a government corpora- amend these regulations, as necessary, tion. after the revised Federal Claims Col- (c) Chairperson means the Chair- lection Standards have been issued as person of the Endowment, or his or her final regulations. designee. (m) Paying agency means the agency (d) Creditor agency means the agency that employs the individual who owes a to which the debt is owed. debt to the United States. In some (e) Day means calendar day. To count cases, the Endowment may be both the days, include the last day of the period unless it is a Saturday, a Sunday, or a creditor agency and the paying agency. Federal legal holiday. (n) Payroll office means the office in (f) Debt and claim are deemed synony- the paying agency that is primarily re- mous and interchangeable. These terms sponsible for payroll records and the mean money owed by a person to the coordination of pay matters with the United States for any reason, including appropriate personnel office. loans made or guaranteed by the (o) Person includes a natural person United States, fees, leases, rents, roy- or persons, profit or non-profit corpora- alties, services, sales of real or per- tion, partnership, association, trust, sonal property, overpayments, dam- estate, consortium, state or local gov- ages, interests, penalties, fines, forfeit- ernment, or other entity that is capa- ures, and all other similar sources. For ble of owing a debt to the United the purpose of administrative offset States; however, agencies of the United under 31 U.S.C. 3716 and subpart D of States are excluded. these regulations, the terms debt and (p) Private collection contractor means claim also include money or property a private debt collector under contract owed by a person to a State, the Dis- with an agency to collect a non-tax trict of Columbia, American Samoa, debt owed to the United States. Guam, the United States Virgin Is- (q) Salary offset means a payroll pro- lands, the Commonwealth of the North- cedure to collect a debt under 5 U.S.C. ern Marina Islands, or the Common- 5514 by deduction(s) at one or more of- wealth of Puerto Rico. ficially established pay intervals from (g) Debtor means a person who owes a debt. Uses of the terms ‘‘I,’’ ‘‘you,’’ the current pay account of an em- ‘‘me,’’ and similar references to the ployee, without his or her consent. reader of the regulations in this part (r) Tax refund offset means the reduc- are meant to apply to debtors as de- tion of a tax refund by the amount of a fined in this paragraph (g). past-due legally enforceable debt owed (h) Delinquent debt means a debt that to the Endowment or any other Fed- has not been paid within the time limit eral agency. prescribed by the Endowment.

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§ 1150.2 What is the Endowment’s au- § 1150.5 What notice will I be provided thority to issue these regulations? if I owe a debt to the Endowment? The Endowment is issuing the regu- (a) When the Chairperson determines lations in this part under 31 U.S.C. 3711, that you owe a debt to the Endowment, 3716–3718, and 3720A. These sections re- he or she will send you a written notice flect the Federal Claims Collection Act (Notice). The Notice will be hand-deliv- of 1966, as amended by the Debt Collec- ered or sent to you by certified mail, tion Act of 1982 and the Debt Collection return receipt requested at the most Improvement Act of 1996. The Endow- current address known to the Endow- ment. The Notice will inform you of ment is also issuing the regulations in the following: this part in conformity with the Fed- (1) The amount, nature, and basis of eral Claims Collection Standards, the debt; which prescribe standards for the han- (2) That a designated Endowment of- dling of the Federal government’s ficial has reviewed the claim and deter- claims for money or property. The En- mined that it is valid; dowment is further issuing the regula- (3) That payment of the debt is due tions in this part in conformity with 5 as of the date of the Notice, and that U.S.C. 5514 and the salary offset regula- the debt will be considered delinquent tions published by the OPM at 5 CFR if you do not pay it within 30 days of part 550, subpart K. the date of the Notice; (4) The Endowment’s policy con- § 1150.3 What other regulations also cerning interest, penalty charges, and apply to the Endowment’s debt col- administrative costs (see § 1150.7), in- lection efforts? cluding a statement that such assess- All provisions of the Federal Claims ments must be made against you un- Collection Standards also apply to the less excused in accordance with the regulations in this part. This part sup- Federal Claims Collection Standards plements the Federal Claims Collection and this part; Standards by prescribing procedures (5) That you have the right to inspect and directives necessary and appro- and copy Endowment records per- priate for operations of the Endow- taining to your debt, or to receive cop- ment. ies of those records if personal inspection is impractical; § 1150.4 What types of claims are ex- (6) That you have the opportunity to cluded from these regulations? enter into an agreement, in writing (a) The regulations in this part do and signed by both you and the Chair- not apply to any claim as to which person, for voluntary repayment of the there is an indication of fraud or mis- debt (see § 1150.9); and representation, as described in the Fed- (7) The address, telephone number, and name of the Endowment official eral Claims Collection Standards, unavailable to discuss the debt. less returned to the Endowment by the (b) Notice of possible collection ac- DOJ for handling. tions. The Notice provided by the (b) The regulations in this subpart, Chairperson under paragraph (a) of this subpart B, and subpart D do not apply section will also advise you that, if to debts arising under the Internal your debt (including any interest, pen- Revenue Code of 1986, as amended (26 alty charges, and administrative costs) U.S.C. 1 et seq.); the Social Security is not paid within 60 days of the date of Act (42 U.S.C. 301 et seq.); and the tariff the Notice, or you do not enter into a laws of the United States. voluntary repayment agreement within (c) Remedies and procedures de- 60 days of the date of the Notice, then scribed in this part may be authorized the Endowment may enforce collection with respect to claims that are exempt of the debt by any or all of the fol- from the Debt Collection Act of 1982 lowing methods: and the Debt Collection Improvement (1) By referral to a credit reporting Act of 1996, to the extent that they are agency (see § 1150.12), a collection agen- authorized under some other statute or cy (see § 1150.13), or the DOJ (see the common law. § 1150.14);

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(2) By transferring any debt delin- (3) That the filing of a request for a quent for more than 180 days to the review on or before the 60th day fol- Treasury for collection under a cross- lowing the date of the Notice will stay servicing agreement with the Treasury the commencement of collection pro- (see § 1150.15); ceedings; (3) If you are an Endowment em- (4) The name and address of the offi- ployee, by deducting money from your cer or employee of the Endowment to disposable pay account (in the amount whom you should send the request for a and with the frequency, approximate review; beginning date, and duration specified (5) That a final decision on the re- by the Endowment) until the debt (and view (if one is requested) will be issued all accumulated interest, penalty at the earliest practical date, but not charges, and administrative costs) is later than 60 days after the receipt of paid in full (see subpart B). Such pro- the request for a review, unless you re- ceedings are governed by 5 U.S.C. 5514; quest, and the review official grants, a (4) If you are an employee of a Fed- delay in the proceedings; eral agency other than the Endow- (6) That any knowingly false or frivo- ment, by initiating certification proce- lous statements, representations, or dures to implement a salary offset by evidence may subject you to: that Federal agency (see subpart B). (i) Disciplinary procedures appro- Such proceedings are governed by 5 priate under 5 U.S.C. Chapter 75, 5 CFR U.S.C. 5514; part 752, or any other applicable stat- (5) By referring the debt to the Treas- ute or regulations; ury for offset against any refund of (ii) Penalties under the False Claims overpayment of tax (see subpart C); Act (31 U.S.C. 3729–3733) or any other (6) By administrative offset (see sub- applicable statutory authority; and part D); or (iii) Criminal penalties under 18 (7) By liquidation of security or col- U.S.C. 286, 287, 1001, and 1002, or any lateral. When the Endowment holds se- other applicable statutory authority; curity or collateral that may be liq- (7) Any other rights available to you uidated and the proceeds applied to to dispute the validity of the debt or to your debt through the exercise of a have recovery of the debt waived, or power of sale in the security instru- remedies available to you under stat- ment or a nonjudicial foreclosure, such utes or regulations governing the pro- procedures may be followed unless the gram for which the collection is being cost of disposing of the collateral will made; and be disproportionate to its value or spe- (8) That unless there are applicable cial circumstances require judicial contractual or statutory provisions to foreclosure. the contrary, amounts paid on or de- (c) Notice of opportunity for review. ducted for the debt that are later The Notice provided by the Chair- waived or found not owed will be person under paragraph (a) of this sec- promptly refunded to you. tion will also advise you of the oppor- (d) The Endowment will respond tunity to obtain a review within the promptly to communications from you. Endowment concerning the existence or amount of the debt, the proposed § 1150.6 What opportunity do I have to schedule for offset of Federal employee obtain a review of my debt within salary payments, or whether the debt the Endowment? is past due or legally enforceable. The (a) Request for review. If you desire a Notice shall also advise you of the fol- review within the Endowment con- lowing: cerning the existence or amount of (1) The name, address, and telephone your debt, the proposed schedule for number of an officer or employee of the offset of Federal employee salary pay- Endowment whom you may contact ments, or whether the debt is past due concerning procedures for requesting a or legally enforceable, you must send review; such a request to the officer or em- (2) The method and time period for ployee of the Endowment designated in requesting a review; the Notice (see § 1150.5(c)(4)).

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(1) Your request for review must enforceable (for purposes of collection carry your signature and fully identify by tax refund offset under § 1150.31) and explain with reasonable specificity must be referred to the Chairperson for all the facts and evidence that support ultimate administrative disposition, your position. Your request for review and the Chairperson must notify you of should be accompanied by available his or her determination. evidence to support your contentions. (d) Review procedure. After you re- (2) Your request for review must be quest a review, the review official will received by the designated officer or notify you of the form of the review to employee of the Endowment on or be- be provided. The review official shall fore the 60th day following the date of determine whether an oral hearing is the Notice. Timely filing will stay the required, or if a review of the written commencement of collection proce- record is sufficient, in accordance with dures. If you file a request for a review the Federal Claims Collection Stand- after the 60-day period provided for in ards. In either case, the review official this section, the Endowment will ac- shall conduct the review in accordance cept the request if you can show that with the Federal Claims Collection the delay was the result of cir- Standards. If the review will include an cumstances beyond your control or be- oral hearing, the notice sent to you by cause you did not receive notice of the the review official will set forth the filing deadline (unless you had actual date, time, and location of the hearing. notice of the filing deadline). (e) Date of decision. The review offi- (b) Inspection of Endowment records re- cial will issue a written decision, based lated to the debt. (1) In accordance with upon either the written record or docu- § 1150.5, if you want to inspect or copy mentary evidence and information de- Endowment records related to the debt, veloped at an oral hearing, as soon as you must send a letter to the Endow- practical, but not later than 60 days ment official designated in the Notice after the date on which the Endowment stating your intention. Your letter received your request for a review, un- must be received within 30 days of the less you request, and the review official date of the Notice. grants, a delay in the proceedings. (2) In response to the timely request (f) Content of review decision. The re- described in paragraph (b)(1) of this view official will prepare a written de- section, the designated Endowment of- cision that includes: ficial will notify you of the location (1) A statement of the facts presented and time when you may inspect and to support the origin, nature, and copy records related to the debt. amount of the debt; (3) If personal inspection of Endow- (2) The review official’s findings, ment records related to the debt is im- analysis, and conclusions; and practical, reasonable arrangements (3) The terms of any repayment will be made to send you copies of schedule, if applicable. those records. (g) Interest, penalty charge, and admin- (c) Review official. The Chairperson istrative cost accrual during review pe- shall designate an officer or employee riod. Interest, penalty charges, and ad- of the Endowment (who was not in- ministrative costs authorized by law volved in the determination of the will continue to accrue during the re- debt) as the review official. When review period. quired by law or regulation, the En- dowment may request an administra- § 1150.7 What interest, penalty tive law judge to conduct the review, charges, and administrative costs or may obtain a review official who is will I have to pay on a debt owed to an official, employee, or agent of the the Endowment? United States, but who is not under the (a) Interest. (1) The Endowment will supervision or control of the Chair- assess interest on all delinquent debts person. However, unless the review is unless prohibited by statute, regula- conducted by an official or employee of tion, or contract. the Endowment, any unresolved dis- (2) Interest begins to accrue on all pute you have regarding whether all or debts from the date that the debt be- part of the debt is past due or legally comes delinquent. The Endowment will

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not recover interest if you pay the debt administrative costs, if he or she deter- within 30 days of the date on which in- mines that collection of these charges terest begins to accrue. The Endow- would be against equity and good con- ment shall assess interest at the rate science or not in the best interest of established annually by the Secretary the Endowment. of the Treasury under 31 U.S.C. 3717, (2) A decision to waive interest, pen- unless a different rate is either nec- alty charges, or administrative costs essary to protect the interests of the may be made at any time before a debt Endowment or established by a con- is paid. However, where these charges tract, repayment agreement, or stat- have been collected before the waiver ute. The Endowment will notify you of decision, they will not be refunded. The the basis for its finding when a dif- Chairperson’s decision to waive or not ferent rate is necessary to protect the waive collection of these charges is interests of the Endowment. final and is not subject to further re- (3) The Chairperson may extend the view. 30-day period for payment without interest where he or she determines that § 1150.8 Will failure to pay my debt af- such action is in the best interest of fect my eligibility for Endowment the Endowment. A decision to extend programs? or not to extend the payment period is In the event that you fail to pay your final and is not subject to further re- debt to the Endowment within a rea- view. sonable period of time after the date of (b) Penalty. The Endowment will as- the Notice of debt, the General Counsel sess a penalty charge, not to exceed 6 of the Endowment shall place your percent a year, on any portion of a debt name on the Endowment’s list of that is delinquent for more than 90 debarred, suspended, and ineligible days. contractors, grantees, and other par- (c) Administrative costs. The Endow- ticipants in programs sponsored by the ment will assess charges to cover ad- Endowment. You will be advised of this ministrative costs incurred as a result action. of your failure to pay a debt before it becomes delinquent. Administrative § 1150.9 How can I resolve the Endow- costs include the additional costs in- ment’s claim through a voluntary curred in processing and handling the repayment agreement? debt because it became delinquent, In response to a Notice of debt, you such as costs incurred in obtaining a may propose to the Endowment that credit report or in using a private col- you be allowed to repay the debt lection contractor, or service fees through a voluntary repayment agree- charged by a Federal agency for collec- ment in lieu of the Endowment taking tion activities undertaken on behalf of other collection actions under this the Endowment. part. (d) Allocation of payments. A partial (a) Your request to enter into a vol- or installment payment by a debtor untary repayment agreement must: will be applied first to outstanding pen- (1) Be in writing; alty assessments, second to adminis- (2) Admit the existence of the debt; trative costs, third to accrued interest, and and fourth to the outstanding debt (3) Either propose payment of the principal. debt (together with interest, penalty (e) Additional authority. The Endow- charges, and administrative costs) in a ment may assess interest, penalty lump sum, or set forth a proposed re- charges, and administrative costs on payment schedule. debts that are not subject to 31 U.S.C. (b) The Endowment will collect 3717 to the extent authorized under claims in full or one lump sum when- common law or other applicable statu- ever feasible. However, if you are un- tory authority. able to pay your debt in one lump sum, (f) Waiver. (1) The Chairperson may the Endowment may accept payment (without regard to the amount of the in regular installments that bear a rea- debt) waive collection of all or part of sonable relationship to the size of the accrued interest, penalty charges, or debt and your ability to pay.

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(c) The Endowment will consider a § 1150.11 How does subdividing or request to enter into a voluntary re- joining debts owed to the Endow- payment agreement in accordance with ment affect the Chairperson’s com- the Federal Claims Collection Stand- promise, suspension, or termination authority? ards. The Chairperson may request additional information from you, includ- A debtor’s liability arising from a ing financial statements if you request particular transaction or contract will to make payments in installments, in be considered as a single claim in de- order to make a determination of termining whether the claim is one of whether to accept a voluntary repay- not more than $100,000, excluding inter- ment agreement. It is within the Chair- est, for the purpose of compromise or suspension or termination of collection person’s discretion to accept a repay- action. Such a claim may not be sub- ment agreement instead of proceeding divided to avoid the monetary ceiling with other collection actions under established by the Federal Claims Col- this part, and to set the necessary lection Act of 1966, as amended. Join- terms of any voluntary repayment ing two or more claims in a demand agreement. No repayment agreement upon a debtor for payment of more will be binding on the Endowment un- than $100,000 does not preclude com- less it is in writing and signed by both promise or suspension or termination you and the Chairperson. At the En- of collection action with regard to any dowment’s option, you may be required one claim not exceeding $100,000, ex- to enter into a confess-judgment note cluding interest. or bond of indemnity with surety as part of an agreement to make pay- § 1150.12 How will the Endowment use ments in installments. Notwith- credit reporting agencies to collect its claims? standing the provisions of this section, any reduction or compromise of a (a) The Endowment may report delin- claim will be governed by 31 U.S.C. quent debts to appropriate credit re- 3711. porting agencies by providing the following information: § 1150.10 What is the extent of the (1) A statement that the debt is valid Chairperson’s authority to com- and overdue; promise debts owed to the Endow- (2) The name, address, taxpayer iden- ment, or to suspend or terminate tification number, and any other infor- collection action on such debts? mation necessary to establish the iden- (a) The Chairperson may exercise his tity of the debtor; or her authority to compromise, or to (3) The amount, status, and history suspend or terminate collection action of the debt; and on, those debts owed to the Endowment (4) The program or pertinent activity under which the debt arose. and not exceeding $100,000, excluding (b) Before disclosing debt informa- interest, in conformity with the Fed- tion to a credit reporting agency, the eral Claims Collection Act of 1966, as Endowment will: amended; the Federal Claims Collec- (1) Take reasonable action to locate tion Standards issued thereunder; and the debtor if a current address is not this part, except where standards are available; established by other statutes or au- (2) Provide the notice required under thorized regulations issued pursuant to § 1150.5 if a current address is available; them. and (b) The portion of a debt owed to the (3) Obtain satisfactory assurances Endowment that is unrecovered as the from the credit reporting agency that result of a compromise shall be re- it complies with the Fair Credit Re- ported to the Internal Revenue Service porting Act (15 U.S.C. 1681 et seq.) and (IRS) as income to the debtor. other Federal laws governing the provision of credit information. (c) At the time debt information is submitted to a credit reporting agency, the Endowment will provide a written

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statement to the reporting agency that (c) Require the contractor to account all required actions have been taken. accurately and fully for all amounts In addition, the Endowment will, collected; and thereafter, ensure that the credit re- (d) Require the contractor to provide porting agency is promptly informed of to the Endowment, upon request, all any substantive change in the condi- data and reports contained in its files tions or amount of the debt, and related to its collection actions on a promptly verify or correct information debt. relevant to the debt. (d) If a debtor disputes the validity of § 1150.14 When will the Endowment the debt, the credit reporting agency refer claims to the DOJ? will refer the matter to the appropriate Endowment official. The credit report- The Chairperson will refer to the ing agency will exclude the debt from DOJ for litigation claims on which ag- its reports until the Endowment cer- gressive collection actions have been tifies in writing that the debt is valid. taken but which could not be collected, (e) The Endowment may disclose to a compromised, suspended, or termi- commercial credit bureau information nated. Referrals will be made as early concerning a commercial debt, includ- as possible, consistent with aggressive ing the following: Endowment collection action, and (1) Information necessary to estab- within the period for bringing a timely lish the name, address, and employer suit against the debtor. identification number of the commercial debtor; § 1150.15 Will the Endowment use a (2) The amount, status, and history cross-servicing agreement with the of the debt; and Treasury to collect its claims? (3) The program or pertinent activity (a) The Endowment will enter into a under which the debt arose. cross-servicing agreement that authorizes the Treasury to take the collection § 1150.13 How will the Endowment actions described in this part on behalf contract for collection services? of the Endowment. These debt collec- The Endowment will use the services tion services will be provided to the of a private collection contractor Endowment in accordance with 31 where it determines that such use is in U.S.C. Chapter 37. the best interest of the Endowment. (b) The Endowment shall transfer to When the Endowment determines that there is a need to contract for collec- the Treasury any past due, legally en- tion services, it will: forceable, non-tax debt that has been (a) Retain sole authority to: delinquent for a period of 180 days or (1) Resolve any dispute with the debt- more so that the Secretary of the or regarding the validity of the debt; Treasury may take appropriate action (2) Compromise the debt; in accordance with 31 U.S.C. 3716, 5 (3) Suspend or terminate collection U.S.C. 5514, the Federal Claims Collec- action; tion Standards, 5 CFR 550.1108, and 31 (4) Refer the debt to the DOJ for liti- CFR part 285. The categories of debts gation; and described in 31 U.S.C. 3711(g)(2) are ex- (5) Take any other action under this cluded from transfer under this para- part which does not result in full col- graph (b). lection of the debt; (b) Require the contractor to comply § 1150.16 May I use the Endowment’s with the Privacy Act of 1974, as amend- failure to comply with these regula- ed, to the extent specified in 5 U.S.C. tions as a defense? 552a(m); with the Fair Debt Collection No. The failure of the Endowment to Practices Act (15 U.S.C. 1692–1692o) and comply with any standard prescribed in other applicable Federal and State the Federal Claims Collection Stand- laws pertaining to debt collection prac- ards or these regulations shall not be tices; and with the applicable regula- available to any debtor as a defense. tions of the Endowment in this chapter;

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Subpart B—Salary Offset (c) Deductions will begin within three official pay periods following re- § 1150.20 What debts are included or ceipt by the Endowment’s payroll of- excluded from coverage of these fice of certification of debt from the regulations on salary offset? creditor agency. (a) The regulations in this subpart (d) Types of collection—(1) Lump-sum provide Endowment procedures for the offset. If the amount of the debt is collection by salary offset of a Federal equal to or less than 15 percent of dis- employee’s pay to satisfy certain debts posable pay, the debt generally will be owed to the Endowment or to other collected through one lump-sum offset. Federal agencies. (2) Installment deductions. Installment (b) The regulations in this subpart do deductions will be made over a period not apply to any case where collection not greater than the anticipated period of a debt by salary offset is explicitly of employment. The size and frequency provided for or prohibited by another of installment deductions will bear a statute. reasonable relation to the size of the (c) Nothing in the regulations in this debt and your ability to pay. However, subpart precludes the compromise, sus- the amount deducted from any period pension, or termination of collection will not exceed 15 percent of the dispos- actions under the Federal Claims Col- able pay from which the deduction is lection Act of 1966, as amended, or the made unless you have agreed in writing Federal Claims Collection Standards. to the deduction of a greater amount. (d) A levy pursuant to the Internal If possible, installment payments will Revenue Code takes precedence over a be sufficient in size and frequency to salary offset under this subpart, as pro- liquidate the debt in three years or vided in 5 U.S.C. 5514(d). less. (e) This subpart does not apply to (3) Deductions from final check. A de- any adjustment to pay arising out of duction exceeding the 15 percent of dis- your election of coverage or a change posable pay limitation may be made in coverage under a Federal benefits from any final salary payment under 31 program requiring periodic deductions from pay, if the amount to be recov- U.S.C. 3716 and the Federal Claims Col- ered was accumulated over four or lection Standards, in order to liquidate fewer pay periods. the debt, whether the employee is being separated voluntarily or involun- § 1150.21 May I ask the Endowment to tarily. waive an overpayment that other- (4) Deductions from other sources. If an wise would be collected by offset- employee subject to salary offset is ting my salary as a Federal em- separated from the Endowment, and ployee? the balance of the debt cannot be liq- Yes. The regulations in this subpart uidated by offset of the final salary do not preclude you from requesting check, then the Endowment may offset waiver of an overpayment under 5 later payments of any kind against the U.S.C. 5584 or 8346(b), 10 U.S.C. 2774, 32 balance of the debt, as allowed by 31 U.S.C. 716, or other statutory provi- U.S.C. 3716 and the Federal Claims Col- sions pertaining to the particular debts lection Standards. being collected. (e) Multiple debts. In instances where § 1150.22 What are the Endowment’s two or more creditor agencies are seek- procedures for salary offset? ing salary offsets, or where two or more debts are owed to a single cred- (a) The Endowment will coordinate itor agency, the Endowment’s payroll salary deductions under this subpart as office may, at its discretion, determine appropriate. whether one or more debts should be (b) If you are an Endowment em- offset simultaneously within the 15 ployee, the Endowment’s payroll office will determine the amount of your dis- percent limitation. posable pay and will implement the salary offset.

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§ 1150.23 How will the Endowment co- debtor employee from other Federal ordinate salary offsets with other government sources, then (under its agencies? regulations adopted under 5 U.S.C. 5514 (a) Responsibilities of the Endowment and 5 CFR part 550, subpart K), the as the creditor agency. Upon completion paying agency will provide written no- of the procedures established in this tice of the outstanding debt to the subpart and pursuant to 5 U.S.C. 5514, agency responsible for making the the Endowment must submit a claim other payments to the debtor em- to a paying agency. ployee. The written notice will state (1) In its claim, the Endowment must that the employee owes a debt, the certify, in writing, the following: amount of the debt, and that the provi- (i) That the employee owes the debt; sions of this section have been fully (ii) The amount and basis of the debt; complied with. However, the Endow- (iii) The date the Endowment’s right ment must submit a properly certified to collect the debt first accrued; and claim under this paragraph (a)(4) to the (iv) That the Endowment’s regula- agency responsible for making the pay- tions in this subpart have been ap- ments before the collection can be proved by OPM under 5 CFR part 550, made. subpart K. (5) Separated employee. If the em- (2) If the collection must be made in ployee is already separated and all pay- installments, the Endowment’s claim ments due from his or her former pay- will also advise the paying agency of ing agency have been paid, the Endow- the amount or percentage of disposable ment may request, unless otherwise pay to be collected in each installment. prohibited, that money due and pay- The Endowment may also advise the able to the employee from the Civil paying agency of the number of install- Service Retirement and Disability ments to be collected and the date of Fund or other similar funds be admin- the first installment, if that date is istratively offset to collect the debt. other than the next officially estab- (6) Employee transfer. When an em- lished pay period. ployee transfers from one paying agen- (3) The Endowment shall also include cy to another paying agency, the En- in its claim: dowment will not repeat the due proc- (i) The employee’s written consent to ess procedures described in 5 U.S.C. the salary offset; 5514 and this subpart to resume the col- (ii) The employee’s signed statement lection. The Endowment will submit a acknowledging receipt of the proce- properly certified claim to the new dures required by 5 U.S.C. 5514; or paying agency and will subsequently (iii) Information regarding the com- review the debt to ensure that the col- pletion of procedures required by 5 lection is resumed by the new paying U.S.C. 5514, including the actions taken agency. and the dates of those actions. (b) Responsibilities of the Endowment (4) If the employee is in the process as the paying agency. (1) Complete of separating and has not received a claim. When the Endowment receives a final salary check or other final pay- certified claim from a creditor agency ment(s) from the paying agency, the (under the creditor agency’s regula- Endowment must submit its claim to tions adopted under 5 U.S.C. 5514 and 5 the paying agency for collection under CFR part 550, subpart K), deductions 31 U.S.C. 3716. The paying agency will should be scheduled to begin within (under its regulations adopted under 5 three officially established pay inter- U.S.C. 5514 and 5 CFR part 550, subpart vals. Before deductions can begin, the K), certify the total amount of its col- employee will receive a written notice lection on the debt and notify the em- from the Endowment including: ployee and the Endowment. If the pay- (i) A statement that the Endowment ing agency’s collection does not fully has received a certified claim from the satisfy the debt, and the paying agency creditor agency; is aware that the debtor is entitled to (ii) The amount of the claim; payments from the Civil Service Re- (iii) The date salary offset deductions tirement and Disability Fund or other will begin; and similar payments that may be due the (iv) The amount of such deductions.

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(2) Incomplete claim. When the En- are statutory or contractual provisions dowment receives an incomplete cer- to the contrary. tification of debt from a creditor agency, the Endowment will return the Subpart C—Tax Refund Offset claim with a notice that the creditor agency must comply with the proce- § 1150.30 Which debts can the Endow- dures required under 5 U.S.C. 5514 and 5 ment refer to the Treasury for col- CFR part 550, subpart K, and must lection by offsetting tax refunds? properly certify a claim to the Endow- (a) The regulations in this subpart ment before the Endowment will take implement 31 U.S.C. 3720A, which au- action to collect from the employee’s thorizes the Treasury to reduce a tax current pay account. refund by the amount of a past-due, le- (3) The Endowment is not authorized gally enforceable debt owed to a Fed- to review the merits of the creditor eral agency. agency’s determination with respect to (b) For purposes of this section, a the amount or validity of the debt cer- past-due, legally enforceable debt ref- tified by the creditor agency. erable to the Treasury for tax refund (4) Employees who transfer from the offset is a debt that is owed to the En- Endowment to another paying agency. dowment and: If, after the creditor agency has sub- (1) Is at least $25.00; mitted the claim to the Endowment, (2) Except in the case of a judgment the employee transfers from the En- debt, has been delinquent for at least dowment to a different paying agency three months and will not have been before the debt is collected in full, the delinquent more than 10 years at the Endowment will certify the total time the offset is made; amount collected on the debt and no- (3) Cannot currently be collected tify the employee and the creditor under the salary offset provisions of 5 agency in writing. The notification to U.S.C. 5514; the creditor agency will include infor- (4) Is ineligible for administrative mation on the employee’s transfer. offset under 31 U.S.C. 3716(a) by reason § 1150.24 Under what conditions will of 31 U.S.C. 3716(c)(2) or cannot be col- the Endowment make a refund of lected by administrative offset under 31 amounts collected by salary offset? U.S.C. 3716(a) by the Endowment (a) If the Endowment is the creditor against amounts payable to the debtor agency, it will promptly refund any by the Endowment; amount deducted under the authority (5) With respect to which the Endow- of 5 U.S.C. 5514, when: ment has (1) The debt is waived or all or part of (i) given the debtor at least 60 days the funds deducted are otherwise found to present evidence that all or part of not to be owed (unless expressly pro- the debt is not past due or legally en- hibited by statute or regulation); or forceable, (2) An administrative or judicial (ii) considered evidence presented by order directs the Endowment to make the debtor, and a refund. (iii) determined that an amount of (b) Unless required or permitted by the debt is past due and legally en- law or contract, refunds under this sec- forceable; tion will not bear interest. (6) Has been disclosed by the Endow- ment to a credit reporting agency as § 1150.25 Will the collection of a claim authorized by 31 U.S.C. 3711(e) and by salary offset act as a waiver of § 1150.12 of this part, unless the credit my rights to dispute the claimed reporting agency would be prohibited debt? from reporting information concerning Your involuntary payment of all or the debt by reason of 15 U.S.C. 1681c; any portion of a debt under this sub- (7) With respect to which the Endow- part will not be construed as a waiver ment has notified or has made a rea- of any rights that you may have under sonable attempt to notify the debtor 5 U.S.C. 5514 or other provisions of a that: law or written contract, unless there (i) The debt is past due, and

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(ii) Unless repaid within 60 days of debtors of remedial actions available the date of the Notice, the debt may be to defer the offset or prevent it from referred to the Treasury for offset taking place. against any refund of overpayment of tax; and Subpart D—Administrative Offset (8) All other requirements of 31 U.S.C. 3720A and the Treasury regula- § 1150.40 Under what circumstances tions relating to the eligibility of a will the Endowment collect debt for tax return offset (31 CFR 285.2) amounts that I owe to the Endow- have been satisfied. ment (or some other Federal agency) by offsetting the debt against payments that the Endowment (or § 1150.31 What are the Endowment’s some other Federal agency) owes procedures for collecting debts by me? tax refund offset? (a) The regulations in this subpart (a) The Chairperson will be the point apply to the collection of any debts of contact with the Treasury for ad- you owe to the Endowment, or to any ministrative matters regarding the off- request from another Federal agency set program. that the Endowment collect a debt you (b) The Endowment will ensure that owe by offsetting your debt against a the procedures prescribed by the Treas- payment the Endowment owes you. Ad- ury are followed in developing informa- ministrative offset is authorized under tion about past-due debts and submit- Section 5 of the Federal Claims Collec- ting the debts to the Treasury. tion Act of 1966, as amended (31 U.S.C. (c) The Endowment will submit to 3716). The Endowment shall carry out the Treasury a notification of a tax- administrative offset in accordance payer’s liability for past-due legally with the provisions of the Federal enforceable debt. This notification will Claims Collection Standards; the regu- contain the following: lations in this subpart are intended (1) The name and taxpayer identifica- only to supplement the provisions of tion number of the debtor; the Federal Claims Collection Stand- (2) The amount of the past-due and ards. legally enforceable debt; (b) The Chairperson, after attempting (3) The date on which the original to collect a debt you owe to the Endow- debt became past due; and ment under Section 3(a) of the Federal (4) A statement certifying that, with Claims Collection Act of 1966, as respect to each debt reported, all of the amended (31 U.S.C. 3711(a)), may col- requirements of § 1150.30(b) have been lect the debt by administrative offset, satisfied. subject to the following: (d) For purposes of this section, no- (1) The debt you owe is certain in tice that collection of the debt is af- amount; and fected by a bankruptcy proceeding in- (2) It is in the best interest of the En- volving the debtor will bar referral of dowment to collect your debt by ad- the debt to the Treasury. ministrative offset because of the de- (e) The Endowment shall promptly creased costs of collection and accel- notify the Treasury to correct data eration in the payment of the debt. when it: (c) No collection by administrative (1) Determines that an error has been offset will be made on any debt that made with respect to a debt that has has been outstanding for more than 10 been referred; years unless facts material to the En- (2) Receives or credits a payment on dowment or a federal agency’s right to the debt; or collect the debt were not known, and (3) Receives notice that the person reasonably could not have been known, owing the debt has filed for bankruptcy by the official or officials responsible under Title 11 of the United States for discovering and collecting the debt. Code or has been adjudicated bankrupt (d) The regulations in this subpart do and the debt has been discharged. not apply to: (f) When advising debtors of an intent (1) A case in which administrative to refer a debt to the Treasury for off- offset of the type of debt involved is ex- set, the Endowment will also advise plicitly prohibited by statute; or

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(2) Debts owed to the Endowment by that such an offset would not otherwise Federal agencies. be contrary to law. (b) Multiple debts. In instances where § 1150.41 How will the Endowment re- two or more creditor agencies are seek- quest that my debt to the Endow- ment be collected by offset against ing administrative offsets, or where some payment that another Federal two or more debts are owed to a single agency owes me? creditor agency, the Endowment may, The Chairperson may request that in its discretion, allocate the amount funds due and payable to you by an- it owes to you to the creditor agencies other Federal agency instead be paid to in accordance with the best interest of the Endowment to satisfy a debt you the United States as determined by the owe to the Endowment. In requesting facts and circumstances of the par- administrative offset, the Endowment ticular case, paying special attention will certify in writing to the Federal to applicable statutes of limitations. agency that is holding funds for you: (a) That you owe the debt; § 1150.43 When may the Endowment (b) The amount and basis of the debt; make an offset in an expedited and manner? (c) That the Endowment has com- The Endowment may effect an ad- plied with the requirements of 31 ministrative offset against a payment U.S.C. 3716, its own administrative off- to be made to you before completion of set regulations in this subpart, and the the procedures required by §§ 1150.41 applicable provisions of the Federal and 1150.42 if failure to take the offset Claims Collection Standards with re- would substantially jeopardize the En- spect to providing you with due proc- dowment’s ability to collect the debt ess. and the time before the payment is to § 1150.42 What procedures will the En- be made does not reasonably permit dowment use to collect amounts I the completion of those procedures. An owe to a Federal agency by offset- expedited offset will be followed ting a payment that the Endowment promptly by the completion of those would otherwise make to me? procedures. Amounts recovered by off- (a) Any Federal agency may request set, but later found not to be owed to that the Endowment administratively the Endowment, will be promptly re- offset funds due and payable to you in funded. order to collect a debt you owe to that agency. The Endowment will initiate § 1150.44 Can a judgment I have ob- the requested offset only upon: tained against the United States be (1) Receipt of written certification used to satisfy a debt that I owe to from the creditor agency stating: the Endowment? (i) That you owe the debt; Collection by offset against a judg- (ii) The amount and basis of the debt; ment obtained by a debtor against the (iii) That the agency has prescribed regulations for the exercise of adminis- United States will be accomplished in trative offset; and accordance with 31 U.S.C. 3728. (iv) That the agency has complied with its own administrative offset reg- PART 1151—NONDISCRIMINATION ulations and with the applicable provi- ON THE BASIS OF HANDICAP sions of the Federal Claims Collection Standards, including providing you Subpart A—General Provisions with any required hearing or review; and Sec. (2) A determination by the Chair- 1151.1 Purpose. person that offsetting funds payable to 1151.2 Application. you by the Endowment in order to col- 1151.3 Definitions. lect a debt owed by you would be in the 1151.4 Notice. best interest of the United States as 1151.5 Inconsistent State laws and effect of determined by the facts and cir- employment opportunities. cumstances of the particular case, and 1151.6–1151.10 [Reserved]

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Subpart B—Standards for Determining Who § 1151.3 Definitions. Are Handicapped Persons As used in this part, the term: 1151.11 Handicapped person. (a) The Act means the Rehabilitation 1151.12 Qualified handicapped person. Act of 1973, Public Law 93–112, as 1151.13–1151.15 [Reserved] amended by the Rehabilitation Act Amendments of 1974, (Pub. L. 93–516, 29 Subpart C—Discrimination Prohibited U.S.C. 706 et seq.) and the Comprehen- GENERAL sive Rehabilitation Services Amend- 1151.16 General prohibitions against dis- ments of 1978, (Pub. L. 95–602). crimination. (b) Section 504 means section 504 of 1151.17 Specific discriminatory actions pro- the Act. hibited. (c) Endowment means the National 1151.18 Illustrative examples. Endowment for the Arts. 1151.19–1151.20 [Reserved] (d) Chairman means the Chairman, ACCESSIBILITY National Endowment for the Arts. 1151.21 Discrimination prohibited. (e) Recipient means any state or its 1151.22 Existing facilities. political subdivision, any instrumen- 1151.23 New construction. tality of a state or its political subdivi- 1151.24 Historic properties. [Reserved] sion, any public or private agency, in- 1151.25–1151.30 [Reserved] stitution, organization, or other enti-

EMPLOYMENT ty, or any person to which federal financial assistance is extended directly 1151.31 Discrimination prohibited. or through another recipient, including 1151.32 Reasonable accommodation. 1151.33 Employment criteria. any successor, assignee, or transferee 1151.34 Preemployment inquiries. of a recipient, but excluding the ulti- 1151.35–1151.40 [Reserved] mate beneficiary of the assistance. (f) Federal financial assistance means Subpart D—Enforcement any grant, loan, contract (other than a 1151.41 Assurances required. procurement contract or a contract of 1151.42 Self evaluation. insurance or guaranty), or any other 1151.43 Adoption of grievance procedures. arrangement by which the Endowment 1151.44 Endowment enforcement and com- provides or otherwise makes available pliance procedures. assistance in the form of: 1151.45–1151.50 [Reserved] (1) Funds; AUTHORITY: 29 U.S.C. 794. (2) Services of federal personnel; or SOURCE: 44 FR 22734, Apr. 17, 1979, unless (3) Real and personal property or any otherwise noted. interest in or use of such property, including: Subpart A—General Provisions (i) Transfers of leases of such property for less than fair market value or § 1151.1 Purpose. for reduced consideration; and, The purpose of this part is to imple- (ii) proceeds from a subsequent trans- ment section 504 of the Rehabilitation fer or lease of such property if the fed- Act of 1973, which is designed to elimi- eral share of its fair market value is nate discrimination on the basis of not returned to the Federal Govern- handicap in any program or activity ment. receiving Federal financial assistance. (g) Facility means all or any portion of buildings, structures, equipment, § 1151.2 Application. roads, walks, parking lots, or other This part applies to each recipient of real or personal property or interest in financial assistance from the National such property. Endowment for the Arts and to each (h) Program or activity means all of program or activity that receives such the operations of any entity described assistance. in paragraphs (h)(1) through (4) of this [44 FR 22734, Apr. 17, 1979, as amended at 68 section, any part of which is extended FR 51384, Aug. 26, 2003] Federal financial assistance:

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(1)(i) A department, agency, special and continuing notification may in- purpose district, or other instrumen- clude the posting of notices, publica- tality of a State or of a local govern- tion in print, audio, and visual media, ment; or placement of notices in a recipient’s (ii) The entity of such State or local publication, and distribution of other government that distributes such as- written and verbal communications. sistance and each such department or (b) If a recipient publishes or uses re- agency (and each other State or local cruitment materials or publications government entity) to which the as- containing general information that it sistance is extended, in the case of as- makes available to participants, bene- sistance to a State or local govern- ficiaries, applicants, or employees, it ment; shall include in those materials or pub- (2)(i) A college, university, or other lications a statement of the policy de- postsecondary institution, or a public scribed in paragraph (a) of this section. system of higher education; or A recipient may meet the requirement (ii) A local educational agency (as de- of this paragraph either by including fined in 20 U.S.C. 7801), system of voca- appropriate inserts in existing mate- tional education, or other school sys- rials and publications or by revising tem; and reprinting the materials and publi- (3)(i) An entire corporation, partner- cations. ship, or other private organization, or [44 FR 22734, Apr. 17, 1979, as amended at 68 an entire sole proprietorship— FR 51384, Aug. 26, 2003] (A) If assistance is extended to such corporation, partnership, private orga- § 1151.5 Inconsistent State laws and ef- nization, or sole proprietorship as a fect of employment opportunities. whole; or (a) Recipients are not excused from (B) Which is principally engaged in complying with this part as a result of the business of providing education, state or local laws which limit the eli- health care, housing, social services, or gibility of handicapped persons to re- parks and recreation; or ceive services or to practice a profes- (ii) The entire plant or other com- sion or occupation. parable, geographically separate facil- (b) The presence of limited employ- ity to which Federal financial assist- ment opportunities in a particular pro- ance is extended, in the case of any fession does not excuse a recipient other corporation, partnership, private from complying with the regulation. organization, or sole proprietorship; or For example, a music school receiving (4) Any other entity which is estab- Endowment financial assistance could lished by two or more of the entities not deny admission to a qualified blind described in paragraph (h)(1), (2), or (3) applicant because a blind singer may of this section. experience more difficulty than a non- [44 FR 22734, Apr. 17, 1979, as amended at 68 handicapped singer in finding a job. FR 51384, Aug. 26, 2003] §§ 1151.6–1151.10 [Reserved] § 1151.4 Notice. (a) A recipient shall take appropriate Subpart B—Standards for Deter- initial and continuing steps to notify mining Who Are Handi- participants, beneficiaries, applicants, capped Persons and employees, including those with impaired vision or hearing, and unions § 1151.11 Handicapped person. or professional organizations holding (a) Handicapped person means any collective bargaining or professional person who has a physical or mental agreements with the recipient that it impairment that substantially limits does not discriminate on the basis of one or more major life activities, has a handicap in violation of section 504 and record of such an impairment, or is re- this part. The notification shall state, garded as having such an impairment. where appropriate, that the recipient For purposes of section 504, in connec- does not discriminate in admission or tion with employment, this term does access to, or employment in, its pro- not include any individual who is an al- grams or activities. Methods of initial coholic or drug abuser whose current

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use of alcohol or drugs prevents such but is treated by a recipient as having individual from performing the duties such an impairment. of the job in question or whose employment, by reason of such current alco- § 1151.12 Qualified handicapped per- hol or drug abuse, would constitute a son. direct threat to the property or safety Qualified handicapped person means: of others. (a) With respect to employment, a (b) As used in paragraph (a) of this handicapped person who, with reason- section, the phrase: able accommodation, can perform the (1) Physical or mental impairment essential functions of the job in ques- means: tion; and (i) Any physiological disorder or con- (b) With respect to services, a handi- dition, cosmetic disfigurement, or ana- capped person who meets the essential tomical loss affecting one or more of eligibility requirements for the receipt the following body systems: Neuro- of such services. logical; musculoskeletal; special sense organs; respiratory, including speech §§ 1151.13–1151.15 [Reserved] organs; cardiovascular; reproductive; digestive; genito-urinary; hemic and lymphatic; skin; and endocrine; or Subpart C—Discrimination (ii) Any mental or psychological dis- Prohibited order, such as mental retardation, or- GENERAL ganic brain syndrome, emotional and mental illness, and specific learning § 1151.16 General prohibitions against disabilities. The term physical or mental discrimination. impairment includes, but is not limited to, such diseases and conditions as or- (a) No qualified handicapped person thopedic, visual, speech, and hearing shall, on the basis of handicap, be ex- impairments, cerebral palsy, epilepsy, cluded from participation in, be denied muscular dystrophy, multiple sclerosis, the benefits of, or otherwise be sub- cancer, heart disease, diabetes, mental jected to discrimination under any pro- retardation, emotional illness, and gram or activity which receives federal drug addiction and alcoholism. financial assistance. (2) Major life activities means func- (b) These regulations do not prohibit tions such as caring for one’s self, per- the exclusion of nonhandicapped performing manual tasks, walking, seeing, sons or persons with a specific type of hearing, speaking, breathing, learning, handicap from aid, benefits, or services and working. limited by Federal statute or executive (3) Has a record of such an impairment order to handicapped persons or per- means has a history of, or has been sons with a different type of handicap. misclassified as having, a mental or (c) Recipients shall take appropriate physical impairment that substantially steps to insure that no handicapped in- limits one or more major life activi- dividual is denied the benefits of, ex- ties. cluded from participation in, or other- (4) Is regarded as having an impairment wise subjected to discrimination in any means: program or activity receiving Endow- (i) Has a physical or mental impairment financial assistance because of ment that does not substantially limit the absence of appropriate auxiliary major life activities but that is treated aids for individuals with impaired sen- by a recipient as constituting such a sory, manual, or speaking skills. limitation; (d) Recipients shall take appropriate (ii) Has a physical or mental impair- steps to insure that communications ment that substantially limits major with their applicants, employees, and life activities only as a result of the attitudes of others toward such impair- beneficiaries are available to persons ment; with impaired vision and hearing. (iii) Has none of the impairments defined in paragraph (b)(1) of this section

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(e) Recipients shall administer pro- handicapped person the opportunity to grams or activities in the most inte- participate in such aid, benefits, or grated setting appropriate to the needs services that are not separate or dif- of qualified handicapped persons. ferent. (c) A recipient may not, directly or [44 FR 22734, Apr. 17, 1979, as amended at 68 FR 51384, Aug. 26, 2003] through contractual or other arrangements, utilize criteria or methods of § 1151.17 Specific discriminatory ac- administration: tions prohibited. (1) That have the effect of subjecting (a) A recipient, in providing any aid, qualified handicapped persons to dis- benefit, or service, either directly or crimination on the basis of handicap; through contractual, licensing, or (2) That have the purpose or effect of other arrangements, shall not, on the defeating or substantially impairing basis of handicap: accomplishment of the objectives of (1) Deny a qualified handicapped per- the recipient’s program or activity son the opportunity to participate in with respect to handicapped persons; or or benefit from the aid, benefit, or (3) That perpetuate the discrimina- service; tion of another recipient if both recipi- (2) Afford a qualified handicapped ents are subject to common adminis- person an opportunity to participate in trative control or are agencies of the or benefit from the aid, benefit, or same state. service that is not equal to that af- (d) A recipient may not, in deter- forded others; mining the site or location of a facil- (3) Provide a qualified handicapped ity, make selections: person with an aid, benefit, or service (1) That have the effect of excluding that is not as effective in affording handicapped persons from, denying equal opportunity to obtain the same them the benefits of, or otherwise sub- result, to gain the same benefit, or to jecting them to discrimination under reach the same level of achievement as any program or activity that receives that provided to others; federal financial assistance; or (4) Provide different or separate aid, (2) That have the purpose or effect of benefits, or services to handicapped defeating or substantially impairing persons or to any class of handicapped the accomplishment of the objectives persons unless such action is necessary of the program or activity with respect to provide qualified handicapped per- to handicapped persons. (e) As used in this section, the aid, sons with aid, benefits, or services that benefit, or service provided under a are as effective as those provided to program or activity receiving federal others; (5) Aid or perpetuate discrimination financial assistance includes any aid, against a qualified handicapped person benefit, or service provided in or by providing significant assistance to through a facility that has been con- an agency, organization, or person that structed, expanded, altered, leased or discriminates on the basis of handicap rented, or otherwise acquired, in whole in providing any aid, benefit, or service or in part, with federal financial assist- to beneficiaries of the recipient’s pro- ance. gram or activity; [44 FR 22734, Apr. 17, 1979, as amended at 68 (6) Deny a qualified handicapped per- FR 51384, Aug. 26, 2003] son the opportunity to participate as a member of planning or advisory boards; § 1151.18 Illustrative examples. or (a) The following examples will illus- (7) Otherwise limit a qualified handi- trate the application of the foregoing capped person in the enjoyment of any provisions to some of the activities right, privilege, advantage, or oppor- funded by the National Endowment for tunity enjoyed by others receiving an the Arts. aid, benefit, or service. (1) A museum exhibition catalogue or (b) Despite the existence of separate small press editions supported by the or different aid, benefits, or services Endowment may be made usable by the provided in accordance with this part, blind and the visually impaired a recipient may not deny a qualified through cassette tapes, records, discs,

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braille, readers and simultaneous pub- (e) In carrying out the mandate of lications; section 504 and these implementing (2) A theatre performance supported regulations recipients should make by Federal funds may be made avail- every effort to administer Endowment able to deaf and hearing impaired per- assisted programs or activities in a set- sons through the use of a sign language ting in which able-bodied and disabled interpreter or by providing scripts in persons are integrated, e.g., tours made advance of the performance. available to the hearing impaired (3) A performing arts organization re- should be open to the public at large ceiving Federal funds and offering, for and everyone should be permitted to example, a specific event in an inacces- enjoy the benefits of a tactile experi- sible facility may arrange to provide a ence in a museum. reasonable opportunity for that specific event to be offered to the public [44 FR 22734, Apr. 17, 1979, as amended at 68 at large in an alternative accessible FR 51384, Aug. 26, 2003] space; e.g., a theatre offering four dif- §§ 1151.19–1151.20 [Reserved] ferent plays a season may offer at least one performance of each play in an al- ACCESSIBILITY ternative accessible space. (4) Recipients of federal funds should § 1151.21 Discrimination prohibited. make every effort to assure that they do not support organizations or indi- No qualified handicapped person viduals that discriminate; shall, because a recipient’s facilities (5) A handicapped person with experi- are inaccessible to or unusable by ence and expertise equal to qualifica- handicapped persons, be denied the tion standards established by a plan- benefits of, be excluded from participa- ning or advisory board may not be ex- tion in, or otherwise be subjected to cluded from participation on the board discrimination under any program or on the basis of handicap. This does not activity to which this part applies. mean that every planning or advisory § 1151.22 Existing facilities. board necessarily must include a handicapped person. (a) A recipient shall operate each (b) Despite the existence of permis- program or activity to which this part sible separate or different aid, benefits, applies so that when each part is or services, e.g., periodic performances viewed in its entirety it is readily ac- in alternative accessible spaces, a cessible to and usable by handicapped physically handicapped person who persons. This paragraph does not nec- wishes to be, and can be, escorted to a essarily require a recipient to make seat, may not be denied such access to each of its existing facilities or every an otherwise inaccessible theatre. part of a facility accessible to and usa- (c) State arts agencies are obligated ble by handicapped persons. to develop methods of administering (b) A recipient may comply with the federal funds so as to ensure that requirement f paragraph (a) of this sec- handicapped persons are not subjected tion through alteration of existing fa- to discrimination on the basis of handi- cilities, the construction of new facili- cap either by sub-grantees or by the ties, or any other methods that result manner in which the funds are distrib- in making its program or activity ac- uted. cessible to handicapped persons. A re- (d) In the event Endowment funds are cipient is not required to make struc- utilized to construct, expand, alter, tural changes in existing facilities lease or rent a facility, the aid, bene- where other methods are effective in fits, or services provided in or through achieving compliance with paragraph that facility must be conducted in ac- (a) of this section. In choosing among cordance with these regulations, e.g., a available methods for meeting the re- museum receiving a grant to renovate quirement of paragraph (a) of this sec- an existing facility must assure that tion, a recipient shall give priority to all museum aid, benefits, or services those methods that serve handicapped conducted in that facility are acces- persons in the most integrated setting sible to handicapped persons. appropriate.

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(c) Time period. A recipient shall com- form Federal Accessibility Standards ply with the requirement of paragraph (USAF) (appendix A to 41 CFR subpart (a) of this section within sixty days of 101–19.6) shall be deemed to comply the effective date of this part except with the requirements of this section that where structural changes are nec- with respect to those buildings. Depar- essary such changes shall be made as tures from particular technical and soon as possible but in no event later scoping requirements of UFAS by the than three years after the effective use of other methods are permitted date of this part. where substantially equivalent or (d) Transition plan. In the event greater access to and usability of the structural changes to facilities are nec- building is provided. essary to meet the requirement of (2) For purposes of this section, sec- paragraph (a) of this section, a recipi- tion 4.1.6(1)(g) of UFAS shall be inter- ent shall develop, within one year of preted to exempt from the require- the effective date of this part, a transi- ments of UFAS only mechanical rooms tion plan setting forth the steps nec- and other spaces that, because of their essary to complete such changes. The intended use, will not require accessi- plan shall be developed with the assist- bility to the public or beneficiaries or ance of interested persons, including result in the employment or residence handicapped persons or organizations therein of persons with physical handi- representing handicapped persons. caps. Upon request, the recipient shall make (3) This section does not require re- available for public inspection a copy cipients to make building alterations of the transition plan. The plan shall, that have little likelihood of being ac- at a minimum: complished without removing or alter- (1) Identify physical obstacles in the ing a load-bearing structural member. recipient’s facilities that limit the accessibility of its program or activity to [44 FR 22734, Apr. 17, 1979, as amended at 55 handicapped persons; FR 52138, 52142, Dec. 19, 1990] (2) Describe in detail the methods that will be used to make the facilities § 1151.24 Historic properties. [Re- served] accessible; (3) Specify the schedule for taking §§ 1151.25–1151.30 [Reserved] the steps necessary to achieve full accessibility under paragraph (a) of this EMPLOYMENT section and, if the time period of the transition plan is longer than one year, § 1151.31 Discrimination prohibited. identify steps that will be taken during (a) No qualified handicapped person each year of the transition period; and shall, on the basis of handicap, be sub- (4) Indicate the person responsible for jected to discrimination in employ- implementation of the plan. ment under any program or activity [44 FR 22734, Apr. 17, 1979, as amended at 68 that receives federal financial assist- FR 51384, Aug. 26, 2003] ance. (b) A recipient shall make all deci- § 1151.23 New construction. sions concerning employment under (a) Design, construction, and alteration. any program or activity to which this New facilities shall be designed and part applies in a manner which ensures constructed to be readily accessible to that discrimination on the basis of and usable by handicapped persons. Al- handicap does not occur and may not terations to existing facilities shall, to limit, segregate, or classify applicants the maximum extent feasible, be de- or employees in any way that ad- signed and constructed to be readily versely affects their opportunities or accessible to and usable by handi- status because of handicap. capped persons. (c) A recipient may not participate in (b) Conformance with Uniform Federal a contractual or other relationship Accessibility Standards. (1) Effective as that has the effect of subjecting quali- of January 18, 1991, design, construc- fied handicapped applicants or employ- tion, or alteration of buildings in con- ees to discrimination prohibited by formance with sections 3-8 of the Uni- this subpart. The relationships referred

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to in this paragraph include relation- (1) Making facilities used by employ- ships with employment and referral ees readily accessible to and usable by agencies, with labor unions, with orga- handicapped persons; and nizations providing or administering (2) Job restructuring, part-time or fringe benefits to employees of the re- modified work schedules, acquisition, cipients, and with organizations pro- or modification of equipment or de- viding training and apprenticeships. vices, such as use of telecommuni- (d) The prohibition against discrimi- cation devices and amplifiers on tele- nation in employment applies to the phones, the provision of readers or in- following activities: terpreters, and other similar actions. (1) Recruitment, advertising, and the processing of applications for employ- (c) In determining pursuant to para- ment; graph (a) of this section whether an ac- (2) Hiring, upgrading, promotion, commodation would impose an undue award of tenure, demotion, transfer, hardship on the operation of a recipi- layoff, termination, right of return ent’s program or activity, factors to be from layoff, and rehiring; considered include: (3) Rates of pay or any other form of (1) The overall size of the recipient’s compensation and changes in com- program or activity with respect to pensation; number of employees, number and type (4) Job assignments, job classifica- of facilities, and size of budget; tions, organizational structures, posi- (2) The type of the recipient’s oper- tion descriptions, lines of progression, ation, including the composition and and seniority lists; structure of the recipient’s workforce; (5) Leaves of absences, sick leave, or and any other leave; (3) The nature and cost of the accom- (6) Fringe benefits available by vir- modation needed. tue of employment, whether or not administered by the recipient; [44 FR 22734, Apr. 17, 1979, as amended at 68 (7) Selection and financial support FR 51384, Aug. 26, 2003] for training, including apprenticeship, professional meetings, conferences, and § 1151.33 Employment criteria. other related activities, and selection (a) A recipient may not make use of for leaves of absence to pursue train- any employment test or other selection ing; criterion that screens out or tends to (8) Employer sponsored activities, in- screen out handicapped persons or any cluding those that are social or rec- class of handicapped persons unless: reational; and (1) The test score or other selection (9) Any other term, condition, or criterion, as used by the recipient, is privilege of employment. shown to be job-related for the position (e) A recipient’s obligation to comply in question; and with this subpart is not affected by any inconsistent term of any collective (2) Alternative job-related tests or bargaining agreement to which it is a criteria are unavailable. party. (b) A recipient shall select and administer tests concerning employment [44 FR 22734, Apr. 17, 1979, as amended at 68 so as best to ensure that, when admin- FR 51384, Aug. 26, 2003] istered to an applicant or employee § 1151.32 Reasonable accommodation. who has a handicap that impairs sensory, manual, or speaking skills, the (a) A recipient shall make reasonable accommodation to the known physical test results accurately reflect the ap- or mental limitations of an otherwise plicant’s or employee’s job skills, apti- qualified handicapped applicant or em- tude, or other factors relevant to ade- ployee unless the recipient can dem- quate performance of the job in ques- onstrate that the accommodation tion. would impose an undue hardship on the operation of its program or activity. § 1151.34 Preemployment inquiries. (b) Reasonable accommodation may A recipient may not, except as pro- include: vided below, conduct a preemployment

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medical examination, make preemploy- work or duties of handicapped persons ment inquiry as to whether the appli- and regarding necessary accommoda- cant is a handicapped person, or in- tions; quire as to the nature or severity of a (2) First aid and safety personnel handicap. A recipient may, however, may be informed, where appropriate, if make preemployment inquiry into an the condition might require emergency applicant’s ability to perform job-re- treatment; and lated functions. (3) Government officials inves- (a) When a recipient is taking reme- tigating compliance with the Act shall dial action to correct the effects of be provided relevant information upon past discrimination, when a recipient request. is taking voluntary action to overcome the effects of conditions that resulted [44 FR 22734, Apr. 17, 1979; 45 FR 57129, Aug. in limited participation in its federally 27, 1980] assisted program or activity, or when a recipient is taking affirmative action §§ 1151.35–1151.40 [Reserved] pursuant to section 504 of the Act, the recipient may invite applicants for em- Subpart D—Enforcement ployment to indicate whether and to what extent they are handicapped, pro- § 1151.41 Assurances required. vided, that: (a) An applicant for federal financial (1) The recipient states clearly on assistance to which this part applies any written questionnaire used for this shall submit an assurance, on a form purpose or makes clear orally if no written questionnaire is used that the specified by the Chairman, that the information requested is intended for program or activity will be operated in use solely in connection with its reme- compliance with this part. An appli- dial action obligations or its voluntary cant may incorporate these assurances or affirmative action efforts; and by reference in subsequent applications (2) The recipient states clearly that to the Endowment. the information is being requested on a (b) Duration of obligation. (1) In the voluntary basis, that it will be kept case of federal financial assistance ex- confidential as provided in paragraph tended to provide personal property, (c) of this section, that refusal to pro- the assurance will obligate the recipi- vide it will not subject the applicant or ent for the period during which it re- employee to any adverse treatment, tains ownership or possession of the and that it will be used only in accord- property. ance with this part. (2) In all other cases the assurance (b) Nothing in this section shall pro- will obligate the recipient for the pe- hibit a recipient from conditioning an riod during which federal financial as- offer of employment on the results of a sistance is extended. medical examination conducted prior (c) Covenants. Where property is pur- to the employee’s entrance on duty, chased or improved with federal finan- provided, that: (1) All entering employees are sub- cial assistance, the recipient shall jected to such an examination regard- agree to include in any instrument ef- less of handicap; and fecting or recording any transfer of the (2) The results of such an examina- property a covenant running with the tion are used only in accordance with property assuring nondiscrimination the requirements of this part. for the period during which the real (c) Information obtained in accord- property is used for a purpose for which ance with this section as to the med- the federal financial assistance is ex- ical condition or history of the appli- tended or for another purpose involving cant shall be collected and maintained the provision of similar services or on separate forms that shall be ac- benefits. corded confidentiality as medical records, except that: [44 FR 22734, Apr. 17, 1979, as amended at 68 FR 51384, Aug. 26, 2003] (1) Supervisors and managers may be informed regarding restrictions on the

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§ 1151.42 Self evaluation. § 1151.44 Endowment enforcement and compliance procedures. (a) A recipient shall within six months of the effective date of this The procedural provisions applicable part: to title VI of the Civil Rights Act of (1) Evaluate, with the assistance of 1964 apply to this part. These proce- interested persons, including handi- dures are found in §§ 1110.8 through capped persons or organizations rep- 1110.11 of part 1110 of this title. resenting handicapped persons, its current policies and practices and the ef- §§ 1151.45–1151.50 [Reserved] fects thereof that do not or may not meet the requirements of this part; PART 1152—INTERGOVERNMENTAL (2) Modify, after consultation with REVIEW OF NATIONAL ENDOW- interested persons, including handi- MENT FOR THE ARTS PROGRAMS capped persons or organizations rep- AND ACTIVITIES resenting handicapped persons, any policies and practices that do not meet Sec. the requirements of this part; and 1152.1 What is the purpose of these regula- (3) Take, after consultation with in- tions? terested persons, including handi- 1152.2 What definitions apply to these regu- capped persons or organizations rep- lations? resenting handicapped persons, appro- 1152.3 What programs and activities of the priate remedial steps to eliminate the Endowment are subject to these regula- effects of any discrimination that re- tions? sulted from adherence to these policies 1152.4 What are the Chairman’s general re- and practices. sponsibilities under the Order? (4) Maintain on file, make available 1152.5 What is the Chairman’s obligation for public inspection, and provide to with respect to Federal interagency coordination? the Endowment upon request, for at 1152.6 What procedures apply to the selec- least three years following completion tion of programs and activities under of the self-evaluation: these regulations? (i) A list of the interested persons 1152.7 How does the Chairman communicate consulted; with state and local officials concerning (ii) A description of areas examined the Endowment’s programs and activi- and any problems identified; and, ties? (iii) A description of any modifica- 1152.8 How does the Chairman provide tions made and of any remedial steps states with an opportunity to comment on proposed Federal financial assistance? taken. 1152.9 How does the Chairman receive and (5) The completed self-evaluation respond to comments? should be signed by a responsible offi- 1152.10 How does the Chairman make efforts cial designated to coordinate the re- to accommodate intergovernmental con- cipient’s efforts in connection with this cerns? section. 1152.11 What are the Chairman’s obligations in interstate situations? § 1151.43 Adoption of grievance proce- 1152.12 How may a state simplify, consoli- dures. date, or substitute federally required A recipient may adopt an internal state plans? grievance procedure in order to provide 1152.13 May the Chairman waive any provi- for the prompt and equitable resolution sion of these regulations? of complaints alleging any action pro- AUTHORITY: E.O. 12372, July 14, 1982 (47 FR hibited by this part. A responsible offi- 30959), as amended April 8, 1983 (48 FR 15887); cial should be designated to coordinate sec. 401 of the Intergovernmental Coopera- the recipient’s efforts in connection tion Act of 1968, as amended (31 U.S.C. 6506) with this section. Such procedures need SOURCE: 48 FR 29352, June 24, 1983, unless not be established with respect to com- otherwise noted. plaints from applicants for employment.

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§ 1152.1 What is the purpose of these cials of those state and local govern- regulations? ments that would provide the non-Fed- (a) The regulations in this part im- eral funds for, or that would be directly plement Executive Order 12372, ‘‘Inter- affected by, proposed Federal financial governmental Review of Federal Pro- assistance from the Endowment. grams,’’ issued July 14, 1982 and amend- (b) If a state adopts a process under ed on April 8, 1983. These regulations the Order to review and coordinate pro- also implement applicable provisions of posed Federal financial assistance the section 401 of the Intergovernmental Chairman, to the extent permitted by Cooperation Act of 1968. law: (b) these regulations are intended to (1) Uses the state process to deter- foster an intergovernmental partner- mine official views of state and local ship and a strengthened Federalism by elected officials; relying on state processes and on state, (2) Communicates with state and areawide, regional and local coordina- local elected officials as early in a pro- tion for review of proposed Federal fi- gram planning cycle as is reasonably nancial assistance and direct Federal feasible to explain specific plans and development. actions; (c) These regulations are intended to (3) Makes efforts to accommodate improve the internal management of state and local elected officials’ con- the Endowment, and are not intended cerns with proposed Federal financial to create any right or benefit enforce- assistance that is communicated able at law by a party against the En- through the state process; dowment or its officers. (4) Allows the states to simplify and consolidate existing federally required § 1152.2 What definitions apply to these regulations? state plan submissions; (5) Where state planning and budg- Chairman means the Chairman of the eting systems are sufficient and where National Endowment for the Arts or an permitted by law, encourages the sub- official or employee of the Endowment stitution of state plans for federally re- acting for the Chairman under a dele- quired state plans; gation of authority. Endowment means the National En- (6) Seeks the coordination of views of dowment for the Arts. affected state and local elected offi- Order means Executive Order 12372, cials in one state with those of another issued July 14, 1982, and amended April state when proposed Federal financial 8, 1983 and titled ‘‘Intergovernmental assistance has an impact on interstate Review of Federal Programs.’’ metropolitan urban centers or other State means any of the 50 states, the interstate areas; and District of Columbia, the Common- (7) Supports state and local govern- wealth of Puerto Rico, the Common- ments by discouraging the reauthoriza- wealth of the Northern Mariana Is- tion or creation of any planning orga- lands, Guam, American Samoa, the nization which is federally-funded, U.S. Virgin Islands, or the Trust Terri- which has a limited purpose, and which tory of the Pacific Islands. is not adequately representative of, or accountable to, state or local elected § 1152.3 What programs and activities officials. of the Endowment are subject to these regulations? § 1152.5 What is the Chairman’s obliga- The Chairman publishes in the FED- tion with respect to Federal interagency coordination? ERAL REGISTER a list of the Endow- ment’s programs and activities that The Chairman to the extent prac- are subject to these regulations. ticable, consults with and seeks advice from all other substantially affected § 1152.4 What are the Chairman’s gen- Federal departments and agencies in eral responsibilities under the an effort to assure full coordination be- Order? tween such agencies and the Endow- (a) The Chairman provides opportuni- ment regarding programs and activities for consultation by elected offi- ties covered under these regulations.

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§ 1152.6 What procedures apply to the (1) [Reserved] selection of programs and activities (2) At least 60 days from the date es- under these regulations? tablished by the Chairman to comment (a) A state may select any program on proposed Federal financial assist- or activity published in the FEDERAL ance. REGISTER in accordance with § 1152.3 of (b) This section also applies to com- this part for intergovernmental review ments in cases in which the review, co- under these regulations. Each state, ordination, and communication with before selecting programs and activi- the Endowment have been delegated. ties shall consult with local elected officials. § 1152.9 How does the Chairman re- (b) Each state that adopts a process ceive and respond to comments? shall notify the Chairman of the En- (a) The Chairman follows the proce- dowment’s programs and activities se- dures in § 1152.10 if: lected for that process. (1) A state office or official is des- (c) A state may notify the Chairman ignated to act as a single point of con- of changes in its selections at any tact between a state process and all time. For each change, the state shall Federal agencies; and submit to the Chairman an assurance (2) That office or official transmits a that the state has consulted with elect- state process recommendation for a ed local officials regarding the change. program selected under § 1152.6. The Endowment may establish dead- (b)(1) The single point of contact is lines by which states are required to not obligated to transmit comments inform the Chairman of changes in from state, areawide, regional or local their program selections. officials and entities where there is no (d) The Chairman uses a state’s proc- state process recommendation. ess as soon as feasible, depending on in- (2) If a state process recommendation dividual programs and activities, after is transmitted by a single point of con- the Chairman is notified of its selec- tact, all comments from state, tions. areawide, regional, and local officials § 1152.7 How does the Chairman com- and entities that differ from it must municate with state and local offi- also be transmitted. cials concerning the Endowment’s (c) If a state has not established a programs and activities? process, or is unable to submit a state (a) [Reserved] process recommendation, state, (b) The Chairman provides notice to areawide, regional and local officials directly affected state, areawide, re- and entities may submit comments to gional, and local entities in a state of the Endowment. proposed Federal financial assistance (d) If a program or activity is not se- if— lected for a state process, state, (1) The state has not adopted a proc- areawide, regional and local officials ess under the Order; or and entities may submit comments to (2) The assistance or development is the Endowment. In addition, if a state under program or activity not selected process recommendation for a non- for the state process. selected program or activity is trans- This notice is made by the publication mitted to the Endowment by the single in the FEDERAL REGISTER or other appoint of contact, the Chairman follows propriate means which the Endowment the procedure of § 1152.10 of this part. in its discretion deems appropriate. (e) The Chairman considers comments which do not constitute a state § 1152.8 How does the Chairman pro- process recommendation submitted vide states with an opportunity to under these regulations and for which comment on proposed Federal fi- the Chairman is not required to apply nancial assistance? the procedures of § 1152.10 of this part, (a) Except in unusual circumstance, when such comments are provided by a the Chairman gives state processes or single point of contact or directly to directly affected state, areawide, re- the Endowment by a commenting gional and local officials and entities— party.

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§ 1152.10 How does the Chairman gle point of contact, in cases in which make efforts to accommodate inter- the review, coordination, and commu- governmental concerns? nication with the Endowment have (a) If a state process provides a state been delegated. process recommendation to the Endow- (b) The Chairman uses the procedures ment through its single point of con- in § 1152.10 if a state process provides a tact, the Chairman either: state process recommendation to the (1) Accepts the recommendation; Endowment through a single point of (2) Reaches a mutually agreeable so- contact. lution with the state process; or (3) Provides the single point of con- § 1152.12 How may a state simplify, tact with such written explanation of consolidate, or substitute federally required state plans? the decision, as the Chairman in his or her discretion deems appropriate. The (a) As used in this section: Chairman may supplement the written (1) Simplify means that a state may explanation by also providing the ex- develop its own format, choose its own planation to the single point of contact submission date, and select the plan- by telephone other telecommunication, ning period for a state plan. or other means. (2) Consolidate means that a state (b) In any explanation under para- may meet statutory and regulatory re- graph (a)(3) of this section the Chair- quirements by combining two or more man informs the single point of con- plans into one document and that the tact that: state can select the format, submission (1) The Endowment will not imple- date, and planning period for the con- ment its decision for ten days after the solidated plan. single point of contact receives the ex- (3) Substitute means that a state may planation; or use a plan or other document that it (2) The Chairman has reviewed the has developed for its own purposes to decision and determined that, because meet Federal requirements. of unusual circumstances, the ten-day (b) If not inconsistent with law, a waiting period is not feasible. state may decide to try to simplify, (c) For purposes of computing the consolidate, or substitute Federally re- waiting period under paragraph (b)(1) quired state plans without prior ap- of this section, a single point of con- proval by the Chairman. tact is presumed to have received writ- (c) The Chairman reviews each state ten notification 5 days after the date of plan that a state has simplified, con- mailing of such notification. solidated, or substituted and accepts the plan only if it meets Federal re- § 1152.11 What are the Chairman’s ob- quirements. ligations in interstate situations? (a) The Chairman is responsible for: § 1152.13 May the Chairman waive any provision of these regulations? (1) Identifying proposed Gederal financial assistance that has an impact In an emergency, the Chairman may on interstate areas; waive any provision of these regula- (2) Notifying appropriate officials tions. and entities in states which have adopted a process and which select the PART 1153—ENFORCEMENT OF Endowment’s program or activity; NONDISCRIMINATION ON THE (3) Making efforts to identify and no- BASIS OF HANDICAP IN PRO- tify the affected state, areawide, re- GRAMS OR ACTIVITIES CON- gional, and local officials and entities DUCTED BY THE NATIONAL EN- in those states that have not adopted a process under the Order or do not se- DOWMENT FOR THE ARTS lect the Endowment’s program or activity; Sec. 1153.101 Purpose. (4) Responding pursuant to § 1152.10 of 1153.102 Application. this part if the Chairman receives a 1153.103 Definitions. recommendation from a designated 1153.104–1153.109 [Reserved] areawide agency transmitted by a sin- 1153.110 Self-evaluation.

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1153.111 Notice. notetakers, written materials, and 1153.112–153.129 [Reserved] other similar services and devices. 1153.130 General prohibitions against dis- Complete complaint means a written crimination. 1153.131–1153.139 [Reserved] statement that contains the complain- 1153.140 Employment. ant’s name and address and describes 1153.141–1153.148 [Reserved] the agency’s alleged discriminatory ac- 1153.149 Program accessibility: Discrimina- tion in sufficient detail to inform the tion prohibited. agency of the nature and date of the al- 1153.150 Program accessibility: Existing fa- leged violation of section 504. It shall cilities. be signed by the complainant or by 1153.151 Program accessibility: New construction and alterations. someone authorized to do so on his or 1153.152–1153.159 [Reserved] her behalf. Complaints filed on behalf 1153.160 Communications. of classes or third parties shall describe 1153.161–1153.169 [Reserved] or identify (by name, if possible) the 1153.170 Compliance procedures. alleged victims of discrimination. 1153.171–1153.999 [Reserved] Facility means all or any portion of AUTHORITY: 29 U.S.C. 794. buildings, structures, equipment, SOURCE: 51 FR 22895, 22896, June 23, 1986, roads, walks, parking lots, rolling unless otherwise noted. stock or other conveyances, or other real or personal property. § 1153.101 Purpose. Handicapped person means any person This part effectuates section 119 of who has a physical or mental impair- the Rehabilitation, Comprehensive ment that substantially limits one or Services, and Developmental Disabil- more major life activities, has a record ities Amendments of 1978, which of such an impairment, or is regarded amended section 504 of the Rehabilita- as having such an impairment. tion Act of 1973 to prohibit discrimina- As used in this definition, the phrase: tion on the basis of handicap in pro- (1) Physical or mental impairment in- grams or activities conducted by Exec- cludes— utive agencies or the United States (i) Any physiological disorder or con- Postal Service. dition, cosmetic disfigurement, or anatomical loss affecting one or more of § 1153.102 Application. the following body systems: Neuro- This part applies to all programs or logical; musculoskeletal; special sense activities conducted by the agency. organs; respiratory, including speech organs; cardiovascular; reproductive; § 1153.103 Definitions. digestive; genitourinary; hemic and For purposes of this part, the term— lymphatic; skin; and endocrine; or Assistant Attorney General means the (ii) Any mental or psychological dis- Assistant Attorney General, Civil order, such as mental retardation, or- Rights Division, United States Depart- ganic brain syndrome, emotional or ment of Justice. mental illness, and specific learning Auxiliary aids means services or de- disabilities. The term physical or mental vices that enable persons with im- impairment includes, but is not limited paired sensory, manual, or speaking to, such diseases and conditions as or- skills to have an equal opportunity to thopedic, visual, speech, and hearing participate in, and enjoy the benefits impairments, cerebral palsy, epilepsy, of, programs or activities conducted by muscular dystrophy, multiple sclerosis, the agency. For example, auxiliary aids cancer, heart disease, diabetes, mental useful for persons with impaired vision retardation, emotional illness, and include readers, brailled materials, drug addiction and alocoholism. audio recordings, telecommunications (2) Major life activities includes func- devices and other similar services and tions such as caring for one’s self, per- devices. Auxiliary aids useful for performing manual tasks, walking, seeing, sons with impaired hearing include hearing, speaking, breathing, learning, telephone handset amplifiers, tele- and working. phones compatible with hearing aids, (3) Has a record of such an impairment telecommunication devices for deaf means has a history of, or has been persons (TDD’s), interpreters, misclassified as having, a mental or

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physical impairment that substantially Section 504 means section 504 of the limits one or more major life activi- Rehabilitation Act of 1973 (Pub. L. 93– ties. 112, 87 Stat. 394 (29 U.S.C. 794)), as (4) Is regarded as having an impairment amended by the Rehabilitation Act means— Amendments of 1974 (Pub. L. 93–516, 88 (i) Has a physical or mental impair- Stat. 1617), and the Rehabilitation, ment that does not substantially limit Comprehensive Services, and Develop- major life activities but is treated by mental Disabilities Amendments of the agency as constituting such a limi- 1978 (Pub. L. 95–602, 92 Stat. 2955). As tation; used in this part, section 504 applies (ii) Has a physical or mental impair- only to programs or activities con- ment that substantially limits major ducted by Executive agencies and not life activities only as a result of the at- to federally assisted programs. titudes of others toward such impair- Substantial impairment means a sig- ment; or nificant loss of the integrity of finished (iii) Has none of the impairments de- materials, design quality, or special fined in paragraph (1) of this definition character resulting from a permanent but is treated by the agency as having alteration. such an impairment. Historic preservation programs means §§ 1153.104–1153.109 [Reserved] programs conducted by the agency that have preservation of historic properties § 1153.110 Self-evaluation. as a primary purpose. (a) The agency shall, by August 24, Historic properties means those prop- 1987, evaluate its current policies and erties that are listed or eligible for practices, and the effects thereof, that listing in the National Register of His- do not or may not meet the require- toric Places or properties designated as ments of this part, and, to the extent historic under a statute of the appro- modification of any such policies and priate State or local government body. practices is required, the agency shall Qualified handicapped person means— proceed to make the necessary modi- (1) With respect to preschool, elemen- fications. tary, or secondary education services (b) The agency shall provide an op- provided by the agency, a handicapped portunity to interested persons, includ- person who is a member of a class of ing handicapped persons or organiza- persons otherwise entitled by statute, tions representing handicapped per- regulation, or agency policy to receive sons, to participate in the self-evalua- education services from the agency. tion process by submitting comments (2) With respect to any other agency (both oral and written). program or activity under which a per- (c) The agency shall, until three son is required to perform services or years following the completion of the to achieve a level of accomplishment, a self-evaluation, maintain on file and handicapped person who meets the es- make available for public inspection: sential eligibility requirements and who can acheive the purpose of the pro- (1) A description of areas examined gram or activity without modifications and any problems identified, and in the program or activity that the (2) A description of any modifications agency can demonstrate would result made. in a fundamental alteration in its nature; § 1153.111 Notice. (3) With respect to any other pro- The agency shall make available to gram or activity, a handicapped person employees, applicants, participants, who meets the essential eligibility re- beneficiaries, and other interested per- quirements for participation in, or re- sons such information regarding the ceipt of benefits from, that program or provisions of this part and its applica- activity; and bility to the programs or activities (4) Qualified handicapped person is de- conducted by the agency, and make fined for purposes of employment in 29 such information available to them in CFR 1613.702(f), which is made applica- such manner as the head of the agency ble to this part by § 1153.140. finds necessary to apprise such persons

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of the protections against discrimina- sibly separate or different programs or tion assured them by section 504 and activities. this regulation. (3) The agency may not, directly or through contractual or other §§ 1153.112–1153.129 [Reserved] arrangments, utilize criteria or methods of administration the purpose or ef- § 1153.130 General prohibitions against discrimination. fect of which would— (i) Subject qualified handicapped per- (a) No qualified handicapped person sons to discrimination on the basis of shall, on the basis of handicap, be ex- handicap; or cluded from participation in, be denied (ii) Defeat or substantially impair ac- the benefits of, or otherwise be sub- complishment of the objectives of a jected to discrimination under any pro- program or activity with respect to gram or activity conducted by the agency. handicapped persons. (b)(1) The agency, in providing any (4) The agency may not, in deter- aid, benefit, or service, may not, di- mining the site or location of a facil- rectly or through contractual, licens- ity, make selections the purpose or ef- ing, or other arrangements, on the fect of which would— basis of handicap— (i) Exclude handicapped persons (i) Deny a qualified handicapped per- from, deny them the benefits of, or oth- son the opportunity to participate in erwise subject them to discrimination or benefit from the aid, benefit, or under any program or activity con- service; ducted by the agency; or (ii) Afford a qualified handicapped (ii) Defeat or substantially impair person an opportunity to participate in the accomplishment of the objectives or benefit from the aid, benefit, or of a program or activity with respect service that is not equal to that af- to handicapped persons. forded others; (5) The agency, in the selection of (iii) Provide a qualified handicapped procurement contractors, may not use person with an aid, benefit, or service criteria that subject qualified handi- that is not as effective in affording capped persons to discrimination on equal opportunity to obtain the same the basis of handicap. result, to gain the same benefit, or to (6) The agency may not administer a reach the same level of achievement as licensing or certification program in a that provided to others; manner that subjects qualified handi- (iv) Provide different or separate aid, capped persons to discrimination on benefits, or services to handicapped the basis of handicap, nor may the persons or to any class of handicapped agency establish requirements for the persons than is provided to others un- programs or activities of licensees or less such action is necessary to provide certified entities that subject qualified qualified handicapped persons with aid, handicapped persons to discrimination benefits, or services that are as effec- on the basis of handicap. However, the tive as those provided to others; programs or activities of entities that (v) Deny a qualified handicapped per- are licensed or certified by the agency son the opportunity to participate as a are not, themselves, covered by this member of planning or advisory boards; part. or (c) The exclusion of nonhandicapped (vi) Otherwise limit a qualified handicapped person in the enjoyment persons from the benefits of a program of any right, privilege, advantage, or limited by Federal statute or Execu- opportunity enjoyed by others receiv- tive order to handicapped persons or ing the aid, benefit, or service. the exclusion of a specific class of (2) The agency may not deny a quali- handicapped persons from a program fied handicapped person the oppor- limited by Federal statute or Execu- tunity to participate in programs or tive order to a different class of handi- activities that are not separate or dif- capped persons is not prohibited by ferent, despite the existence of permis- this part.

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(d) The agency shall administer proposed action would fundamentally grams and activities in the most inte- alter the program or activity or would grated setting appropriate to the needs result in undue financial and adminis- of qualified handicapped persons. trative burdens, the agency has the burden of proving that compliance with §§ 1153.131–1153.139 [Reserved] § 1153.150(a) would result in such alter- § 1153.140 Employment. ation or burdens. The decision that compliance would result in such alter- No qualified handicapped person ation or burdens must be made by the shall, on the basis of handicap, be sub- agency head or his or her designee jected to discrimination in employ- after considering all agency resources ment under any program or activity available for use in the funding and op- conducted by the agency. The defini- eration of the conducted program or tions, requirements, and procedures of section 501 of the Rehabilitation Act of activity, and must be accompanied by 1973 (29 U.S.C. 791), as established by a written statement of the reasons for the Equal Employment Opportunity reaching that conclusion. If an action Commission in 29 CFR part 1613, shall would result in such an alteration or apply to employment in federally con- such burdens, the agency shall take ducted programs or activities. any other action that would not result in such an alteration or such burdens §§ 1153.141–1153.148 [Reserved] but would nevertheless ensure that handicapped persons receive the bene- § 1153.149 Program accessibility: Dis- fits and services of the program or ac- crimination prohibited. tivity. Except as otherwise provided in (b) Methods—(1) General. The agency § 1153.150, no qualified handicapped per- may comply with the requirements of son shall, because the agency’s facili- this section through such means as re- ties are inaccessible to or unusable by design of equipment, reassignment of handicapped persons, be denied the services to accessible buildings, assign- benefits of, be excluded from participa- ment of aides to beneficiaries, home tion in, or otherwise be subjected to visits, delivery of services at alternate discrimination under any program or accessible sites, alteration of existing activity conducted by the agency. facilities and construction of new fa- § 1153.150 Program accessibility: Exist- cilities, use of accessible rolling stock, ing facilities. or any other methods that result in making its programs or activities read- (a) General. The agency shall operate ily accessible to and usable by handi- each program or activity so that the capped persons. The agency is not re- program or activity, when viewed in its quired to make structural changes in entirety, is readily accessible to and existing facilities where other methods usable by handicapped persons. This paragraph does not— are effective in achieving compliance (1) Necessarily require the agency to with this section. The agency, in mak- make each of its existing facilities ac- ing alterations to existing buildings, cessible to and usable by handicapped shall meet accessibility requirements persons; to the extent compelled by the Archi- (2) In the case of historic preserva- tectural Barriers Act of 1968, as amend- tion programs, require the agency to ed (42 U.S.C. 4151 through 4157), and any take any action that would result in a regulations implementing it. In choos- substantial impairment of significant ing among available methods for meet- historic features of an historic prop- ing the requirements of this section, erty; or the agency shall give priority to those (3) Require the agency to take any methods that offer programs and ac- action that it can demonstrate would tivities to qualified handicapped per- result in a fundamental alteration in sons in the most integrated setting ap- the nature of a program or activity or propriate. in undue financial and administrative (2) Historic preservation programs. In burdens. In those circumstances where meeting the requirements of agency personnel believe that the pro- § 1153.150(a) in historic preservation

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programs, the agency shall give pri- § 1153.151 Program accessibility: New ority to methods that provide physical construction and alterations. access to handicapped persons. In cases Each building or part of a building where a physical alteration to an his- that is constructed or altered by, on toric property is not required because behalf of, or for the use of the agency of § 1153.150(a)(2) or (a)(3), alternative shall be designed, constructed, or al- methods of achieving program accessi- tered so as to be readily accessible to bility include— and usable by handicapped persons. (i) Using audio-visual materials and The definitions, requirements, and devices to depict those portions of an standards of the Architectural Barriers historic property that cannot other- Act (42 U.S.C. 4151 through 4157), as es- wise be made accessible; tablished in 41 CFR 101–19.600 to 101– (ii) Assigning persons to guide handi- 19.607, apply to buildings covered by capped persons into or through por- this section. tions of historic properties that cannot otherwise be made accessible; or §§ 1153.152–1153.159 [Reserved] (iii) Adopting other innovative methods. § 1153.160 Communications. (c) Time period for compliance. The (a) The agency shall take appropriate agency shall comply with the obliga- steps to ensure effective communications established under this section by tion with applicants, participants, per- October 21, 1986, except that where sonnel of other Federal entities, and structural changes in facilities are un- members of the public. dertaken, such changes shall be made (1) The agency shall furnish appro- by August 22, 1989, but in any event as priate auxiliary aids where necessary expeditiously as possible. to afford a handicapped person an equal (d) Transition plan. In the event that opportunity to participate in, and structural changes to facilities will be enjoy the benefits of, a program or ac- undertaken to achieve program acces- tivity conducted by the agency. sibility, the agency shall develop, by (i) In determining what type of auxil- February 23, 1987, a transition plan set- iary aid is necessary, the agency shall ting forth the steps necessary to com- give primary consideration to the re- plete such changes. The agency shall quests of the handicapped person. provide an opportunity to interested (ii) The agency need not provide indi- persons, including handicapped persons vidually prescribed devices, readers for or organizations representing handi- personal use or study, or other devices capped persons, to participate in the of a personal nature. development of the transition plan by (2) Where the agency communicates submitting comments (both oral and with applicants and beneficiaries by written). A copy of the transition plan telephone, telecommunication devices shall be made available for public infor deaf person (TDD’s) or equally ef- spection. The plan shall, at a min- fective telecommunication systems imum— shall be used. (1) Identify physical obstacles in the (b) The agency shall ensure that in- agency’s facilities that limit the acces- terested persons, including persons sibility of its programs or activities to with impaired vision or hearing, can handicapped persons; obtain information as to the existence (2) Describe in detail the methods and location of accessible services, ac- that will be used to make the facilities tivities, and facilities. accessible; (c) The agency shall provide signage (3) Specify the schedule for taking at a primary entrance to each of its in- the steps necessary to achieve compli- accessible facilities, directing users to ance with this section and, if the time a location at which they can obtain in- period of the transition plan is longer formation about accessible facilities. than one year, identify steps that will The international symbol for accessi- be taken during each year of the tran- bility shall be used at each primary en- sition period; and trance of an accessible facility. (4) Indicate the official responsible (d) This section does not require the for implementation of the plan. agency to take any action that it can

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demonstrate would result in a funda- days of the alleged act of discrimina- mental alteration in the nature of a tion. The agency may extend this time program or activity or in undue finan- period for good cause. cial and adminstrative burdens. In (e) If the agency receives a complaint those circumstances where agency per- over which it does not have jurisdic- sonnel believe that the proposed action tion, it shall promptly notify the com- would fundamentally alter the program plainant and shall make reasonable ef- or activity or would result in undue fi- forts to refer the complaint to the ap- nancial and administrative burdens, propriate government entity. the agency has the burden of proving (f) The agency shall notify the Archi- that compliance with § 1153.160 would tectural and Transportation Barriers result in such alteration or burdens. Compliance Board upon receipt of any The decision that compliance would re- complaint alleging that a building or sult in such alteration or burdens must facility that is subject to the Architec- be made by the agency head or his or tural Barriers Act of 1968, as amended her designee after considering all agen- (42 U.S.C. 4151–4157), or section 502 of cy resources available for use in the the Rehabilitation Act of 1973, as funding and operation of the conducted amended (29 U.S.C. 792), is not readily program or activity, and must be accompanied by a written statement of accessible to and usable by handi- the reasons for reaching that conclu- capped persons. sion. If an action required to comply (g) Within 180 days of the receipt of a with this section would result in such complete complaint for which it has ju- an alteration or such burdens, the risdiction, the agency shall notify the agency shall take any other action complainant of the results of the inves- that would not result in such an alter- tigation in a letter containing— ation or such burdens but would never- (1) Findings of fact and conclusions theless ensure that, to the maximum of law; extent possible, handicapped persons (2) A description of a remedy for each receive the benefits and services of the violation found; and program or activity. (3) A notice of the right to appeal. (h) Appeals of the findings of fact and §§ 1153.161–1153.169 [Reserved] conclusions of law or remedies must be filed by the complainant within 90 days § 1153.170 Compliance procedures. of receipt from the agency of the letter (a) Except as provided in paragraph required by § 1153.170(g). The agency (b) of this section, this section applies may extend this time for good cause. to all allegations of discrimination on (i) Timely appeals shall be accepted the basis of handicap in programs or and processed by the head of the agen- activities conducted by the agency. cy. (b) The agency shall process com- (j) The head of the agency shall no- plaints alleging violations of section tify the complainant of the results of 504 with respect to employment accord- the appeal within 60 days of the receipt ing to the procedures established by the Equal Employment Opportunity of the request. If the head of the agen- Commission in 29 CFR part 1613 pursu- cy determines that additional informa- ant to section 501 of the Rehabilitation tion is needed from the complainant, Act of 1973 (29 U.S.C. 791). he or she shall have 60 days from the (c) The Director, Office for Civil date of receipt of the additional infor- Rights, shall be responsible for coordi- mation to make his or her determina- nating implementation of this section. tion on the appeal. Complaints may be sent to the Office of (k) The time limits cited in para- General Counsel, National Endowment graphs (g) and (j) of this section may be for the Arts, 1100 Pennsylvania Avenue extended with the permission of the NW., Washington, DC 20506. Assistant Attorney General. (d) The agency shall accept and in- (l) The agency may delegate its au- vestigate all complete complaints for thority for conducting complaint in- which it has jurisdiction. All complete vestigations to other Federal agencies, complaints must be filed within 180 except that the authority for making

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the final determination may not be amended, is designed to prohibit dis- delegated to another agency. crimination on the basis of age in programs or activities receiving Federal [51 FR 22895, 22896, June 23, 1986, as amended at 51 FR 22895, June 23, 1986] financial assistance. The Act also permits federally assisted programs or ac- §§ 1153.171–1153.999 [Reserved] tivities, and recipients of Federal funds to continue to use certain age distinc- PART 1156—NONDISCRIMINATION tions and factors other than age which ON THE BASIS OF AGE meet the requirements of the Act and the regulations in this part. Subpart A—General [63 FR 6876, Feb. 11, 1998, as amended at 68 FR 51385, Aug. 26, 2003] Sec. 1156.1 Purpose. § 1156.2 Application. 1156.2 Application. 1156.3 Definitions. (a) The Age Discrimination Act of 1156.4 [Reserved] 1975 and the regulations in this part apply to any program or activity re- Subpart B—Standards for Determining ceiving financial assistance from the Discriminatory Practices National Endowment for the Arts. 1156.5 Purpose. (b) The Age Discrimination Act of 1156.6 Rules against age discrimination. 1975 does not apply to: 1156.7 Exceptions to the rules against age (1) Any age distinction contained in discrimination. that part of Federal, State, or local 1156.8 Burden of proof. statute or ordinance adopted by an elected general purpose legislative Subpart C—Responsibilities of Endowment body which: Recipients (i) Provides benefits or assistance to 1156.9 [Reserved] persons based on age; or 1156.10 General responsibilities. (ii) Establishes criteria for participa- 1156.11 Notice to subrecipients. tion in age-related terms; or 1156.12 Self-evaluation. (iii) Describes intended beneficiaries 1156.13 Information requirements. or target groups in age related terms. Subpart D—Investigation, Conciliation, and (2) Any employment practice of any Enforcement Procedures employer, employment agency, labor organization, or any labor-manage- 1156.14 Compliance reviews. ment joint apprenticeship training pro- 1156.15 Complaints. gram, except for any program or activ- 1156.16 Mediation. ity receiving Federal financial assist- 1156.17 Investigation. 1156.18 Prohibition against intimidation or ance for public service employment retaliation. under the Job Training Partnership 1156.19 Compliance procedure. Act (JTPA). 1156.20 Alternate funds disbursal procedure. [63 FR 6876, Feb. 11, 1998, as amended at 68 1156.21 Exhaustion of administrative rem- FR 51385, Aug. 26, 2003] edies. AUTHORITY: 42 U.S.C. 6101 et seq.; 45 CFR § 1156.3 Definitions. part 90. As used in the regulation in this part, SOURCE: 63 FR 6876, Feb. 11, 1998, unless the term: otherwise noted. (a) Act means the Age Discrimination Act of 1975, as amended (Title III of Subpart A—General Pub. L. 94–135). (b) Action means any act, activity, § 1156.1 Purpose. policy, rule, standard, or method of ad- The purpose of this part is to imple- ministration; or the use of any policy, ment the Age Discrimination Act of rule, standard, or method of adminis- 1975 (‘‘Act’’), as amended, and as re- tration. quired by the general age discrimina- (c) Age means how old a person is or tion regulations at 45 CFR part 90. The the number of elapsed years from the Age Discrimination Act of 1975, as date of a person’s birth.

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(d) Age distinction means any action (A) If assistance is extended to such using age or any age-related term. corporation, partnership, private orga- (e) Age-related term means a word or nization, or sole proprietorship as a words which necessarily imply a par- whole; or ticular age or range of ages (for exam- (B) Which is principally engaged in ple, ‘‘children,’’ ‘‘adult,’’ ‘‘older per- the business of providing education, son,’’ but not ‘‘student’’). health care, housing, social services, or (f) Federal financial assistance means parks and recreation; or any grant, entitlement, loan, coopera- (ii) The entire plant or other com- tive agreement, contract (other than a parable, geographically separate facil- procurement contract or a contract of ity to which Federal financial assist- insurance or guaranty), or any other ance is extended, in the case of any arrangement by which the agency pro- other corporation, partnership, private vides or otherwise makes available as- organization, or sole proprietorship; or sistance in the form of: (4) Any other entity which is estab- (1) Funds; lished by two or more of the entities described in paragraph (h)(1), (2), or (3) (2) Services of Federal personnel; or of this section. (3) Real and personal property includ- (i) Recipient means any State or its ing: political subdivision, any instrumen- (i) Transfers or leases of property for tality of a State or its political sub- less than fair market value or for re- division, any public or private agency, duced consideration; and institution, organization, or other enti- (ii) Proceeds from a subsequent ty, or any person to which Federal fi- transfer or lease of property if the Fed- nancial assistance is extended, directly eral share of its fair market value is or through another recipient. Recipient not returned to the Federal govern- includes any successor, assignee, or ment. transferee, but excludes the ultimate (g) Normal operation means the oper- beneficiary of the assistance. ation of a program or activity without (j) Statutory objective means any pur- significant changes that would impair pose of a program or activity expressly its ability to meet its objectives. stated in any Federal statute, state (h) Program or activity means all of statute, or local statute or ordinance the operations of any entity described adopted by an elected, general purpose in paragraphs (h)(1) through (4) of this legislative body. section, any part of which is extended (k) Sub-recipient means any of the en- Federal financial assistance: tities in the definition of recipient to (1)(i) A department, agency, special which a recipient extends or passes on purpose district, or other instrumen- Federal financial assistance and has all tality of a State or of a local govern- the duties of a recipient in the regula- ment; or tions in this part. (ii) The entity of such State or local (l) Endowment means the National government that distributes such as- Endowment for the Arts. sistance and each such department or (m) Chairperson means the Chair- agency (and each other State or local person of the National Endowment for government entity) to which the as- the Arts. sistance is extended, in the case of as- (n) Secretary means the Secretary of sistance to a State or local govern- the Department of Health and Human ment; Services. (2)(i) A college, university, or other (o) United States means the fifty postsecondary institution, or a public States, the District of Columbia, Puer- system of higher education; or to Rico, the Virgin Islands, American (ii) A local educational agency (as de- Somoa, Guam, Wake Island, the Canal fined in 20 U.S.C. 7801), system of voca- Zone, the Federated States of Micro- tional education, or other school sys- nesia and the Republic of Palau, the tem; Northern Marianas, and the territories (3)(i) An entire corporation, partner- and possessions of the United States. ship, or other private organization, or [63 FR 6876, Feb. 11, 1998, as amended at 68 an entire sole proprietorship— FR 51385, Aug. 26, 2003]

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§ 1156.4 [Reserved] (1) Age is used as a measure or ap- proximation of one or more other char- Subpart B—Standards for Deter- acteristics; and (2) The other characteristic(s) must mining Discriminatory Prac- be measured or approximated in order tices for the normal operation of the program or activity to continue, or to § 1156.5 Purpose. achieve any statutory objective of the The purpose of this subpart is to set program or activity; and forth the prohibitions against age dis- (3) The other characteristic(s) can be crimination and the exceptions to reasonably measured or approximated those prohibitions. by the use of age; and (4) The other characteristic(s) are § 1156.6 Rules against age discrimina- impractical to measure directly on an tion. individual basis. The rules stated in this section are (b) Reasonable factors other than age. limited by the exceptions contained in A recipient is permitted to take an ac- § 1156.7 (b) and (c). tion otherwise prohibited by § 1156.6 which is based on a factor other than (a) General rule. No person in the age, even though that action may have United States shall, on the basis of age, a disproportionate effect on persons of be excluded from participation in, be different ages. An action may be based denied the benefits of, or be subjected on a factor other than age only if the to discrimination under any program factor bears a direct and substantial or activity receiving Federal financial relationship to the normal operation of assistance. the program or activity or to the (b) Specific rules. A recipient may not, achievement of a statutory objective. in any program or activity receiving (c) Remedial and affirmative action by Federal financial assistance, directly recipients. If a recipient operating a or through contractual, licensing, or program or activity which serves the other arrangements use age distinc- elderly or children in addition to per- tions or take any other actions which sons of other ages, provides special have the effect, on the basis of age, of: benefits to the elderly or to children (1) Excluding individuals from, deny- the provision of those benefits shall be ing them the benefits of, or subjecting presumed to be voluntary affirmative them to discrimination under a pro- action provided that it does not have gram or activity receiving Federal fi- the effect of excluding otherwise eligi- nancial assistance; or ble persons from participation in the (2) Denying or limiting individuals in program or activity. their opportunity to participate in any [63 FR 6876, Feb. 11, 1998, as amended at 68 program or activity receiving Federal FR 51385, Aug. 26, 2003] financial assistance. (c) The specific forms of age discrimi- § 1156.8 Burden of proof. nation listed in paragraph (b) of this The recipient of Federal financial as- section do not necessarily constitute a sistance bears the burden of proving complete list of discriminatory ac- that an age distinction or other action tions. falls within the exceptions outlined in § 1156.7. § 1156.7 Exceptions to the rules against age discrimination. Subpart C—Responsibilities of (a) Normal operation or statutory objec- Endowment Recipients tive of any program or activity. A recipient is permitted to take an action oth- § 1156.9 [Reserved] erwise prohibited by § 1156.6 if the action reasonably takes into account age § 1156.10 General responsibilities. as a factor necessary to the normal op- A recipient has primary responsi- eration or the achievement of any stat- bility to ensure that its programs or utory objective of a program or activ- activities are in compliance with the ity, if: Age Discrimination Act, to take steps

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to eliminate violations of the Act, and Subpart D—Investigation, Concil- to provide notice to beneficiaries of its iation, and Enforcement Pro- programs and activities concerning cedures protection against discrimination provided by the Act and the regulations in § 1156.14 Compliance reviews. this part. A recipient also has responsi- The Endowment may conduct com- bility to maintain records, provide in- pliance reviews, pre-award reviews and formation, and to afford access to its other similar procedures in order to in- records to the Endowment to the ex- vestigate and correct violations of the tent required to determine whether it Act and regulations. The Endowment is in compliance with the Act. may conduct these reviews in the ab- [63 FR 6876, Feb. 11, 1998, as amended at 68 sence of a compliant against the recipi- FR 51385, Aug. 26, 2003] ent. In the event a compliance review or pre-award review indicates a viola- § 1156.11 Notice to subrecipients. tion of the regulations in this part, the Where a recipient passes on Federal Endowment will attempt to achieve financial assistance from the Endow- voluntary compliance with the Act. If ment to subrecipients, the recipient voluntary compliance cannot be shall provide the subrecipients with achieved, enforcement efforts will pro- written notice regarding the subrecipi- ceed as described in § 1156.19. ent’s obligations under the Act and the regulations in this part. § 1156.15 Complaints. (a) Any person, individually or as a § 1156.12 Self-evaluation. member of a class or on behalf of oth- (a) Each recipient employing the ers, may file a complaint with the En- equivalent of 15 or more full time em- dowment, alleging discrimination pro- ployees may be required to complete a hibited by the Act and the regulations written self-evaluation, in a manner in this part based on an action occur- specified by the responsible Endow- ring on or after July 1, 1979. A comment official during the course of an plainant shall file a complaint within investigation, of any age distinction 180 days from the date that the com- imposed in its program or activity re- plainant first had knowledge of the al- ceiving Federal financial assistance leged act of discrimination. However, for good cause, the Endowment may from the Endowment to assess the re- extend this time limit. The Endowment cipient’s compliance with the Act. will consider the date a complaint is (b) Each recipient shall take correc- filed to be the date upon which the tive and remedial action whenever a complaint is sufficient to be processed. self-evaluation indicates a violation of (b) Complaints must include a writ- the Act. ten statement identifying the parties (c) Each recipient shall make the involved, describing the alleged viola- self-evaluation available on request to tion, and stating the date on which the the Endowment and to the public for a complainant first had knowledge of the period of three years following its com- alleged violation. Complaints must be pletion. signed by the complainant. The Endow- ment will return any complaint that § 1156.13 Information requirements. does not contain the necessary infor- Each recipient shall: mation, that is not signed by the com- (a) Make available to the Endow- plainant, or that is not within the En- ment, upon request, information nec- dowment’s jurisdiction for any other essary to determine whether the recipi- reason. The Endowment will provide an ent is complying with the regulations explanation for all such returned com- in this part. plaints. (b) Permit reasonable access by the (c) The Endowment will attempt to Endowment to the books, accounts and facilitate the filing of complaints other recipient facilities and sources of wherever possible, including taking the information to the extent necessary to following measures: determine whether the recipient is in (1) Widely disseminating information compliance with the Act. regarding the obligations of recipients

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under the Act and the regulations in (e) Not more than 60 days after the this part. Endowment receives the complaint, (2) Notifying the complainant and the mediator shall return a still unre- the recipient of their rights and obliga- solved complaint to the Endowment for tions under the complaint procedure, initial investigation. The mediator including the right to have a represent- may return a complaint at any time ative at all stages of the complaint before the end of the 60-day period if it procedure. appears that the complaint cannot be (3) Notifying the complainant and resolved through mediation. The medi- the recipient (or their representatives) ator may extend this 60-day period, of their right to contact the Endow- provided the Endowment concurs, for ment for information and assistance not more than 30 days, if the mediator regarding the complaint resolution determines that resolution is likely to process. occur within such period.

§ 1156.16 Mediation. § 1156.17 Investigation. (a) Referral of complaints for mediation. (a) Informal investigation. (1) The En- The Endowment will promptly refer all dowment will investigate complaints complaints to the agency designated by that are unresolved after mediation or the Secretary of HHS to manage the are reopened because of a violation of a mediation process that: mediation agreement. (1) Fall within the jurisdiction of the regulations in this part; and (2) As part of the initial investiga- (2) Contain all information necessary tion, the Endowment will use informal for further processing. fact-finding methods, including joint (b) Both the complainant and the re- or separate discussions with the com- cipient shall participate in the medi- plainant and the recipient to establish ation process to the extent necessary the facts, and, if possible, resolve the to reach an agreement or make an in- complaint to the mutual satisfaction of formal judgment that an agreement is the parties. The Endowment may seek not possible. There must be at least the assistance of any involved State one meeting with the mediator before agency. the Endowment will accept a judgment (3) The Endowment will put any that an agreement is not possible. agreement in writing and have it However, the recipient and the com- signed by the parties and an authorized plainant need not meet with the medi- official at the Endowment. ator at the same time. (4) The settlement shall not affect (c) If the complainant and recipient the operation of any other enforcement reach a mutually satisfactory resolu- effort of the Endowment, including tion of the complaint during the medi- compliance reviews and investigation ation period, they shall reduce the of other complaints which may involve agreement to wiring. The mediator the recipient. shall send a copy of the settlement to (5) The settlement is not a finding of the Endowment. No further action discrimination against a recipient. shall be taken by the Endowment based (b) Formal investigation, conciliation, on that complaint unless it appears and hearing. If the Endowment cannot that the complainant or the recipient resolve the complaint during the early has failed to comply with the agree- stages of the investigation, it shall: ment. (1) Complete the investigation of the (d) The mediator shall protect the complaint. confidentiality of all information ob- (2) Attempt to achieve voluntary tained in the course of the mediation compliance satisfactory to the Endow- process. No mediator shall testify in ment, if the investigation indicates a any adjudicative proceeding, produce violation. any document, or otherwise disclose any information obtained in the course (3) Arrange for enforcement as de- of the mediation process without prior scribed in § 1156.19, if necessary. approval of the head of the mediation [63 FR 6876, Feb. 11, 1998, as amended at 68 agency. FR 51385, Aug. 26, 2003]

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§ 1156.18 Prohibition against intimida- (1) The Chairperson has advised the tion or retaliation. recipient of its failure to comply with A recipient may not engage in acts of the Act and the regulations in this part intimidation or retaliation against any and has determined that voluntary person who: compliance cannot be obtained. (a) Attempts to assert a right pro- (2) Thirty days have elapsed after the tected by the Act; or Chairperson has sent a written report (b) Cooperates in any mediation, in- of the circumstances and grounds of vestigation, hearing, or other part of the action to the committees of the the Endowment’s investigation, concil- Congress having legislative jurisdic- iation and enforcement process. tion over the program or activity involved. The Chairperson will file a re- § 1156.19 Compliance procedure. port whenever any action is taken (a) The Endowment may enforce the under paragraph (a) of this section. Act and the regulations in this part (d) The Chairperson also may defer through: granting new Federal financial assist- (1) Termination of a recipient’s Fed- ance from the Endowment to a recipi- eral financial assistance from the En- ent when a hearing under paragraph dowment under the program or activ- (a)(1) of this section is initiated. ity involved where the recipient has (1) New Federal financial assistance violated the Act and the regulations in from the Endowment includes all as- this part. The determination of the re- sistance for which the Endowment recipient’s violation may be made only quires an application or approval, in- after a recipient has had an oppor- cluding renewal or continuation of ex- tunity for a hearing on the record be- isting activities, or authorization of fore an administrative law judge. new activities, during the deferral pe- Therefore, a case which is settled in riod. New Federal financial assistance mediation, or prior to a hearing, will from the Endowment does not include not involve termination of a recipient’s assistance approved prior to the begin- Federal financial assistance from the ning of a termination hearing under Endowment unless it is reopened be- paragraph (a)(1) of this section or in- cause of a violation of the agreement. creases in funding as a result of (2) Any other means authorized by changed computation of formula law including, but not limited to: awards. (i) Referral to the Department of Jus- (2) The Endowment will not begin a tice for proceedings to enforce any deferral until the recipient has re- rights of the United States or obliga- ceived a notice of an opportunity for a tions of the recipient created by the hearing under paragraph (a)(1) of this Act or the regulations in this part. section. The Endowment will not con- (ii) Use of any requirement of or re- tinue a deferral for more than 60 days ferral to any Federal, State, or local unless a hearing has begun within that government agency that will have the time or the time for beginning the effect of correcting a violation of the hearing has been extended by mutual Act or the regulations in this part. consent of the recipient and the Chair- (b) The Endowment will limit any person. The Endowment will not con- termination under paragraph (a)(1) of tinue a deferral for more than 30 days this section to the particular recipient after the close of the hearing, unless and particular program or activity or the hearing results in a finding against portion thereof that the Endowment the recipient. If the hearing results in finds in violation of the regulations in a finding against the recipient, the En- this part. The Endowment will not base dowment must terminate funds. any part of a termination on a finding [63 FR 6876, Feb. 11, 1998, as amended at 68 with respect to any program or activ- FR 51385, Aug. 26, 2003] ity of the recipient which does not receive Federal financial assistance from § 1156.20 Alternate funds disbursal the Endowment. procedure. (c) The Endowment will not take ac- (a) When the endowment withholds tion under paragraph (a) of this section funds from a recipient under the regu- until: lations in this part, the Chairperson

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may disburse the withheld funds di- requested; the court in which the com- rectly to an alternate recipient other- plainant is bringing the action; and wise eligible for Endowment support: whether or not the attorney’s fees are any public or nonprofit private organi- demanded in the event the complainant zation or agency, or State or political prevails; and subdivision of the State. (v) That the complainant may not (b) The Chairperson will require any bring an action if the same alleged vio- alternate recipient to demonstrate: lation of the Act by the same recipient (1) The ability to comply with the is the subject of a pending action in regulations in this part; and any court of the United States. (2) The ability to achieve the goals of the Federal statute authorizing the Federal financial assistance. PART 1157 [RESERVED] [63 FR 6876, Feb. 11, 1998, as amended at 68 FR 51385, Aug. 26, 2003] PART 1158—NEW RESTRICTIONS ON LOBBYING § 1156.21 Exhaustion of administrative remedies. Subpart A—General (a) A complainant may file a civil action following the exhaustion of admin- Sec. istrative remedies under the Act. Ad- 1158.100 Conditions on use of funds. ministrative remedies are exhausted if: 1158.105 Definitions. (1) 180 days have elapsed since the 1158.110 Certification and disclosure. complainant filed the complaint and the Endowment has made no finding Subpart B—Activities by Own Employees with regard to the complaint; or 1158.200 Agency and legislative liaison. (2) The Endowment issues a finding 1158.205 Professional and technical services. in favor of the recipient. 1158.210 Reporting. (b) If the Endowment fails to make a finding within 180 days or issues a find- Subpart C—Activities by Other Than Own ing in favor of the recipient, the En- Employees dowment will: (1) Promptly advise the complainant 1158.300 Professional and technical services. if either of the conditions of paragraph (a) of this section has been met; Subpart D—Penalties and Enforcement (2) Advise the complainant of his or 1158.400 Penalties. her right to bring a civil action for in- 1158.405 Penalty procedures. junctive relief that will effect the pur- 1158.410 Enforcement. pose of the Act; (3) Inform the complainant: Subpart E—Exemptions (i) That the complainant may bring a civil action only in the United States 1158.500 Secretary of Defense. district court for the district in which the recipient is located or transacts Subpart F—Agency Reports business; 1158.600 Semi-annual compilation. (ii) That a complainant prevailing in 1158.605 Inspector General report. a civil action has the right to be APPENDIX A TO PART 1158—CERTIFICATION RE- awarded the costs of the action, includ- GARDING LOBBYING ing reasonable attorney’s fees, but that APPENDIX B TO PART 1158—DISCLOSURE FORM the complainant must demand these TO REPORT LOBBYING costs in the complaint; (iii) That before commencing the ac- AUTHORITY: 20 U.S.C. 959; 28 U.S.C. 2461; 31 tion the complainant shall give 30 days U.S.C. 1352. notice by registered mail to the Chair- SOURCE: 55 FR 6737, 6755, Feb. 26, 1990, un- person of the Endowment, the Sec- less otherwise noted. retary, the Attorney General of the CROSS REFERENCE: See also Office of Man- United States, and the recipient; agement and Budget notice published at 54 (iv) That the notice must state: the FR 52306, December 20, 1989. alleged violation of the Act; the relief

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Subpart A—General that agency a disclosure form, set forth in appendix B, if that person has made § 1158.100 Conditions on use of funds. or has agreed to make any payment to (a) No appropriated funds may be ex- influence or attempt to influence an of- pended by the recipient of a Federal ficer or employee of any agency, a contract, grant, loan, or cooperative Member of Congress, an officer or em- ageement to pay any person for influ- ployee of Congress, or an employee of a encing or attempting to influence an Member of Congress in connection with officer or employee of any agency, a that loan insurance or guarantee. Member of Congress, an officer or employee of Congress, or an employee of a § 1158.105 Definitions. Member of Congress in connection with For purposes of this part: any of the following covered Federal (a) Agency, as defined in 5 U.S.C. actions: the awarding of any Federal 552(f), includes Federal executive de- contract, the making of any Federal partments and agencies as well as inde- grant, the making of any Federal loan, pendent regulatory commissions and the entering into of any cooperative Government corporations, as defined in agreement, and the extension, continu- 31 U.S.C. 9101(1). ation, renewal, amendment, or modi- (b) Covered Federal action means any fication of any Federal contract, grant, of the following Federal actions: loan, or cooperative agreement. (1) The awarding of any Federal con- (b) Each person who requests or re- tract; ceives from an agency a Federal con- (2) The making of any Federal grant; tract, grant, loan, or cooperative (3) The making of any Federal loan; agreement shall file with that agency a (4) The entering into of any coopera- certification, set forth in appendix A, tive agreement; and, that the person has not made, and will (5) The extension, continuation, re- not make, any payment prohibited by newal, amendment, or modification of paragraph (a) of this section. (c) Each person who requests or re- any Federal contract, grant, loan, or ceives from an agency a Federal con- cooperative agreement. tract, grant, loan, or a cooperative Covered Federal action does not in- agreement shall file with that agency a clude receiving from an agency a com- disclosure form, set forth in appendix mitment providing for the United B, if such person has made or has States to insure or guarantee a loan. agreed to make any payment using Loan guarantees and loan insurance nonappropriated funds (to include prof- are addressed independently within its from any covered Federal action), this part. which would be prohibited under para- (c) Federal contract means an acquisi- graph (a) of this section if paid for with tion contract awarded by an agency, appropriated funds. including those subject to the Federal (d) Each person who requests or re- Acquisition Regulation (FAR), and any ceives from an agency a commitment other acquisition contract for real or providing for the United States to in- personal property or services not sub- sure or guarantee a loan shall file with ject to the FAR. that agency a statement, set forth in (d) Federal cooperative agreement appendix A, whether that person has means a cooperative agreement en- made or has agreed to make any pay- tered into by an agency. ment to influence or attempt to influ- (e) Federal grant means an award of ence an officer or employee of any financial assistance in the form of agency, a Member of Congress, an offi- money, or property in lieu of money, cer or employee of Congress, or an em- by the Federal Government or a direct ployee of a Member of Congress in con- appropriation made by law to any per- nection with that loan insurance or son. The term does not include tech- guarantee. nical assistance which provides serv- (e) Each person who requests or re- ices instead of money, or other assist- ceives from an agency a commitment ance in the form of revenue sharing, providing for the United States to in- loans, loan guarantees, loan insurance, sure or guarantee a loan shall file with interest subsidies, insurance, or direct

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United States cash assistance to an in- zation, or any other Indian organiza- dividual. tion with respect to expenditures spe- (f) Federal loan means a loan made by cifically permitted by other Federal an agency. The term does not include law. loan guarantee or loan insurance. (m) Reasonable compensation means, (g) Indian tribe and tribal organization with respect to a regularly employed have the meaning provided in section 4 officer or employee of any person, com- of the Indian Self-Determination and pensation that is consistent with the Education Assistance Act (25 U.S.C. normal compensation for such officer 450B). Alaskan Natives are included or employee for work that is not fur- under the definitions of Indian tribes in nished to, not funded by, or not fur- that Act. nished in cooperation with the Federal (h) Influencing or attempting to influ- Government. ence means making, with the intent to (n) Reasonable payment means, with influence, any communication to or ap- respect to perfessional and other tech- pearance before an officer or employee nical services, a payment in an amount or any agency, a Member of Congress, that is consistent with the amount nor- an officer or employee of Congress, or mally paid for such services in the pri- an employee of a Member of Congress vate sector. in connection with any covered Federal (o) Recipient includes all contractors, action. subcontractors at any tier, and sub- (i) Loan guarantee and loan insurance grantees at any tier of the recipient of means an agency’s guarantee or insur- funds received in connection with a ance of a loan made by a person. Federal contract, grant, loan, or coop- (j) Local government means a unit of erative agreement. The term excludes government in a State and, if char- an Indian tribe, tribal organization, or tered, established, or otherwise recog- any other Indian organization with re- nized by a State for the performance of spect to expenditures specifically per- a governmental duty, including a local mitted by other Federal law. public authority, a special district, an (p) Regularly employed means, with intrastate district, a council of govern- respect to an officer or employee of a ments, a sponsor group representative person requesting or receiving a Fed- organization, and any other instrumen- eral contract, grant, loan, or coopera- tality of a local government. tive agreement or a commitment pro- (k) Officer or employee of an agency in- viding for the United States to insure cludes the following individuals who or guarantee a loan, an officer or em- are employed by an agency: ployee who is employed by such person (1) An individual who is appointed to for at least 130 working days within a position in the Government under one year immediately preceding the title 5, U.S. Code, including a position date of the submission that initiates under a temporary appointment; agency consideration of such person for (2) A member of the uniformed serv- receipt of such contract, grant, loan, ices as defined in section 101(3), title 37, cooperative agreement, loan insurance U.S. Code; commitment, or loan guarantee com- (3) A special Government employee mitment. An officer or employee who is as defined in section 202, title 18, U.S. employed by such person for less than Code; and, 130 working days within one year im- (4) An individual who is a member of mediately preceding the date of the a Federal advisory committee, as de- submission that initiates agency confined by the Federal Advisory Com- sideration of such person shall be con- mittee Act, title 5, U.S. Code appendix sidered to be regularly employed as 2. soon as he or she is employed by such (l) Person means an individual, cor- person for 130 working days. poration, company, association, au- (q) State means a State of the United thority, firm, partnership, society, States, the District of Columbia, the State, and local government, regard- Commonwealth of Puerto Rico, a terri- less of whether such entity is operated tory or possession of the United States, for profit or not for profit. This term an agency or instrumentality of a excludes an Indian tribe, tribal organi- State, and a multi-State, regional, or

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interstate entity having governmental (2) A subgrant, contract, or sub- duties and powers. contract exceeding $100,000 at any tier under a Federal grant; § 1158.110 Certification and disclosure. (3) A contract or subcontract exceed- (a) Each person shall file a certifi- ing $100,000 at any tier under a Federal cation, and a disclosure form, if re- loan exceeding $150,000; or, quired, with each submission that ini- (4) A contract or subcontract exceed- tiates agency consideration of such ing $100,000 at any tier under a Federal person for: cooperative agreement, (1) Award of a Federal contract, shall file a certification, and a disclo- grant, or cooperative agreement ex- sure form, if required, to the next tier ceeding $100,000; or above. (2) An award of a Federal loan or a commitment providing for the United (e) All disclosure forms, but not cer- States to insure or guarantee a loan tifications, shall be forwarded from exceeding $150,000. tier to tier until received by the person (b) Each person shall file a certifi- referred to in paragraph (a) or (b) of cation, and a disclosure form, if re- this section. That person shall forward quired, upon receipt by such person of: all disclosure forms to the agency. (1) A Federal contract, grant, or co- (f) Any certification or disclosure operative agreement exceeding $100,000; form filed under paragraph (e) of this or section shall be treated as a material (2) A Federal loan or a commitment representation of fact upon which all providing for the United States to in- receiving tiers shall rely. All liability sure or guarantee a loan exceeding arising from an erroneous representa- $150,000, tion shall be borne solely by the tier unless such person previously filed a filing that representation and shall not certification, and a disclosure form, if be shared by any tier to which the er- required, under paragraph (a) of this roneous representation is forwarded. section. Submitting an erroneous certification (c) Each person shall file a disclosure or disclosure constitutes a failure to form at the end of each calendar quar- file the required certification or disclo- ter in which there occurs any event sure, respectively. If a person fails to that requires disclosure or that materi- file a required certification or disclo- ally affects the accuracy of the infor- sure, the United States may pursue all mation contained in any disclosure available remedies, including those au- form previously filed by such person thorized by section 1352, title 31, U.S. under paragraph (a) or (b) of this sec- Code. tion. An event that materially affects (g) For awards and commitments in the accuracy of the information reprocess prior to December 23, 1989, but ported includes: not made before that date, certifi- (1) A cumulative increase of $25,000 or cations shall be required at award or more in the amount paid or expected to commitment, covering activities oc- be paid for influencing or attempting curring between December 23, 1989, and to influence a covered Federal action; or the date of award or commitment. (2) A change in the person(s) or indi- However, for awards and commitments vidual(s) influencing or attempting to in process prior to the December 23, influence a covered Federal action; or, 1989 effective date of these provisions, (3) A change in the officer(s), em- but not made before December 23, 1989, ployee(s), or Member(s) contacted to disclosure forms shall not be required influence or attempt to influence a at time of award or commitment but covered Federal action. shall be filed within 30 days. (d) Any person who requests or re- (h) No reporting is required for an ac- ceives from a person referred to in tivity paid for with appropriated funds paragraph (a) or (b) of this section: if that activity is allowable under ei- (1) A subcontract exceeding $100,000 ther subpart B or C. at any tier under a Federal contract;

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Subpart B—Activities by Own § 1158.205 Professional and technical Employees services. (a) The prohibition on the use of ap- § 1158.200 Agency and legislative liai- propriated funds, in § 1158.100 (a), does son. not apply in the case of a payment of (a) The prohibition on the use of ap- reasonable compensation made to an propriated funds, in § 1158.100 (a), does officer or employee of a person request- not apply in the case of a payment of ing or receiving a Federal contract, reasonable compensation made to an grant, loan, or cooperative agreement officer or employee of a person request- or an extension, continuation, renewal, ing or receiving a Federal contract, amendment, or modification of a Fed- grant, loan, or cooperative agreement eral contract, grant, loan, or coopera- if the payment is for agency and legis- tive agreement if payment is for pro- lative liaison activities not directly re- fessional or technical services rendered lated to a covered Federal action. directly in the preparation, submis- (b) For purposes of paragraph (a) of sion, or negotiation of any bid, pro- this section, providing any information posal, or application for that Federal specifically requested by an agency or contract, grant, loan, or cooperative Congress is allowable at any time. agreement or for meeting requirements (c) For purposes of paragraph (a) of imposed by or pursuant to law as a this section, the following agency and condition for receiving that Federal legislative liaison activities are allow- contract, grant, loan, or cooperative able at any time only where they are agreement. not related to a specific solicitation for any covered Federal action: (b) For purposes of paragraph (a) of (1) Discussing with an agency (in- this section, professional and technical cluding individual demonstrations) the services shall be limited to advice and qualities and characteristics of the per- analysis directly applying any profes- son’s products or services, conditions sional or technical discipline. For ex- or terms of sale, and service capabili- ample, drafting of a legal document ac- ties; and, companying a bid or proposal by a law- (2) Technical discussions and other yer is allowable. Similarly, technical activities regarding the application or advice provided by an engineer on the adaptation of the person’s products or performance or operational capability services for an agency’s use. of a piece of equipment rendered di- (d) For purposes of paragraph (a) of rectly in the negotiation of a contract this section, the following agencies and is allowable. However, communications legislative liaison activities are allow- with the intent to influence made by a able only where they are prior to for- professional (such as a licensed lawyer) mal solicitation of any covered Federal or a technical person (such as a li- action: censed accountant) are not allowable (1) Providing any information not under this section unless they provide specifically requested but necessary for advice and analysis directly applying an agency to make an informed deci- their professional or technical exper- sion about initiation of a covered Fed- tise and unless the advice or analysis is eral action; rendered directly and solely in the (2) Technical discussions regarding preparation, submission or negotiation the preparation of an unsolicited proof a covered Federal action. Thus, for posal prior to its official submission; example, communications with the in- and, tent to influence made by a lawyer (3) Capability presentations by per- that do not provide legal advice or sons seeking awards from an agency analysis directly and solely related to pursuant to the provisions of the Small the legal aspects of his or her client’s Business Act, as amended by Pub. L. proposal, but generally advocate one 95–507 and other subsequent amend- proposal over another are not allow- ments. able under this section because the (e) Only those activities expressly au- lawyer is not providing professional thorized by this section are allowable legal services. Similarly, communica- under this section. tions with the intent to influence made

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by an engineer providing an engineer- analysis directly applying any profes- ing analysis prior to the preparation or sional or technical discipline. For ex- submission of a bid or proposal are not ample, drafting or a legal document ac- allowable under this section since the companying a bid or proposal by a law- engineer is providing technical services yer is allowable. Similarly, technical but not directly in the preparation, advice provided by an engineer on the submission or negotiation of a covered performance or operational capability Federal action. of a piece of equipment rendered di- (c) Requirements imposed by or pur- rectly in the negotiation of a contract suant to law as a condition for receiv- is allowable. However, communications ing a covered Federal award include those required by law r regulation, or with the intent to influence made by a reasonably expected to be required by professional (such as a licensed lawyer) law or regulation, and any other re- or a technical person (such as a li- quirements in the actual award docu- censed accountant) are not allowable ments. under this section unless they provide (d) Only those services expressly au- advice and analysis directly applying thorized by this section are allowable their professional or technical exper- under this section. tise and unless the advice or analysis is rendered directly and solely in the § 1158.210 Reporting. preparation, submission or negotiation No reporting is required with respect of a covered Federal action. Thus, for to payments of reasonable compensa- example, communications with the in- tion made to regularly employed offi- tent to influence made by a lawyer cers or employees of a person. that do not provide legal advice or analysis directly and solely related to Subpart C—Activities by Other the legal aspects of his or her client’s Than Own Employees proposal, but generally advocate one proposal over another are not allow- § 1158.300 Professional and technical able under this section because the services. lawyer is not providing professional (a) The prohibition on the use of ap- legal services. Similarly, communica- propriated funds, in § 1158.100 (a), does tions with the intent to influence made not apply in the case of any reasonable by an engineer providing an engineer- payment to a person, other than an of- ing analysis prior to the preparation or ficer or employee of a person request- submission of a bid or proposal are not ing or receiving a covered Federal ac- allowable under this section since the tion, if the payment is for professional engineer is providing technical services or technical services rendered directly in the preparation, submission, or ne- but not directly in the preparation, gotiation of any bid, proposal, or appli- submission or negotiation of a covered cation for that Federal contract, grant, Federal action. loan, or cooperative agreement or for (d) Requirements imposed by or pur- meeting requirements imposed by or suant to law as a condition for receiv- pursuant to law as a condition for re- ing a covered Federal award include ceiving that Federal contract, grant, those required by law or regulation, or loan, or cooperative agreement. reasonably expected to be required by (b) The reporting requirements in law or regulation, and any other re- § 1158.110 (a) and (b) regarding filing a quirements in the actual award docu- disclosure form by each person, if re- ments. quired, shall not apply with respect to (e) Persons other than officers or em- professional or technical services ren- ployees of a person requesting or re- dered directly in the preparation, sub- ceiving a covered Federal action in- mission, or negotiation of any commit- clude consultants and trade associa- ment providing for the United States tions. to insure or guarantee a loan. (f) Only those services expressly au- (c) For purposes of paragraph (a) of thorized by this section are allowable this section, professional and technical services shall be limited to advice and under this section.

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Subpart D—Penalties and § 1158.405 Penalty procedures. Enforcement Agencies shall impose and collect civil penalties pursuant to the provi- § 1158.400 Penalties. sions of the Program Fraud and Civil (a) Any person who makes an expend- Remedies Act, 31 U.S.C. sections 3803 iture prohibited herein shall be subject (except subsection (c)), 3804, 3805, 3806, to a civil penalty of not less than 3807, 3808, and 3812, insofar as these pro- $19,639 and not more than $196,387 for visions are not inconsistent with the each such expenditure. requirements herein. (b) Any person who fails to file or § 1158.410 Enforcement. amend the disclosure form (see appendix B of this part) to be filed or amend- The head of each agency shall take ed if required herein, shall be subject such actions as are necessary to ensure to a civil penalty of not less than that the provisions herein are vigor- $19,639 and not more than $196,387 for ously implemented and enforced in each such failure. that agency. (c) A filing or amended filing on or after the date on which an administra- Subpart E—Exemptions tive action for the imposition of a civil § 1158.500 Secretary of Defense. penalty is commenced does not prevent the imposition of such civil penalty for (a) The Secretary of Defense may ex- a failure occurring before that date. An empt, on a case-by-case basis, a cov- administrative action is commenced ered Federal action from the prohibi- with respect to a failure when an inves- tion whenever the Secretary deter- tigating official determines in writing mines, in writing, that such an exemp- to commence an investigation of an al- tion is in the national interest. The legation of such failure. Secretary shall transmit a copy of each such written exemption to Congress (d) In determining whether to impose immediately after making such a de- a civil penalty, and the amount of any termination. such penalty, by reason of a violation (b) The Department of Defense may by any person, the agency shall con- issue supplemental regulations to im- sider the nature, circumstances, ex- plement paragraph (a) of this section. tent, and gravity of the violation, the effect on the ability of such person to continue in business, any prior viola- Subpart F—Agency Reports tions by such person, the degree of cul- § 1158.600 Semi-annual compilation. pability of such person, the ability of the person to pay the penalty, and such (a) The head of each agency shall col- other matters as may be appropriate. lect and compile the disclosure reports (e) First offenders under paragraph (see appendix B) and, on May 31 and (a) or (b) of this section shall be subject November 30 of each year, submit to to a civil penalty of $19,639, absent ag- the Secretary of the Senate and the Clerk of the House of Representatives a gravating circumstances. Second and report containing a compilation of the subsequent offenses by persons shall be information contained in the disclo- subject to an appropriate civil penalty sure reports received during the six- between $19,639 and $196,387, as deter- month period ending on March 31 or mined by the agency head or his or her September 30, respectively, of that designee. year. (f) An imposition of a civil penalty (b) The report, including the com- under this section does not prevent the pilation, shall be available for public United States from seeking any other inspection 30 days after receipt of the remedy that may apply to the same report by the Secretary and the Clerk. conduct that is the basis for the impo- (c) Information that involves intel- sition of such civil penalty. ligence matters shall be reported only [55 FR 6737, 6755, Feb. 26, 1990, as amended at to the Select Committee on Intel- 82 FR 27434, June 15, 2017; 83 FR 2073, Jan. 16, ligence of the Senate, the Permanent 2018] Select Committee on Intelligence of

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the House of Representatives, and the may be necessary to strengthen or im- Committees on Appropriations of the prove the requirements. Senate and the House of Representa- (b) In the case of an agency that does tives in accordance with procedures not have an Inspector General, the agreed to by such committees. Such in- agency official comparable to an In- formation shall not be available for spector General shall prepare and sub- public inspection. mit the annual report, or, if there is no (d) Information that is classified such comparable official, the head of under Executive Order 12356 or any suc- the agency shall prepare and submit cessor order shall be reported only to the annual report. the Committee on Foreign Relations of (c) The annual report shall be sub- the Senate and the Committee on For- mitted at the same time the agency eign Affairs of the House of Represent- submits its annual budget justifica- atives or the Committees on Armed tions to Congress. Services of the Senate and the House of (d) The annual report shall include Representatives (whichever such com- the following: All alleged violations re- mittees have jurisdiction of matters lating to the agency’s covered Federal involving such information) and to the actions during the year covered by the Committees on Appropriations of the report, the actions taken by the head Senate and the House of Representa- of the agency in the year covered by tives in accordance with procedures the report with respect to those alleged agreed to by such committees. Such in- violations and alleged violations in formation shall not be available for previous years, and the amounts of public inspection. civil penalties imposed by the agency (e) The first semi-annual compilation in the year covered by the report. shall be submitted on May 31, 1990, and shall contain a compilation of the dis- APPENDIX A TO PART 1158— closure reports received from Decem- CERTIFICATION REGARDING LOBBYING ber 23, 1989 to March 31, 1990. Certification for Contracts, Grants, Loans, and (f) Major agencies, designated by the Cooperative Agreements Office of Management and Budget (OMB), are required to provide ma- The undersigned certifies, to the best of his or her knowledge and belief, that: chine-readable compilations to the (1) No Federal appropriated funds have Secretary of the Senate and the Clerk been paid or will be paid, by or on behalf of of the House of Representatives no the undersigned, to any person for influ- later than with the compilations due encing or attempting to influence an officer on May 31, 1991. OMB shall provide de- or employee of an agency, a Member of Con- tailed specifications in a memorandum gress, an officer or employee of Congress, or to these agencies. an employee of a Member of Congress in con- (g) Non-major agencies are requested nection with the awarding of any Federal contract, the making of any Federal grant, to provide machine-readable compila- the making of any Federal loan, the entering tions to the Secretary of the Senate into of any cooperative agreement, and the and the Clerk of the House of Rep- extension, continuation, renewal, amend- resentatives. ment, or modification of any Federal con- (h) Agencies shall keep the originals tract, grant, loan, or cooperative agreement. of all disclosure reports in the official (2) If any funds other than Federal appro- files of the agency. priated funds have been paid or will be paid to any person for influencing or attempting § 1158.605 Inspector General report. to influence an officer or employee of any agency, a Member of Congress, an officer or (a) The Inspector General, or other employee of Congress, or an employee of a official as specified in paragraph (b) of Member of Congress in connection with this this section, of each agency shall pre- Federal contract, grant, loan, or cooperative pare and submit to Congress each year, agreement, the undersigned shall complete commencing with submission of the and submit Standard Form-LLL, ‘‘Disclosure President’s Budget in 1991, an evalua- Form to Report Lobbying,’’ in accordance with its instructions. tion of the compliance of that agency (3) The undersigned shall require that the with, and the effectiveness of, the re- language of this certification be included in quirements herein. The evaluation may the award documents for all subawards at all include any recommended changes that tiers (including subcontracts, subgrants, and

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contracts under grants, loans, and coopera- to influence an officer or employee of any tive agreements) and that all subrecipients agency, a Member of Congress, an officer or shall certify and disclose accordingly. employee of Congress, or an employee of a This certification is a material representa- Member of Congress in connection with this tion of fact upon which reliance was placed commitment providing for the United States when this transaction was made or entered to insure or guarantee a loan, the under- into. Submission of this certification is a signed shall complete and submit Standard prerequisite for making or entering into this Form-LLL, ‘‘Disclosure Form to Report Lob- transaction imposed by section 1352, title 31, bying,’’ in accordance with its instructions. U.S. Code. Any person who fails to file the Submission of this statement is a pre- required certification shall be subject to a requisite for making or entering into this civil penalty of not less than $19,639 and not transaction imposed by section 1352, title 31, more than $196,387 for each such failure. U.S. Code. Any person who fails to file the Statement for Loan Guarantees and Loan required statement shall be subject to a civil Insurance penalty of not less than $19,639 and not more than $196,387 for each such failure. The undersigned states, to the best of his or her knowledge and belief, that: [55 FR 6737, 6755, Feb. 26, 1990, as amended at If any funds have been paid or will be paid 82 FR 27434, June 15, 2017; 83 FR 2073, Jan. 16, to any person for influencing or attempting 2018]

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APPENDIX B TO PART 1158—DISCLOSURE FORM TO REPORT LOBBYING

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PART 1159—IMPLEMENTATION OF § 1159.1 What definitions apply to THE PRIVACY ACT OF 1974 these regulations? The definitions of the Privacy Act Sec. apply to this part. In addition, as used 1159.1 What definitions apply to these regu- in this part: lations? (a) Agency means any executive de- 1159.2 What is the purpose of these regula- partment, military department, gov- tions? ernment corporation, or other estab- 1159.3 Where should individuals send inquir- lishment in the executive branch of the ies about the Endowment’s systems of Federal government, including the Ex- records or implementation of the Privacy ecutive Office of the President or any Act? independent regulatory agency. 1159.4 How will the public receive notifica- (b) Business day means a calendar tion of the Endowment’s systems of day, excluding Saturdays, Sundays, records? and legal public holidays. 1159.5 What government entities will the (c) Chairperson means the Chair- Endowment notify of proposed changes person of the Endowment, or his or her to its systems of records? designee; 1159.6 What limits exist as to the contents (d) Endowment means the National of the Endowment’s systems of records? Endowment for the Arts; 1159.7 Will the Endowment collect informa- (e) Endowment system means a sys- tion from me for its records? 1159.8 How can I acquire access to Endow- tem of records maintained by the En- ment records pertaining to me? dowment; 1159.9 What identification will I need to (f) General Counsel means the General show when I request access to Endow- Counsel of the Endowment, or his or ment records pertaining to me? her designee. 1159.10 How can I pursue amendments to or (g) Individual means any citizen of corrections of an Endowment record? the United States or an alien lawfully 1159.11 How can I appeal a refusal to amend admitted for permanent residence; or correct an Endowment record? (h) Maintain means to collect, use, 1159.12 Will the Endowment charge me fees store, or disseminate records, as well to locate, review, or copy records? as any combination of these record- 1159.13 In what other situations will the En- keeping functions. The term also in- dowment disclose its records? cludes exercise of control over and, 1159.14 Will the Endowment maintain a therefore, responsibility and account- written account of disclosures made from ability for, systems of records; its systems of records? (i) Privacy Act means the Privacy Act 1159.15 Who has the responsibility for main- of 1974, as amended (5 U.S.C. 552a); taining adequate technical, physical, and (j) Record means any item, collection, security safeguards to prevent unauthor- or grouping of information about an in- ized disclosure or destruction of manual dividual that is maintained by an agen- and automatic record systems? cy and contains the individual’s name 1159.16 Will the Endowment take steps to ensure that its employees involved with or another identifying particular, such its systems of records are familiar with as a number or symbol assigned to the the requirements and implications of the individual, or his or her fingerprint, Privacy Act? voice print, or photograph. The term 1159.17 Which of the Endowment’s systems includes, but is not limited to, infor- of records are covered by exemptions in mation regarding an individual’s edu- the Privacy Act? cation, financial transactions, medical 1159.18 What are the penalties for obtaining history, and criminal or employment an Endowment record under false pre- history; tenses? (k) Routine use means, with respect 1159.19 What restrictions exist regarding to the disclosure of a record, the use of the release of mailing lists? a record for a purpose that is compat- AUTHORITY: 5 U.S.C. 552a(f). ible with the purpose for which it was collected; SOURCE: 65 FR 46371, July 28, 2000, unless (l) Subject individual means the indi- otherwise noted. vidual to whom a record pertains. Uses of the terms ‘‘I’’, ‘‘you’’, ‘‘me’’, and

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other references to the reader of the of this section, the Endowment shall regulations in this part are meant to publish in the FEDERAL REGISTER a no- apply to subject individuals as defined tice of its intention to establish any in this paragraph (l); and new routine uses of any of its systems (m) System of records means a group of of records, thereby providing the public records under the control of any agen- an opportunity to comment on such cy from which information is retrieved uses. This notice published by the En- by use of the name of the individual or dowment shall contain the following: by some number, symbol, or other (1) The name of the system of records identifying particular assigned to the for which the routine use is to be es- individual. tablished; § 1159.2 What is the purpose of these (2) The authority for the system; regulations? (3) The purpose for which the record The regulations in this part set forth is to be maintained; the Endowment’s procedures under the (4) The proposed routine use(s); Privacy Act, as required by 5 U.S.C. (5) The purpose of the routine use(s); 552a(f), with respect to systems of and records maintained by the Endowment. (6) The categories of recipients of These regulations establish procedures such use. by which an individual may exercise (c) Any request for additions to the the rights granted by the Privacy Act routine uses of Endowment systems to determine whether an Endowment should be sent to the Office of the Gen- system contains a record pertaining to eral Counsel (see § 1159.3 of this part). him or her; to gain access to such (d) Any individual who wishes to records; and to request correction or amendment of such records. These reg- know whether an Endowment system ulations also set identification require- contains a record pertaining to him or ments, prescribe fees to be charged for her should write to the Office of the copying records, and establish exemp- General Counsel (see § 1159.3 of this tions from certain requirements of the part). Such individuals may also call Act for certain Endowment systems or the Office of the General Counsel at components thereof. (202) 682–5418 on business days, between the hours of 9 a.m. and 5:30 p.m., to § 1159.3 Where should individuals send schedule an appointment to make an inquiries about the Endowment’s inquiry in person. In either case, in- systems of records or implementa- quiries should be presented in writing tion of the Privacy Act? and should specifically identify the En- Inquiries about the Endowment’s sys- dowment systems involved. The En- tems of records or implementation of dowment will attempt to respond to an the Privacy Act should be sent to the inquiry as to whether a record exists following address: National Endow- within 10 business days of receiving the ment for the Arts; Office of the General inquiry. Counsel; 1100 Pennsylvania Avenue, NW; Room 518; Washington, DC 20506. § 1159.5 What government entities will the Endowment notify of proposed § 1159.4 How will the public receive changes to its systems of records? notification of the Endowment’s systems of records? When the Endowment proposes to es- (a) From time to time, the Endow- tablish or significantly changes any of ment shall review its systems of its systems of records, it shall provide records in the FEDERAL REGISTER, and adequate advance notice of such pro- publish, if necessary, any amendments posal to the Committee on Government to those systems of records. Such pub- Reform of the House of Representa- lication shall not be made for those tives, the Committee on Governmental systems of records maintained by other Affairs of the Senate, and the Office of agencies while in the temporary cus- Management and Budget (OMB), in tody of the Endowment. order to permit an evaluation of the (b) At least 30 days prior to publica- probable or potential effect of such tion of information under paragraph (a) proposal on the privacy or other rights

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of individuals. This report will be sub- (e) Any effects on you of not pro- mitted in accordance with guidelines viding all or any part of the required or provided by the OMB. requested information.

§ 1159.6 What limits exist as to the con- § 1159.8 How can I acquire access to tents of the Endowment’s systems Endowment records pertaining to of records? me? (a) The Endowment shall maintain The following procedures apply to only such information about an indi- records that are contained in an En- vidual as is relevant and necessary to dowment system: accomplish a purpose of the agency re- (a) You may request review of quired by statute or by executive order records pertaining to you by writing to of the President. In addition, the En- the Office of the General Counsel (see dowment shall maintain all records § 1159.3 of this part). You may also call that are used in making determina- the Office of the General Counsel at tions about any individual with such (202) 682–5418 on business days, between accuracy, relevance, timeliness, and the hours of 9 a.m. and 5:30 p.m., to completeness as is reasonably nec- schedule an appointment to make such essary to ensure fairness to that indi- a request in person. In either case, vidual in the making of any determina- your request should be presented in tion about him or her. However, the writing and should specifically identify Endowment shall not be required to up- the Endowment systems involved. date retired records. (b) Access to the record, or to any (b) The Endowment shall not main- other information pertaining to you tain any record about any individual that is contained in the system, shall with respect to or describing how such be provided if the identification re- individual exercises rights guaranteed quirements of § 1159.9 of this part are by the First Amendment of the Con- satisfied and the record is otherwise stitution of the United States, unless determined to be releasable under the Privacy Act and these regulations. The expressly authorized by statute or by Endowment shall provide you an oppor- the subject individual, or unless perti- tunity to have a copy made of any such nent to and within the scope of an au- record about you. Only one copy of thorized law enforcement activity. each requested record will be supplied, § 1159.7 Will the Endowment collect in- based on the fee schedule in § 1159.12 of formation from me for its records? this part. (c) The Endowment will comply The Endowment shall collect infor- promptly with requests made in person mation, to the greatest extent prac- at scheduled appointments, if the re- ticable, directly from you when the in- quirements of this section are met and formation may result in adverse deter- the records sought are immediately minations about your rights, benefits, available. The Endowment will ac- or privileges under Federal programs. knowledge mailed requests, or personal In addition, the Endowment shall in- requests for documents that are not form you of the following, either on the immediately available, within 10 busi- form it uses to collect the information ness days, and the information re- or on a separate form that you can requested will be provided promptly tain, when it asks you to supply infor- thereafter. mation: (d) If you make your request in per- (a) The statutory or executive order son at a scheduled appointment, you authority that authorizes the solicita- may, upon your request, be accom- tion of the information; panied by a person of your choice to re- (b) Whether disclosure of such infor- view your record. The Endowment may mation is mandatory or voluntary; require that you furnish a written (c) The principal purpose(s) for which statement authorizing discussion of the information is intended to be used; your record in the accompanying per- (d) The routine uses that may be son’s presence. A record may be dis- made of the information, as published closed to a representative chosen by pursuant to § 1159.4 of this part; and you upon your proper written consent.

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(e) Medical or psychological records identity and stipulating that you un- pertaining to you shall be disclosed to derstand that knowingly or willfully you unless, in the judgment of the En- seeking or obtaining access to records dowment, access to such records might about another person under false pre- have an adverse effect upon you. When tenses is punishable by a fine of up to such determination has been made, the $5,000. Endowment may refuse to disclose such information directly to you. The § 1159.10 How can I pursue amend- Endowment will, however, disclose this ments to or corrections of an En- information to a licensed physician dowment record? designated by you in writing. (a) You are entitled to request amendments to or corrections of § 1159.9 What identification will I need records pertaining to you pursuant to to show when I request access to the provisions of the Privacy Act, in- Endowment records pertaining to cluding 5 U.S.C. 552a(d)(2). Such a reme? quest should be made in writing and The Endowment shall require reason- addressed to the Office of the General able identification of all individuals Counsel (see § 1159.3 of this part). who request access to records in an En- (b) Your request for amendments or dowment system to ensure that they corrections should specify the fol- are disclosed to the proper person. lowing: (a) The amount of personal identi- (1) The particular record that you are fication required will of necessity vary seeking to amend or correct; with the sensitivity of the record in- (2) The Endowment system from volved. In general, if you request dis- which the record was retrieved; closure in person, you shall be required (3) The precise correction or amend- to show an identification card, such as ment you desire, preferably in the form a driver’s license, containing your pho- of an edited copy of the record reflect- tograph and sample signature. How- ing the desired modification; and ever, with regard to records in Endow- (4) Your reasons for requesting ment systems that contain particu- amendment or correction of the record. larly sensitive and/or detailed personal (c) The Endowment will acknowledge information, the Endowment reserves a request for amendment or correction the right to require additional means of a record within 10 business days of of identification as are appropriate its receipt, unless the request can be under the circumstances. These means processed and the individual informed include, but are not limited to, requir- of the General Counsel’s decision on ing you to sign a statement under oath the request within that 10-day period. as to your identity, acknowledging (d) If after receiving and inves- that you are aware of the penalties for tigating your request, the General improper disclosure under the provi- Counsel agrees that the record is not sions of the Privacy Act. accurate, timely, or complete, based on (b) If you request disclosure by mail, a preponderance of the evidence, then the Endowment will request such infor- the record will be corrected or amend- mation as may be necessary to ensure ed promptly. The record will be deleted that you are properly identified. Au- without regard to its accuracy, if the thorized means to achieve this goal in- record is not relevant or necessary to clude, but are not limited to, requiring accomplish the Endowment function that a mail request include certifi- for which the record was provided or is cation that a duly commissioned no- maintained. In either case, you will be tary public of any State or territory informed in writing of the amendment, (or a similar official, if the request is correction, or deletion. In addition, if made outside of the United States) re- accounting was made of prior disclo- ceived an acknowledgment of identity sures of the record, all previous recipi- from you. ents of the record will be informed of (c) If you are unable to provide suit- the corrective action taken. able documentation or identification, (e) If after receiving and inves- the Endowment may require a signed, tigating your request, the General notarized statement asserting your Counsel does not agree that the record

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should be amended or corrected, you ment as to the disputed record. Under will be informed promptly in writing of the procedures set forth in paragraph the refusal to amend or correct the (f) of this section, your statement will record and the reason for this decision. be disclosed whenever the disputed You will also be informed that you record is disclosed; and may appeal this refusal in accordance (3) That you may seek judicial review with § 1159.11 of this part. of the Chairperson’s determination (f) Requests to amend or correct a under 5 U.S.C. 552a(g)(1)(a). record governed by the regulations of (f) Whenever you submit a statement another agency will be forwarded to of disagreement to the Endowment in such agency for processing, and you accordance with paragraph (e)(2) of this will be informed in writing of this re- section, the record will be annotated to ferral. indicate that it is disputed. In any sub- § 1159.11 How can I appeal a refusal to sequent disclosure, a copy of your amend or correct an Endowment statement of disagreement will be dis- record? closed with the record. If the Endow- (a) You may appeal a refusal to ment deems it appropriate, a concise amend or correct a record to the Chair- statement of the Chairperson’s reasons person. Such appeal must be made in for denying your appeal may also be writing within 10 business days of your disclosed with the record. While you receipt of the initial refusal to amend will have access to this statement of or correct your record. Your appeal the Chairperson’s reasons for denying should be sent to the Office of the Gen- your appeal, such statement will not be eral Counsel (see § 1159.3 of this part), subject to correction or amendment. should indicate that it is an appeal, Where an accounting was made of prior and should include the basis for the ap- disclosures of the record, all previous peal. recipients of the record will be pro- (b) The Chairperson will review your vided a copy of your statement of dis- request to amend or correct the record, agreement, as well as any statement of the General Counsel’s refusal, and any the Chairperson’s reasons for denying other pertinent material relating to your appeal. the appeal. No hearing will be held. (c) The Chairperson shall render his § 1159.12 Will the Endowment charge or her decision on your appeal within me fees to locate, review, or copy 30 business days of its receipt by the records? Endowment, unless the Chairperson, (a) The Endowment shall charge no for good cause shown, extends the 30- fees for search time or for any other day period. Should the Chairperson ex- time expended by the Endowment to tend the appeal period, you will be in- review a record. However, the Endow- formed in writing of the extension and ment may charge fees where you re- the circumstances of the delay. quest that a copy be made of a record (d) If the Chairperson determines to which you have been granted access. that the record that is the subject of Where a copy of the record must be the appeal should be amended or cor- made in order to provide access to the rected, the record will be so modified, and you will be informed in writing of record (e.g., computer printout where the amendment or correction. Where no screen reading is available), the an accounting was made of prior disclo- copy will be made available to you sures of the record, all previous recipi- without cost. ents of the record will be informed of (b) Copies of records made by photo- the corrective action taken. copy or similar process will be charged (e) If your appeal is denied, you will to you at the rate of $0.10 per page. be informed in writing of the following: Where records are not susceptible to (1) The denial and the reasons for the photocopying (e.g., punch cards, mag- denial; netic tapes, or oversize materials), you (2) That you may submit to the En- will be charged actual cost as deter- dowment a concise statement setting mined on a case-by-case basis. A copy- forth the reasons for your disagree- ing fee totaling $3.00 or less shall be

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waived, but the copying fees for con- be used solely as a statistical research temporaneous requests by the same in- or reporting record, and the record is dividual shall be aggregated to deter- to be transferred in a form that is not mine the total fee. individually identifiable; (c) Special and additional services (6) To the National Archives and provided at your request, such as cer- Records Administration as a record tification or authentication, postal in- that has sufficient historical or other surance, and special mailing arrange- value to warrant its continued preser- ment costs, will be charged to you. vation by the United States govern- (d) A copying fee shall not be charged ment, or for evaluation by the Archi- or, alternatively, it may be reduced, vist of the United States, or his or her when the General Counsel determines, designee, to determine whether the based on a petition, that the peti- record has such value; tioning individual is indigent and that (7) To another agency or to an instru- the Endowment’s resources permit a mentality of any governmental juris- waiver of all or part of the fee. diction within or under the control of (e) All fees shall be paid before any the United States for a civil or crimi- copying request is undertaken. Pay- nal law enforcement activity, if the ac- ments shall be made by check or tivity is authorized by law, and if the money order payable to the ‘‘National head of the agency or instrumentality Endowment for the Arts.’’ has made a written request to the En- dowment for such records specifying § 1159.13 In what other situations will the particular portion desired and the the Endowment disclose its law enforcement activity for which the records? record is sought. The Endowment may (a) The Endowment shall not disclose also disclose such a record to a law en- any record that is contained in a sys- forcement agency on its own initiative tem of records to any person or to an- in situations in which criminal conduct other agency, except pursuant to a is suspected, provided that such disclo- written request by or with the prior sure has been established as a routine written consent of the subject indi- use, or in situations in which the mis- vidual, unless disclosure of the record conduct is directly related to the pur- is: pose for which the record is main- (1) To those officers or employees of tained; the Endowment who maintain the (8) To a person pursuant to a showing record and who have a need for the of compelling circumstances affecting record in the performance of their offi- the health or safety of an individual if, cial duties; upon such disclosure, notification is (2) Required under the provisions of transmitted to the last known address the Freedom of Information Act (5 of such individual; U.S.C. 552). Records required to be (9) To either House of Congress, or, to made available by the Freedom of In- the extent of matter within its juris- formation Act will be released in re- diction, any committee or sub- sponse to a request to the Endowment committee thereof, any joint com- formulated in accordance with the Na- mittee of Congress, or subcommittee of tional Foundation on the Arts and the any such joint committee; Humanities regulations published at 45 (10) To the Comptroller General, or CFR part 1100; any of his or her authorized representa- (3) For a routine use as published in tives, in the course of the performance the annual notice in the FEDERAL REG- of official duties of the General Ac- ISTER; counting Office; (4) To the Census Bureau for purposes (11) To a consumer reporting agency of planning or carrying out a census, in accordance with 31 U.S.C. 3711(e); or survey, or related activity pursuant to (12) Pursuant to an order of a court of the provisions of Title 13 of the United competent jurisdiction. In the event States Code; that any record is disclosed under such (5) To a recipient who has provided compulsory legal process, the Endow- the Endowment with adequate advance ment shall make reasonable efforts to written assurance that the record will notify the subject individual after the

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process becomes a matter of public struction of manual and automatic record. record systems. These security safe- (b) Before disseminating any record guards shall apply to all systems in about any individual to any person which identifiable personal data are other than an Endowment employee, processed or maintained, including all the Endowment shall make reasonable reports and outputs from such systems efforts to ensure that such records are, that contain identifiable personal in- or at the time they were collected formation. Such safeguards must be were, accurate, complete, timely, and sufficient to prevent negligent, acci- relevant for Endowment purposes. This dental, or unintentional disclosure, paragraph (b) does not apply to dis- modification or destruction of any per- seminations made pursuant to the pro- sonal records or data, and must fur- visions of the Freedom of Information thermore minimize, to the extent prac- Act (5 U.S.C. 552) and paragraph (a)(2) ticable, the risk that skilled techni- of this section. cians or knowledgeable persons could improperly obtain access to modify or § 1159.14 Will the Endowment main- destroy such records or data and shall tain a written account of disclosures made from its systems of further insure against such casual records? entry by unskilled persons without official reasons for access to such records (a) The Office of the General Counsel or data. shall maintain a written log containing (a) Manual systems. (1) Records con- the date, nature, and purpose of each tained in a system of records as defined disclosure of a record to any person or herein may be used, held or stored only to another agency. Such accounting where facilities are adequate to pre- shall also contain the name and ad- vent unauthorized access by persons dress of the person or agency to whom within or outside the Endowment. each disclosure was made. This log (2) All records, when not under the need not include disclosures made to personal control of the employees au- Endowment employees in the course of thorized to use the records, must be their official duties, or pursuant to the stored in a locked metal filing cabinet. provisions of the Freedom of Informa- Some systems of records are not of tion Act (5 U.S.C. 552). such confidential nature that their dis- (b) The Endowment shall retain the closure would constitute a harm to an accounting of each disclosure for at individual who is the subject of such least five years after the accounting is record. However, records in this cat- made or for the life of the record that egory shall also be maintained in was disclosed, whichever is longer. locked metal filing cabinets or main- (c) The Endowment shall make the tained in a secured room with a lock- accounting of disclosures of a record ing door. pertaining to you available to you at (3) Access to and use of a system of your request. Such a request should be records shall be permitted only to per- made in accordance with the proce- sons whose duties require such access dures set forth in § 1159.8 of this part. within the Endowment, for routine This paragraph (c) does not apply to uses as defined in § 1159.1 as to any disclosures made for law enforcement given system, or for such other uses as purposes under 5 U.S.C. 552a(b)(7) and may be provided herein. § 1159.13(a)(7) of this part. (4) Other than for access within the § 1159.15 Who has the responsibility Endowment to persons needing such for maintaining adequate technical, records in the performance of their of- physical, and security safeguards to ficial duties or routine uses as defined prevent unauthorized disclosure or in § 1159.1, or such other uses as pro- destruction of manual and auto- vided herein, access to records within a matic record systems? system of records shall be permitted The Deputy Chairman for Manage- only to the individual to whom the ment and Budget has the responsibility record pertains or upon his or her writ- of maintaining adequate technical, ten request to the General Counsel. physical, and security safeguards to (5) Access to areas where a system of prevent unauthorized disclosure or de- records is stored will be limited to

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those persons whose duties require § 1159.16 Will the Endowment take work in such areas. There shall be an steps to ensure that its employees accounting of the removal of any involved with its systems of records records from such storage areas uti- are familiar with the requirements lizing a written log, as directed by the and implications of the Privacy Deputy Chairman for Management and Act? Budget. The written log shall be main- (a) The Chairperson shall ensure that tained at all times. all persons involved in the design, de- (6) The Endowment shall ensure that velopment, operation or maintenance all persons whose duties require access of any Endowment system are in- to and use of records contained in a formed of all requirements necessary system of records are adequately to protect the privacy of subject indi- trained to protect the security and pri- viduals. The Chairperson shall also en- vacy of such records. sure that all Endowment employees (7) The disposal and destruction of having access to records receive ade- records within a system of records quate training in their protection, and shall be in accordance with rules pro- that records have adequate and proper mulgated by the General Services Ad- storage with sufficient security to as- ministration. sure the privacy of such records. (b) Automated systems. (1) Identifiable (b) All employees shall be informed personal information may be processed, of the civil remedies provided under 5 stored or maintained by automated U.S.C. 552a(g)(1) and other implications data systems only where facilities or of the Privacy Act, and the fact that conditions are adequate to prevent un- the Endowment may be subject to civil authorized access to such systems in remedies for failure to comply with the any form. Whenever such data, whether provisions of the Privacy Act and these contained in punch cards, magnetic regulations. tapes or discs, are not under the personal control of an authorized person, § 1159.17 Which of the Endowment’s such information must be stored in a systems of records are covered by locked or secured room, or in such exemptions in the Privacy Act? other facility having greater safe- (a) Pursuant to and limited by 5 guards than those provided for herein. U.S.C. 552a(j)(2), the Endowment sys- (2) Access to and use of identifiable tem entitled ‘‘Office of the Inspector personal data associated with auto- General Investigative Files’’ shall be mated data systems shall be limited to exempted from the provisions of 5 those persons whose duties require U.S.C. 552a, except for subsections (b); such access. Proper control of personal (c)(1) and (2); (e)(4)(A) through (F); data in any form associated with auto- (e)(6), (7), (9), (10), and (11); and (i), inso- mated data systems shall be main- far as that Endowment system contained at all times, including mainte- tains information pertaining to crimi- nance of accountability records show- nal law enforcement investigations. ing disposition of input and output doc- (b) Pursuant to and limited by 5 uments. U.S.C. 552a(k)(2), the Endowment sys- (3) All persons whose duties require tem entitled ‘‘Office of the Inspector access to processing and maintenance General Investigative Files’’ shall be of identifiable personal data and auto- exempted from 5 U.S.C. 552a(c)(3); (d); mated systems shall be adequately (e)(1); (e)(4)(G), (H), and (I); and (f), in- trained in the security and privacy of sofar as that Endowment system con- personal data. sists of investigatory material com- (4) The disposal and disposition of piled for law enforcement purposes, identifiable personal data and auto- other than material within the scope of mated systems shall be done by shred- the exemption at 5 U.S.C. 552a(j)(2). ding, burning or in the case of tapes or (c) The Endowment system entitled discs, degaussing, in accordance with ‘‘Office of the Inspector General Inves- any regulations now or hereafter pro- tigative Files’’ is exempt from the posed by the General Services Adminis- above-noted provisions of the Privacy tration or other appropriate authority. Act because their application might

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alert investigation subjects to the ex- guilty of a misdemeanor and fined not istence or scope of investigations; lead more than $5,000. to suppression, alteration, fabrication, (b) A person who falsely or fraudu- or destruction of evidence; disclose in- lently attempts to obtain records vestigative techniques or procedures; under the Privacy Act may also be sub- reduce the cooperativeness or safety of ject to prosecution under other stat- witnesses; or otherwise impair inves- utes, including 18 U.S.C. 494, 495, and tigations. 1001.

§ 1159.18 What are the penalties for ob- § 1159.19 What restrictions exist retaining an Endowment record garding the release of mailing lists? under false pretenses? The Endowment may not sell or rent (a) Under 5 U.S.C. 552a(i)(3), any per- an individual’s name and address unless such action is specifically author- son who knowingly and willfully re- ized by law. This section shall not be quests or obtains any record con- construed to require the withholding of cerning an individual from the Endow- names and addresses otherwise per- ment under false pretenses shall be mitted to be made public.

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PART 1160—INDEMNITIES UNDER of the National Endowment for the Hu- THE ARTS AND ARTIFACTS IN- manities, the Secretary of Education, DEMNITY ACT the Director of the National Science Foundation, the Librarian of Congress, the Chairman of the Commission of Sec. 1160.1 Purpose and scope. Fine Arts, the Archivist of the United 1160.2 Federal Council on the Arts and the States, the Commissioner, Public Humanities. Buildings Service, General Services 1160.3 Definitions. Administration, the Administrator of 1160.4 Eligibility for international exhibi- the General Services Administration, tions. the Director of the United States Infor- 1160.5 Eligibility for domestic exhibitions. mation Agency, the Secretary of the 1160.6 Application for indemnification. 1160.7 Certificate of national interest. Interior, the Secretary of Commerce, 1160.8 Indemnity agreement. the Secretary of Transportation, the 1160.9 Letter of intent. Chairman of the National Museum 1160.10 Loss adjustment. Services Board, the Director of the In- 1160.11 Certification of claim and amount of stitute of Museum and Library Serv- loss to the Congress. ices, the Secretary of Housing and 1160.12 Appraisal procedures. Urban Development, the Secretary of 1160.13 Indemnification limits. Labor, the Secretary of Veterans Af- AUTHORITY: 20 U.S.C. 971–977. fairs, and the Commissioner of the Ad- SOURCE: 56 FR 49848, Oct. 2, 1991, unless ministration on Aging. otherwise noted. § 1160.3 Definitions. § 1160.1 Purpose and scope. For the purposes of this part: (a) This part sets forth the exhibition (a) Council means the Federal Council indemnity procedures of the Federal on the Arts and the Humanities as de- Council on the Arts and Humanities fined in § 1160.2. under the Arts and Artifacts Indemnity (b) Letter of Intent means an agree- Act (Pub. L. 94–158) as required by sec- ment by the Council to provide an in- tion 2(a)(2) of the Act. demnity covering a future exhibition (1) Eligible items from outside the subject to compliance with all require- United States while on exhibition in ments at the date the indemnity is to the United States or be effective. (2) Eligible items from the United (c) Lender means the owner of an ob- States while on exhibition outside this ject. country, preferably when they are part (d) Eligible item means an object of an exchange of exhibitions. which qualifies for coverage under the (b) Program guidelines and further Arts and Artifacts Indemnity Act. information are available from the In- (e) Exhibition means a public display demnity Administrator, c/o Museum of an indemnified items(s) at one or Program, National Endowment for the more locations, as approved by the Arts, 1100 Pennsylvania Avenue, NW., Council, presented by any person, non- Washington, DC 20506. profit agency or institution, or Govern- [56 FR 49848, Oct. 2, 1991, as amended at 60 FR ment, in the United States or else- 42465, Aug. 16, 1995] where. (f) On Exhibition means the period of § 1160.2 Federal Council on the Arts time beginning on the date an indem- and the Humanities nified item leaves the place designated For the purposes of this part (45 CFR by the lender and ending on the termi- part 1160) the Federal Council on the nation date. Arts and the Humanities shall be com- (g) Indemnity Agreement means the posed of the Chairman of the National contract between the Council and the Endowment for the Arts, the Chairman indemnitee covering loss or damage to

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indemnified items under the authority (2) Discussion. This example is a com- of the Arts and Artifacts Indemnity mon application for coverage of both Act. foreign- and domestic-owned objects in (h) Indemnitee means the party or an international exhibition. The for- parties to an indemnity agreement eign-owned objects are eligible for in- issued by the Council, to whom the demnity coverage under paragraph (a) promise of indemnification is made. of this section, and the domestic-owned (i) Participating institution(s) means objects may be eligible for indemnity the location(s) where an exhibition in- coverage under paragraph (c) of this demnified under this part will be dis- section if the foreign-owned objects are played. integral to the purposes of the exhi- (j) Termination date means the date bition as a whole. In reviewing this ap- thirty (30) calendar days after the date plication, the Federal Council would specified in the indemnity Certificate evaluate the exhibition as a whole and by which an indemnified item is to be determine whether the loans of 125 for- returned to the place designated by the eign-owned objects are integral to the lender or the date on which the item is educational, cultural, historical, or sci- actually so returned, whichever date is entific significance of the exhibition on earlier. (In museum terms this means Renoir. It would also be necessary for wall-to-wall coverage.) After 11:59 p.m. the U.S. Department of State to deter- on the termination date, the item is no mine whether or not the exhibition was longer covered by the indemnity agree- in the national interest. ment unless an extension has thereto- [73 FR 21056, Apr. 18, 2008] fore been requested by the indemnitee and granted in writing by the Council. § 1160.5 Eligibility for domestic exhibitions. § 1160.4 Eligibility for international An indemnity agreement for a do- exhibitions. mestic exhibition made under these An indemnity agreement for an regulations shall cover eligible items international exhibition made under from the United States while on Exhi- these regulations shall cover: bition in the United States. (a) Eligible items from outside the (a)(1) Example 1. An American mu- United States while on exhibition in seum is undergoing renovation and will the United States; be closed to the public for one year. (b) Eligible items from the United During that time, masterpieces from States while on exhibition outside this the collection will go on tour to three country, preferably when they are part other museums in the United States. of an exchange of exhibitions; and Many of these works have never been (c) Eligible items from the United lent for travel, and this will be a States while on exhibition in the unique and the last opportunity for United States, in connection with museum visitors in other parts of the other eligible items from outside the country to see them exhibited to- United States which are integral to the gether. Once the new building opens, exhibition as a whole. they will be permanently installed and (d)(1) Example. An American art mu- dispersed throughout the museum’s seum is organizing a retrospective ex- galleries. hibition which will include more than (2) Discussion. (i) This is a straight- 150 works of art by Impressionist paint- forward example of a domestic exhi- er Auguste Renoir. Museums in Paris bition which would be eligible for con- and London have agreed to lend 125 sideration for indemnity coverage. works of art, covering every aspect of Under the previous regulations, eligi- his career, many of which have not bility was limited to: been seen together since the artist’s (A) Exhibitions in the United States death in 1919. The organizer is planning of entirely foreign-owned objects; to include 25 masterpieces by Renoir (B) Exhibitions outside of the United from American public and private col- States of domestic-owned objects; or lections. The show will open in Chicago (C) Exhibitions in the United States and travel to San Francisco and Wash- of both foreign- and domestic-owned ington. objects, with the foreign-owned objects

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having integral importance to the exhi- mine whether or not the exhibition was bition. in the national interest. (ii) In this example, the Federal (iii) If the applicant submitted an ap- Council will consider the educational, plication for a domestic exhibition, cultural, historical, or scientific sig- however, only the loans of domestic- nificance of the proposed domestic ex- owned objects, the highest valued part hibition of the domestic-owned objects. of the exhibition, would be eligible for It would not be necessary for the U.S. coverage. The Federal Council would Department of State to determine consider if the U.S. loans were of edu- whether or not the exhibition was in cational, cultural or historic interest. the national interest. It would not be necessary for the U.S. (b)(1) Example 2. An American mu- Department of State to determine seum is organizing an exhibition of whether or not the exhibition was in works by 20th century American art- the national interest. In this case, the ists, which will travel to one other U.S. applicant would have to insure the museum. There are more than 100 ob- loans of the foreign-owned objects by jects in the exhibition. The majority of other means. the paintings, drawings and sculpture, [73 FR 21056, Apr. 18, 2008] valued at more than $500,000,000, are from galleries, museums and private § 1160.6 Application for indemnifica- collections in the United States. The tion. organizing curator has selected ten An applicant for an indemnity shall works of art, mostly drawings and pre- submit an Application for Indemnifica- paratory sketches relating to paintings tion, addressed to the Indemnity Ad- in the exhibition, valued at less than ministrator, National Endowment for $5,000,000, which will be borrowed from the Arts, Washington, DC 20506, which foreign lenders. shall described as fully as possible: (2) Discussion. (i) This example raises (a) The time, place, nature and the question of whether this applicant Project Director/Curator of the exhi- should submit an application for in- bition for which the indemnity is demnity coverage for a domestic exhi- sought; bition or an international exhibition. If (b) Evidence that the owner and the applicant submitted an application present possessor are willing to lend for an international exhibition request- the eligible items, and both are pre- ing coverage for only the foreign-owned pared to be bound by the terms of the objects eligible under Section 1160.4(a), indemnity agreement; the Federal Council would evaluate (c) The total value of all items to be whether the ten foreign-owned objects indemnified, including a description of further the exhibition’s educational, each item to be covered by the agree- cultural, historical, or scientific pur- ment and each item’s value; poses. It would also be necessary for (d) The source of valuations of each the U.S. Department of State to deter- item, plus an opinion by a disinterested mine whether or not the exhibition was third party of the valuations estab- in the national interest. In this case, lished by lenders; the applicant would have to insure the (e) The significance, and the edu- loans of the domestic-owned objects by cational, cultural, historical, or sci- other means. entific value of the items to be indem- (ii) In the case of an application for nified, and of the exhibition as a whole; an international exhibition requesting (f) Statements describing policies, coverage for both domestic-owned and procedures, techniques, and methods to foreign-owned objects eligible under be employed with respect to: section 1160.4(a) and (c), the Federal (1) Packing of items at the premises Council would evaluate the exhibition of, or the place designated by the lend- as a whole to determine if the ten for- er; eign-owned objects are integral to (2) Shipping arrangements; achieving the exhibition’s educational, (3) Condition reports at lender’s loca- cultural, historical, or scientific pur- tion; poses. It would also be necessary for (4) Condition reports at borrower’s the U.S. Department of State to deter- location;

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(5) Condition reports upon return of § 1160.7 Certificate of national inter- items to lender’s location; est. (6) Security during the exhibition After preliminary review applica- and security during transportation, in- tions for international exhibitions with cluding couriers were applicable; eligible items under § 1160.4 will be sub- (7) Maximum values to be transmitted to the Secretary of State or his ported in a single vehicle of transport. designee for determination of national (g) Insurance arrangements, if any, interest and issuance of a Certificate of which are proposed to cover the de- National Interest. ductible amount provided by law or the excess over the amount indemnified; [56 FR 49848, Oct. 2, 1991. Redesignated at 60 FR 42465, Aug. 16, 1995, and further redesig- (h) Any loss incurred by the nated and amended at 73 FR 21056, Apr. 18, indemnitee or participating institu- 2008] tions during the three years prior to the Application for Indemnification § 1160.8 Indemnity agreement. which involved a borrowed or loaned In cases where the requirements of item(s) or item(s) in their permanent §§ 1160.4 and 1160.5 have been met to the collections where the amount of loss or satisfaction of the Council, an Indem- damage exceeded $5,000. Details should nity Agreement pledging the full faith include the date of loss, nature and and credit of the United States for the cause of damage, and appraised value agreed value of the exhibition in ques- of the damaged items(s) both before tion may be issued to the indemnitee and after loss; by the Council, subject to the provi- (i) If the application is for an exhi- sions of § 1160.7. bition of loans from the United States, which are being shown outside the [56 FR 49848, Oct. 2, 1991. Redesignated at 60 FR 42465, Aug. 16, 1995, and further redesig- United States, the applicant should de- nated at 73 FR 21056, Apr. 18, 2008] scribe in detail the nature of the exchange of exhibitions of which it is a § 1160.9 Letter of intent. part if any, including all circumstances In cases where an exhibition proposed surrounding the exhibition being for indemnification is planned to begin shown in the United States, with par- on a date more than twelve (12) months ticular emphasis on facts concerning after the submission of the application, insurance or indemnity arrangements. the Council, upon approval of such a (j) Upon proper submission of the preliminary application, may provide a above required information an applica- Letter of Intent stating that it will, tion will be selected or rejected for in- subject to the conditions set forth demnification by the Council. The re- therein, issue an Indemnity Agreement view criteria include: prior to commencement of the exhi- (1) Review of educational, cultural, bition. In such cases, the Council will historical, or scientific value as reexamine a final application during the quired under the provisions of the Arts twelve (12) month period prior to the and Artifacts Indemnity Act; date the exhibition is to commence, (2) Certification by the Secretary of and shall, upon being satisfied that State or his designee that the inter- such conditions have been fulfilled, national exhibition with eligible items issue an Indemnity Agreement. under § 1160.4 is in the national interest; and [56 FR 49848, Oct. 2, 1991. Redesignated at 60 FR 42465, Aug. 16, 1995, and further redesig- (3) Review of the availability of in- nated at 73 FR 21056, Apr. 18, 2008] demnity obligational authority under section 5(b) of the Arts and Artifacts § 1160.10 Loss adjustment. Indemnity Act (20 U.S.C. 974). (a) In the event of loss or damage (Approved under OMB control number 3135– covered by an Indemnity Agreement, 0094) the indemnitee without delay shall file [56 FR 49848, Oct. 2, 1991; 56 FR 51842, Oct. 16, a Notice of Loss or Damage with the 1991. Redesignated at 60 FR 42465, Aug. 16, Council and shall exercise reasonable 1995, and further redesignated and amended care in order to minimize the amount at 73 FR 21056, Apr. 18, 2008] of loss. Within a reasonable time after

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a loss has been sustained, the claimant (b) After selection of an arbitrator, shall file a Proof of Loss or Damage on the appraisers shall assess the partial forms provided by the Council. Failure loss, or damage to, or where appro- to report such loss or damage and to priate, any reduction in the fair mar- file such Proof of Loss within sixty (60) ket value of, the indemnified item(s). days after the termination date as de- The appraisers’ agreement with respect fined in § 1160.3(k) shall invalidate any to these issues shall determine the dol- claim under the Indemnity Agreement. lar value of such loss or damage or re- (b) In the event of total loss or de- pair costs, and where appropriate, such struction of an indemnified item, in- reduction in the fair market value. Dis- demnification will be made on the putes between the appraisers with re- basis of the amount specified in the In- spect to partial loss, damage repair demnity Agreement. costs, and fair market value reduction (c) In the event of partial loss, or of any item shall be submitted to the damage, and reduction in the fair mar- arbitrator for determination. The ap- ket value, as a result thereof, to an in- praisers’ agreement or the arbitrator’s demnified item, indemnification will be made on the basis provided for in the determination shall be final and bind- Indemnity Agreement. ing on the parties, and agreement on (d) No loss or damage claim will be amount or such determination on paid in excess of the Indemnification amount shall be certified to the Speak- Limits specified in § 1160.11. er of the House and the President pro tempore of the Senate by the Council. [56 FR 49848, Oct. 2, 1991. Redesignated at 60 (c) Each appraiser shall be paid by FR 42465, Aug. 16, 1995, and further redesignated at 73 FR 21056, Apr. 18, 2008] the party selecting him or her. The arbitrator and all other expenses of the § 1160.11 Certification of claim and appraisal shall be paid by the parties in amount of loss to the Congress. equal shares. Upon receipt of a claim of total loss [56 FR 49848, Oct. 2, 1991. Redesignated at 60 or a claim in which the Council is in FR 42465, Aug. 16, 1995, and further redesig- agreement with respect to the amount nated at 73 FR 21056, Apr. 18, 2008] of partial loss, or damage and reduction in fair market value as a result § 1160.13 Indemnification limits. thereof, the Council shall certify the The dollar amounts of the limits de- validity of the claim and the amount of scribed below are found in the guide- such loss or damage and reduction in lines referred to in § 1160.1 and are fair market value as a result thereof, based upon the statutory limits in the to the Speaker of the House of Rep- Arts and Artifacts Indemnity Act (20 resentatives and the President pro tempore of the Senate. U.S.C. 974). (a) There is a maximum amount of [56 FR 49848, Oct. 2, 1991. Redesignated at 60 loss or damage covered in a single exhi- FR 42465, Aug. 16, 1995, and further redesig- bition or an Indemnity Agreement. nated at 73 FR 21056, Apr. 18, 2008] (b) A sliding scale deductible amount § 1160.12 Appraisal procedures. is applicable to loss or damage arising out of a single exhibition for which an (a) In the event the Council and the indemnity is issued. indemnitee fail to agree on the amount of partial loss, or damage to, or any re- (c) There is an aggregate amount of duction in the fair market value as a loss or damage covered by indemnity result thereof, to the indemnified agreements at any one time. item(s), each shall select a competent (d) The maximum value of eligible appraiser(s) with evidence to be pro- items carried in or upon any single in- vided to show that the indemnitee’s se- strumentality of transportation at any lection is satisfactory to the owner. one time, is established by the Council. The appraiser(s) selected by the Coun- [56 FR 49848, Oct. 2, 1991. Redesignated at 60 cil and the indemnitee shall then select FR 42465, Aug. 16, 1995, and further redesig- a competent and disinterested arbi- nated at 73 FR 21056, Apr. 18, 2008] trator.

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PART 1168—NEW RESTRICTIONS ON Member of Congress in connection with LOBBYING any of the following covered Federal actions: the awarding of any Federal Subpart A—General contract, the making of any Federal grant, the making of any Federal loan, Sec. the entering into of any cooperative 1168.100 Conditions on use of funds. agreement, and the extension, continu- 1168.105 Definitions. 1168.110 Certification and disclosure. ation, renewal, amendment, or modification of any Federal contract, grant, Subpart B—Activities by Own Employees loan, or cooperative agreement. (b) Each person who requests or re- 1168.200 Agency and legislative liaison. ceives from an agency a Federal con- 1168.205 Professional and technical services. 1168.210 Reporting. tract, grant, loan, or cooperative agreement shall file with that agency a Subpart C—Activities by Other Than Own certification, set forth in appendix A, Employees that the person has not made, and will not make, any payment prohibited by 1168.300 Professional and technical services. paragraph (a) of this section. Subpart D—Penalties and Enforcement (c) Each person who requests or receives from an agency a Federal con- 1168.400 Penalties. tract, grant, loan, or a cooperative 1168.405 Penalty procedures. agreement shall file with that agency a 1168.410 Enforcement. disclosure form, set forth in appendix Subpart E—Exemptions B, if such person has made or has agreed to make any payment using 1168.500 Secretary of Defense. nonappropriated funds (to include profits from any covered Federal action), Subpart F—Agency Reports which would be prohibited under para- 1168.600 Semi-annual compilation. graph (a) of this section if paid for with 1168.605 Inspector General report. appropriated funds. APPENDIX A TO PART 1168—CERTIFICATION RE- (d) Each person who requests or re- GARDING LOBBYING ceives from an agency a commitment APPENDIX B TO PART 1168—DISCLOSURE FORM providing for the United States to in- TO REPORT LOBBYING sure or guarantee a loan shall file with AUTHORITY: Sec. 319, Pub. L. 101–121 (31 that agency a statement, set forth in U.S.C. 1352); 20 U.S.C. 959 (a) (1). appendix A, whether that person has SOURCE: 55 FR 6737, 6755, Feb. 26, 1990, un- made or has agreed to make any pay- less otherwise noted. ment to influence or attempt to influ- CROSS REFERENCE: See also Office of Man- ence an officer or employee of any agement and Budget notice published at 54 agency, a Member of Congress, an offi- FR 52306, December 20, 1989. cer or employee of Congress, or an employee of a Member of Congress in con- Subpart A—General nection with that loan insurance or guarantee. § 1168.100 Conditions on use of funds. (e) Each person who requests or re- (a) No appropriated funds may be ex- ceives from an agency a commitment pended by the recipient of a Federal providing for the United States to in- contract, grant, loan, or cooperative sure or guarantee a loan shall file with ageement to pay any person for influ- that agency a disclosure form, set forth encing or attempting to influence an in appendix B, if that person has made officer or employee of any agency, a or has agreed to make any payment to Member of Congress, an officer or em- influence or attempt to influence an of- ployee of Congress, or an employee of a ficer or employee of any agency, a

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Member of Congress, an officer or em- (g) Indian tribe and tribal organization ployee of Congress, or an employee of a have the meaning provided in section 4 Member of Congress in connection with of the Indian Self-Determination and that loan insurance or guarantee. Education Assistance Act (25 U.S.C. 450B). Alaskan Natives are included § 1168.105 Definitions. under the definitions of Indian tribes in For purposes of this part: that Act. (a) Agency, as defined in 5 U.S.C. (h) Influencing or attempting to influ- 552(f), includes Federal executive de- ence means making, with the intent to partments and agencies as well as inde- influence, any communication to or ap- pendent regulatory commissions and pearance before an officer or employee Government corporations, as defined in or any agency, a Member of Congress, 31 U.S.C. 9101(1). an officer or employee of Congress, or (b) Covered Federal action means any an employee of a Member of Congress of the following Federal actions: in connection with any covered Federal (1) The awarding of any Federal con- action. tract; (i) Loan guarantee and loan insurance (2) The making of any Federal grant; means an agency’s guarantee or insur- (3) The making of any Federal loan; ance of a loan made by a person. (4) The entering into of any coopera- (j) Local government means a unit of tive agreement; and, government in a State and, if char- (5) The extension, continuation, re- tered, established, or otherwise recog- newal, amendment, or modification of nized by a State for the performance of any Federal contract, grant, loan, or a governmental duty, including a local cooperative agreement. public authority, a special district, an Covered Federal action does not in- intrastate district, a council of govern- clude receiving from an agency a comments, a sponsor group representative mitment providing for the United organization, and any other instrumen- States to insure or guarantee a loan. tality of a local government. Loan guarantees and loan insurance (k) Officer or employee of an agency in- are addressed independently within cludes the following individuals who this part. are employed by an agency: (c) Federal contract means an acquisi- (1) An individual who is appointed to tion contract awarded by an agency, a position in the Government under including those subject to the Federal title 5, U.S. Code, including a position Acquisition Regulation (FAR), and any under a temporary appointment; other acquisition contract for real or (2) A member of the uniformed serv- personal property or services not sub- ices as defined in section 101(3), title 37, ject to the FAR. U.S. Code; (d) Federal cooperative agreement (3) A special Government employee means a cooperative agreement en- as defined in section 202, title 18, U.S. tered into by an agency. Code; and, (e) Federal grant means an award of (4) An individual who is a member of financial assistance in the form of a Federal advisory committee, as de- money, or property in lieu of money, fined by the Federal Advisory Com- by the Federal Government or a direct mittee Act, title 5, U.S. Code appendix appropriation made by law to any per- 2. son. The term does not include tech- (l) Person means an individual, cor- nical assistance which provides serv- poration, company, association, au- ices instead of money, or other assist- thority, firm, partnership, society, ance in the form of revenue sharing, State, and local government, regard- loans, loan guarantees, loan insurance, less of whether such entity is operated interest subsidies, insurance, or direct for profit or not for profit. This term United States cash assistance to an in- excludes an Indian tribe, tribal organi- dividual. zation, or any other Indian organiza- (f) Federal loan means a loan made by tion with respect to expenditures spe- an agency. The term does not include cifically permitted by other Federal loan guarantee or loan insurance. law.

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(m) Reasonable compensation means, § 1168.110 Certification and disclosure. with respect to a regularly employed (a) Each person shall file a certifi- officer or employee of any person, com- cation, and a disclosure form, if re- pensation that is consistent with the quired, with each submission that ini- normal compensation for such officer tiates agency consideration of such or employee for work that is not fur- person for: nished to, not funded by, or not fur- (1) Award of a Federal contract, nished in cooperation with the Federal grant, or cooperative agreement ex- Government. ceeding $100,000; or (n) Reasonable payment means, with (2) An award of a Federal loan or a respect to perfessional and other tech- commitment providing for the United nical services, a payment in an amount States to insure or guarantee a loan that is consistent with the amount nor- exceeding $150,000. mally paid for such services in the pri- (b) Each person shall file a certifi- vate sector. cation, and a disclosure form, if re- (o) Recipient includes all contractors, quired, upon receipt by such person of: subcontractors at any tier, and sub- (1) A Federal contract, grant, or co- grantees at any tier of the recipient of operative agreement exceeding $100,000; funds received in connection with a or Federal contract, grant, loan, or coop- (2) A Federal loan or a commitment erative agreement. The term excludes providing for the United States to in- an Indian tribe, tribal organization, or sure or guarantee a loan exceeding any other Indian organization with re- $150,000, spect to expenditures specifically per- unless such person previously filed a mitted by other Federal law. certification, and a disclosure form, if (p) Regularly employed means, with required, under paragraph (a) of this respect to an officer or employee of a section. person requesting or receiving a Fed- (c) Each person shall file a disclosure eral contract, grant, loan, or coopera- form at the end of each calendar quar- tive agreement or a commitment pro- ter in which there occurs any event viding for the United States to insure that requires disclosure or that materi- or guarantee a loan, an officer or em- ally affects the accuracy of the infor- ployee who is employed by such person mation contained in any disclosure for at least 130 working days within form previously filed by such person one year immediately preceding the under paragraph (a) or (b) of this section. An event that materially affects date of the submission that initiates the accuracy of the information re- agency consideration of such person for ported includes: receipt of such contract, grant, loan, (1) A cumulative increase of $25,000 or cooperative agreement, loan insurance more in the amount paid or expected to commitment, or loan guarantee com- be paid for influencing or attempting mitment. An officer or employee who is to influence a covered Federal action; employed by such person for less than or 130 working days within one year im- (2) A change in the person(s) or indi- mediately preceding the date of the vidual(s) influencing or attempting to submission that initiates agency con- influence a covered Federal action; or, sideration of such person shall be con- (3) A change in the officer(s), em- sidered to be regularly employed as ployee(s), or Member(s) contacted to soon as he or she is employed by such influence or attempt to influence a person for 130 working days. covered Federal action. (q) State means a State of the United (d) Any person who requests or re- States, the District of Columbia, the ceives from a person referred to in Commonwealth of Puerto Rico, a terri- paragraph (a) or (b) of this section: tory or possession of the United States, (1) A subcontract exceeding $100,000 an agency or instrumentality of a at any tier under a Federal contract; State, and a multi-State, regional, or (2) A subgrant, contract, or sub- interstate entity having governmental contract exceeding $100,000 at any tier duties and powers. under a Federal grant;

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(3) A contract or subcontract exceed- Subpart B—Activities by Own ing $100,000 at any tier under a Federal Employees loan exceeding $150,000; or, (4) A contract or subcontract exceed- § 1168.200 Agency and legislative liai- ing $100,000 at any tier under a Federal son. cooperative agreement, (a) The prohibition on the use of ap- shall file a certification, and a disclo- propriated funds, in § 1168.100 (a), does sure form, if required, to the next tier not apply in the case of a payment of above. reasonable compensation made to an officer or employee of a person request- (e) All disclosure forms, but not cer- ing or receiving a Federal contract, tifications, shall be forwarded from grant, loan, or cooperative agreement tier to tier until received by the person if the payment is for agency and legis- referred to in paragraph (a) or (b) of lative liaison activities not directly re- this section. That person shall forward lated to a covered Federal action. all disclosure forms to the agency. (b) For purposes of paragraph (a) of (f) Any certification or disclosure this section, providing any information form filed under paragraph (e) of this specifically requested by an agency or section shall be treated as a material Congress is allowable at any time. representation of fact upon which all (c) For purposes of paragraph (a) of receiving tiers shall rely. All liability this section, the following agency and arising from an erroneous representa- legislative liaison activities are allow- tion shall be borne solely by the tier able at any time only where they are filing that representation and shall not not related to a specific solicitation for be shared by any tier to which the er- any covered Federal action: roneous representation is forwarded. (1) Discussing with an agency (in- Submitting an erroneous certification cluding individual demonstrations) the or disclosure constitutes a failure to qualities and characteristics of the person’s products or services, conditions file the required certification or disclo- or terms of sale, and service capabili- sure, respectively. If a person fails to ties; and, file a required certification or disclo- (2) Technical discussions and other sure, the United States may pursue all activities regarding the application or available remedies, including those au- adaptation of the person’s products or thorized by section 1352, title 31, U.S. services for an agency’s use. Code. (d) For purposes of paragraph (a) of (g) For awards and commitments in this section, the following agencies and process prior to December 23, 1989, but legislative liaison activities are allow- not made before that date, certifi- able only where they are prior to for- cations shall be required at award or mal solicitation of any covered Federal commitment, covering activities oc- action: curring between December 23, 1989, and (1) Providing any information not the date of award or commitment. specifically requested but necessary for However, for awards and commitments an agency to make an informed deci- in process prior to the December 23, sion about initiation of a covered Fed- 1989 effective date of these provisions, eral action; but not made before December 23, 1989, (2) Technical discussions regarding disclosure forms shall not be required the preparation of an unsolicited pro- at time of award or commitment but posal prior to its official submission; and, shall be filed within 30 days. (3) Capability presentations by per- (h) No reporting is required for an ac- sons seeking awards from an agency tivity paid for with appropriated funds pursuant to the provisions of the Small if that activity is allowable under ei- Business Act, as amended by Pub. L. ther subpart B or C. 95–507 and other subsequent amendments. (e) Only those activities expressly authorized by this section are allowable under this section.

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§ 1168.205 Professional and technical neer providing an engineering analysis services. prior to the preparation or submission (a) The prohibition on the use of ap- of a bid or proposal are not allowable propriated funds, in § 1168.100 (a), does under this section since the engineer is not apply in the case of a payment of providing technical services but not di- reasonable compensation made to an rectly in the preparation, submission officer or employee of a person request- or negotiation of a covered Federal ac- ing or receiving a Federal contract, tion. grant, loan, or cooperative agreement (c) Requirements imposed by or pur- or an extension, continuation, renewal, suant to law as a condition for receiv- amendment, or modification of a Fed- ing a covered Federal award include eral contract, grant, loan, or coopera- those required by law or regulation, or tive agreement if payment is for pro- reasonably expected to be required by fessional or technical services rendered law or regulation, and any other re- directly in the preparation, submis- quirements in the actual award docu- sion, or negotiation of any bid, proposal, or application for that Federal ments. contract, grant, loan, or cooperative (d) Only those services expressly au- agreement or for meeting requirements thorized by this section are allowable imposed by or pursuant to law as a under this section. condition for receiving that Federal contract, grant, loan, or cooperative § 1168.210 Reporting. agreement. No reporting is required with respect (b) For purposes of paragraph (a) of to payments of reasonable compensa- this section, ‘‘professional and tech- tion made to regularly employed offi- nical services’’ shall be limited to ad- cers or employees of a person. vice and analysis directly applying any professional or technical discipline. For example, drafting of a legal docu- Subpart C—Activities by Other ment accompanying a bid or proposal Than Own Employees by a lawyer is allowable. Similarly, technical advice provided by an engi- § 1168.300 Professional and technical neer on the performance or operational services. capability of a piece of equipment ren- (a) The prohibition on the use of ap- dered directly in the negotiation of a propriated funds, in § 1168.100 (a), does contract is allowable. However, com- not apply in the case of any reasonable munications with the intent to influ- payment to a person, other than an of- ence made by a professional (such as a ficer or employee of a person request- licensed lawyer) or a technical person ing or receiving a covered Federal ac- (such as a licensed accountant) are not tion, if the payment is for professional allowable under this section unless or technical services rendered directly they provide advice and analysis di- in the preparation, submission, or ne- rectly applying their professional or gotiation of any bid, proposal, or appli- technical expertise and unless the ad- cation for that Federal contract, grant, vice or analysis is rendered directly loan, or cooperative agreement or for and solely in the preparation, submis- meeting requirements imposed by or sion or negotiation of a covered Fed- eral action. Thus, for example, commu- pursuant to law as a condition for re- nications with the intent to influence ceiving that Federal contract, grant, made by a lawyer that do not provide loan, or cooperative agreement. legal advice or analysis directly and (b) The reporting requirements in solely related to the legal aspects of § 1168.110 (a) and (b) regarding filing a his or her client’s proposal, but gen- disclosure form by each person, if re- erally advocate one proposal over an- quired, shall not apply with respect to other are not allowable under this sec- professional or technical services ren- tion because the lawyer is not pro- dered directly in the preparation, sub- viding professional legal services. mission, or negotiation of any commit- Similarly, communications with the ment providing for the United States intent to influence made by an engi- to insure or guarantee a loan.

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(c) For purposes of paragraph (a) of (f) Only those services expressly au- this section, ‘‘professional and tech- thorized by this section are allowable nical services’’ shall be limited to ad- under this section. vice and analysis directly applying any professional or technical discipline. Subpart D—Penalties and For example, drafting or a legal docu- Enforcement ment accompanying a bid or proposal by a lawyer is allowable. Similarly, § 1168.400 Penalties. technical advice provided by an engi- (a) Any person who makes an expend- neer on the performance or operational iture prohibited herein shall be subject capability of a piece of equipment ren- to a civil penalty of not less than dered directly in the negotiation of a $10,000 and not more than $100,000 for contract is allowable. However, com- each such expenditure. munications with the intent to influ- (b) Any person who fails to file or ence made by a professional (such as a amend the disclosure form (see appen- licensed lawyer) or a technical person dix B) to be filed or amended if re- (such as a licensed accountant) are not quired herein, shall be subject to a civil allowable under this section unless penalty of not less than $10,000 and not they provide advice and analysis di- more than $100,000 for each such fail- rectly applying their professional or ure. technical expertise and unless the ad- (c) A filing or amended filing on or vice or analysis is rendered directly after the date on which an administra- and solely in the preparation, submis- tive action for the imposition of a civil sion or negotiation of a covered Fed- penalty is commenced does not prevent eral action. Thus, for example, commu- the imposition of such civil penalty for nications with the intent to influence a failure occurring before that date. An made by a lawyer that do not provide administrative action is commenced legal advice or analysis directly and with respect to a failure when an inves- solely related to the legal aspects of tigating official determines in writing his or her client’s proposal, but gen- to commence an investigation of an al- erally advocate one proposal over an- legation of such failure. other are not allowable under this sec- (d) In determining whether to impose tion because the lawyer is not pro- a civil penalty, and the amount of any viding professional legal services. such penalty, by reason of a violation Similarly, communications with the by any person, the agency shall con- intent to influence made by an engi- sider the nature, circumstances, ex- neer providing an engineering analysis tent, and gravity of the violation, the prior to the preparation or submission effect on the ability of such person to of a bid or proposal are not allowable continue in business, any prior violations by such person, the degree of cul- under this section since the engineer is pability of such person, the ability of providing technical services but not di- the person to pay the penalty, and such rectly in the preparation, submission other matters as may be appropriate. or negotiation of a covered Federal ac- (e) First offenders under paragraph tion. (a) or (b) of this section shall be subject (d) Requirements imposed by or pur- to a civil penalty of $10,000, absent ag- suant to law as a condition for receiv- gravating circumstances. Second and ing a covered Federal award include subsequent offenses by persons shall be those required by law or regulation, or subject to an appropriate civil penalty reasonably expected to be required by between $10,000 and $100,000, as deter- law or regulation, and any other re- mined by the agency head or his or her quirements in the actual award docu- designee. ments. (f) An imposition of a civil penalty (e) Persons other than officers or em- under this section does not prevent the ployees of a person requesting or re- United States from seeking any other ceiving a covered Federal action in- remedy that may apply to the same clude consultants and trade associa- conduct that is the basis for the impo- tions. sition of such civil penalty.

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§ 1168.405 Penalty procedures. the House of Representatives, and the Agencies shall impose and collect Committees on Appropriations of the civil penalties pursuant to the provi- Senate and the House of Representa- sions of the Program Fraud and Civil tives in accordance with procedures Remedies Act, 31 U.S.C. sections 3803 agreed to by such committees. Such in- (except subsection (c)), 3804, 3805, 3806, formation shall not be available for 3807, 3808, and 3812, insofar as these pro- public inspection. (d) Information that is classified visions are not inconsistent with the under Executive Order 12356 or any suc- requirements herein. cessor order shall be reported only to § 1168.410 Enforcement. the Committee on Foreign Relations of the Senate and the Committee on For- The head of each agency shall take eign Affairs of the House of Represent- such actions as are necessary to ensure atives or the Committees on Armed that the provisions herein are vigor- Services of the Senate and the House of ously implemented and enforced in Representatives (whichever such com- that agency. mittees have jurisdiction of matters involving such information) and to the Subpart E—Exemptions Committees on Appropriations of the Senate and the House of Representa- § 1168.500 Secretary of Defense. tives in accordance with procedures (a) The Secretary of Defense may ex- agreed to by such committees. Such in- empt, on a case-by-case basis, a cov- formation shall not be available for ered Federal action from the prohibi- public inspection. tion whenever the Secretary deter- (e) The first semi-annual compilation mines, in writing, that such an exemp- shall be submitted on May 31, 1990, and tion is in the national interest. The shall contain a compilation of the dis- Secretary shall transmit a copy of each closure reports received from Decem- such written exemption to Congress ber 23, 1989 to March 31, 1990. immediately after making such a de- (f) Major agencies, designated by the termination. Office of Management and Budget (b) The Department of Defense may (OMB), are required to provide ma- issue supplemental regulations to im- chine-readable compilations to the plement paragraph (a) of this section. Secretary of the Senate and the Clerk of the House of Representatives no Subpart F—Agency Reports later than with the compilations due on May 31, 1991. OMB shall provide de- § 1168.600 Semi-annual compilation. tailed specifications in a memorandum (a) The head of each agency shall col- to these agencies. lect and compile the disclosure reports (g) Non-major agencies are requested (see appendix B) and, on May 31 and to provide machine-readable compila- November 30 of each year, submit to tions to the Secretary of the Senate the Secretary of the Senate and the and the Clerk of the House of Rep- Clerk of the House of Representatives a resentatives. report containing a compilation of the (h) Agencies shall keep the originals information contained in the disclo- of all disclosure reports in the official sure reports received during the six- files of the agency. month period ending on March 31 or September 30, respectively, of that § 1168.605 Inspector General report. year. (a) The Inspector General, or other (b) The report, including the com- official as specified in paragraph (b) of pilation, shall be available for public this section, of each agency shall pre- inspection 30 days after receipt of the pare and submit to Congress each year, report by the Secretary and the Clerk. commencing with submission of the (c) Information that involves intel- President’s Budget in 1991, an evalua- ligence matters shall be reported only tion of the compliance of that agency to the Select Committee on Intel- with, and the effectiveness of, the re- ligence of the Senate, the Permanent quirements herein. The evaluation may Select Committee on Intelligence of include any recommended changes that

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may be necessary to strengthen or im- to any person for influencing or attempting prove the requirements. to influence an officer or employee of any (b) In the case of an agency that does agency, a Member of Congress, an officer or not have an Inspector General, the employee of Congress, or an employee of a agency official comparable to an In- Member of Congress in connection with this Federal contract, grant, loan, or cooperative spector General shall prepare and sub- agreement, the undersigned shall complete mit the annual report, or, if there is no and submit Standard Form-LLL, ‘‘Disclosure such comparable official, the head of Form to Report Lobbying,’’ in accordance the agency shall prepare and submit with its instructions. the annual report. (3) The undersigned shall require that the (c) The annual report shall be sub- language of this certification be included in mitted at the same time the agency the award documents for all subawards at all submits its annual budget justifica- tiers (including subcontracts, subgrants, and tions to Congress. contracts under grants, loans, and coopera- (d) The annual report shall include tive agreements) and that all subrecipients the following: All alleged violations re- shall certify and disclose accordingly. lating to the agency’s covered Federal This certification is a material representa- actions during the year covered by the tion of fact upon which reliance was placed report, the actions taken by the head when this transaction was made or entered into. Submission of this certification is a of the agency in the year covered by prerequisite for making or entering into this the report with respect to those alleged transaction imposed by section 1352, title 31, violations and alleged violations in U.S. Code. Any person who fails to file the previous years, and the amounts of required certification shall be subject to a civil penalties imposed by the agency civil penalty of not less than $10,000 and not in the year covered by the report. more than $100,000 for each such failure.

APPENDIX A TO PART 1168— Statement for Loan Guarantees and Loan CERTIFICATION REGARDING LOBBYING Insurance

Certification for Contracts, Grants, Loans, and The undersigned states, to the best of his Cooperative Agreements or her knowledge and belief, that: If any funds have been paid or will be paid The undersigned certifies, to the best of his to any person for influencing or attempting or her knowledge and belief, that: to influence an officer or employee of any (1) No Federal appropriated funds have agency, a Member of Congress, an officer or been paid or will be paid, by or on behalf of employee of Congress, or an employee of a the undersigned, to any person for influ- Member of Congress in connection with this encing or attempting to influence an officer or employee of an agency, a Member of Con- commitment providing for the United States gress, an officer or employee of Congress, or to insure or guarantee a loan, the under- an employee of a Member of Congress in con- signed shall complete and submit Standard nection with the awarding of any Federal Form-LLL, ‘‘Disclosure Form to Report Lob- contract, the making of any Federal grant, bying,’’ in accordance with its instructions. the making of any Federal loan, the entering Submission of this statement is a pre- into of any cooperative agreement, and the requisite for making or entering into this extension, continuation, renewal, amend- transaction imposed by section 1352, title 31, ment, or modification of any Federal con- U.S. Code. Any person who fails to file the tract, grant, loan, or cooperative agreement. required statement shall be subject to a civil (2) If any funds other than Federal appro- penalty of not less than $10,000 and not more priated funds have been paid or will be paid than $100,000 for each such failure.

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APPENDIX B TO PART 1168—DISCLOSURE FORM TO REPORT LOBBYING

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PART 1170—NONDISCRIMINATION Subpart A—General Provisions ON THE BASIS OF HANDICAP IN FEDERALLY ASSISTED PROGRAMS § 1170.1 Purpose. OR ACTIVITIES The purpose of this part is to implement section 504 of the Rehabilitation Subpart A—General Provisions Act of 1973, which is designed to eliminate discrimination on the basis of Sec. handicap in any program or activity 1170.1 Purpose. receiving Federal financial assistance. 1170.2 Application. 1170.3 Definitions. § 1170.2 Application. 1170.4 Effect of State or local law or other requirements and effect of employment This part applies to each recipient of opportunities. Federal financial assistance from the 1170.5–1170.10 [Reserved] National Endowment for the Human- ities and to each program or activity Subpart B—Discrimination Prohibited that receives such assistance. 1170.11 General prohibition against dis- [46 FR 55897, Nov. 12, 1981, as amended at 68 crimination. FR 51386, Aug. 26, 2003] 1170.12 Discriminatory actions prohibited. 1170.13 Illustrative examples. § 1170.3 Definitions. 1170.14–1170.20 [Reserved] As used in this part: Subpart C—Employment Practices (a) Section 504 means section 504 of the Rehabilitation Act of 1973, Pub. L. 1170.21 Discrimination prohibited. 1170.22 Reasonable accommodation. 93–112, as amended by the Rehabilita- 1170.23 Employment criteria. tion Act Amendments of 1974, Pub. L. 1170.24 Preemployment inquiries. 93–516, 29 U.S.C. 794 et seq. by the Reha- 1170.25–1170.30 [Reserved] bilitation, Comprehensive Services De- velopmental Disabilities Amendments Subpart D—Accessibility of 1978, Pub. L. 95–602, and by the Civil 1170.31 Discrimination prohibited. Rights Restoration Act of 1987, Pub. L. 1170.32 Existing facilities. 100–259. 1170.33 New construction. (b) The term Endowment or the term 1170.34 Historic properties. [Reserved] agency means the National Endowment 1170.35–1170.40 [Reserved] for the Humanities. (c) The term Chairman means the Subpart E—Postsecondary Education Chairman of the National Endowment 1170.41 Application of this subpart. for the Humanities. 1170.42 Admissions and recruitment. (d) The term responsible Endowment 1170.43 Treatment of students; general. official with respect to any program or 1170.44 Academic adjustments. activity receiving Federal financial as- 1170.45 Housing. sistance means the Chairman of the 1170.46 Financial and employment assistance to students. Endowment, the Director of the Office 1170.47 Nonacademic services. of Equal Employment Opportunity, or 1170.48–1170.50 [Reserved] other Endowment official designated by the Chairman. Subpart F—Enforcement (e) The term United States means the 1170.51 Assurances required. States of the United States, the Dis- 1170.52 Remedial action, voluntary action, trict of Columbia, Puerto Rico, the and self-evaluation. Virgin Islands, American Samoa, 1170.53 Designation of responsible employee Guam, the Northern Mariana Islands, and adoption of grievance procedures. Wake Island, the Canal Zone, and the 1170.54 Notice. territories and possessions of the 1170.55 Endowment enforcement and com- United States, and the term State pliance procedures. means any one of the foregoing. 1170.56–1170.99 [Reserved] (f) Federal financial assistance means AUTHORITY: 29 U.S.C. 794. any grant, loan, contract (other than a SOURCE: 46 FR 55897, Nov. 12, 1981, unless procurement contract or a contract of otherwise noted. insurance or guaranty), or any other

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arrangement by which the agency pro- (4) Any other entity which is estab- vides or otherwise makes available as- lished by two or more of the entities sistance in the form of: described in paragraph (g)(1), (2), or (3) (1) Funds; of this section. (2) Services of Federal personnel; or (h) Facility means all or any portion (3) Real and personal property or any of buildings, structures, equipment, interest in or use of such property, in- roads, walks, parking lots, or other cluding: real or personal property or interest in (i) Transfers or leases of such prop- such property. erty for less than fair market value or (i) Recipient means any state or its for reduced consideration; and political subdivision, any instrumen- (ii) Proceeds from a subsequent tality of a state or its political subdivi- transfer or lease of such property if the sion, any public or private agency, in- Federal share of its fair market value stitution, organization, or other enti- is not returned to the Federal govern- ty, or any person to which Federal fi- ment. nancial assistance is extended directly or through another recipient, including (g) The term program or activity any successor, assignee, or transferee means all of the operations of any enti- of a recipient, but excluding the ulti- ty described in paragraphs (g)(1) mate beneficiary of the assistance. through (4) of this section, any part of (j) Handicapped person means any per- which is extended Federal financial as- son who has a physical or mental im- sistance: pairment that substantially limits one (1)(i) A department, agency, special or more major life activities, has a purpose district, or other instrumen- record of such an impairment, or is re- tality of a State or of a local govern- garded as having such an impairment. ment; or For purposes of section 504, in connec- (ii) The entity of such State or local tion with employment, this term does government that distributes such as- not include any individual who is an al- sistance and each such department or coholic or drug abuser whose current agency (and each other State or local use of alcohol or drugs prevents such government entity) to which the as- individual from performing the duties sistance is extended, in the case of as- of the job in question or whose employ- sistance to a State or local government, by reason of such current alco- ment; hol or drug abuse, would constitute a (2)(i) A college, university, or other direct threat to the property or the postsecondary institution, or a public safety of others. As used in this para- system of higher education; or graph, the phrase: (ii) A local educational agency (as de- (1) Physical or mental impairment fined in 20 U.S.C. 7801), system of voca- means: tional education, or other school sys- (i) Any physiological disorder or con- tem; dition, cosmetic disfigurement, or ana- (3)(i) An entire corporation, partner- tomical loss affecting one or more of ship, or other private organization, or the following body systems: Neuro- an entire sole proprietorship— logical; musculoskeletal; special sense (A) If assistance is extended to such organs; respiratory, including speech corporation, partnership, private orga- organs; cardiovascular; reproductive; nization, or sole proprietorship as a digestive; genitourinary; hemic and whole; or lymphatic; skin; and endocrine; or (B) Which is principally engaged in (ii) Any mental or psychological dis- the business of providing education, order, such as mental retardation, or- health care, housing, social services, or ganic brain syndrome, emotional or parks and recreation; or mental illness, and specific learning (ii) The entire plant or other com- disabilities. The term physical or mental parable, geographically separate facil- impairment includes, but is not limited ity to which Federal financial assist- to, such diseases and conditions as or- ance is extended, in the case of any thopedic, visual, speech, and hearing other corporation, partnership, private impairments, cerebral palsy, epilepsy, organization, or sole proprietorship; or muscular dystrophy, multiple sclerosis,

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cancer, heart disease, diabetes, mental or limits upon the eligibility of quali- retardation, emotional illness, and fied handicapped persons to receive drug addiction and alcoholism. services or to practice any occupation (2) Major life activities means func- or profession. tions such as caring for one’s self, per- (b) The obligation to comply with forming manual tasks, walking, seeing, this part is not obviated or alleviated hearing, speaking, breathing, learning, because employment opportunities in and working. any occupation or profession are or (3) Has a record of such impairment may be more limited for handicapped means has a history of, or has been persons than for nonhandicapped per- misclassified as having, a mental or sons. physical impairment that substantially limits one or more major life activi- §§ 1170.5–1170.10 [Reserved] ties. (4) Is regarded as having an impairment Subpart B—Discrimination means Prohibited (i) Has a physical or mental impairment that does not substantially limit § 1170.11 General prohibition against major life activities but is treated by a discrimination. recipient as constituting such a limita- No qualified handicapped person tion; shall, on the basis of handicap, be ex- (ii) Has a physical or mental impair- cluded from participation in, be denied ment that substantially limits major the benefits of, or otherwise be sub- life activities only as a result of the at- jected to discrimination under any pro- titudes of others toward such impair- gram or activity that receives Federal ment; or financial assistance. (iii) Has none of the impairments defined in paragraph (j)(1) of this section [46 FR 55897, Nov. 12, 1981, as amended at 68 but is treated by a recipient as having FR 51386, Aug. 26, 2003] such an impairment. (k) Qualified handicapped person § 1170.12 Discriminatory actions pro- means: hibited. (1) With respect to employment, a (a) A recipient, in providing any aid, handicapped person who, with reason- benefit, or service, may not, directly or able accommodation, can perform the through contractual, licensing, or essential functions of the job in ques- other arrangements, on the basis of tion and handicap: (2) With respect to postsecondary and (1) Deny a qualified handicapped per- vocational education services, a handi- son the opportunity to participate in capped person who meets the academic or benefit from the aid, benefit, or and technical standards requisite to service; admission or participation in the re- (2) Afford a qualified handicapped cipient’s education program or activ- person an opportunity to participate in ity; or benefit from the aid, benefit, or (3) With respect to services, a handi- service that is not equal to that af- capped person who meets the essential forded others; eligibility requirements for the receipt (3) Provide a qualified handicapped of such services. person with an aid, benefit, or service [46 FR 55897, Nov. 12, 1981, as amended at 68 that is not as effective in affording FR 51386, Aug. 26, 2003] equal opportunity to obtain the same result, to gain the same benefit, or to § 1170.4 Effect of State or local law or reach the same level of achievement as other requirements and effect of that provided to others; employment opportunities. (4) Provide different or separate aid, (a) The obligation to comply with benefits, or services to handicapped this part is not obviated or alleviated persons or to any class of handicapped by the existence of any state or local persons than is provided to others unlaw or other requirement that, on the less such action is necessary to provide basis of handicap, imposes prohibitions qualified handicapped persons with aid,

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benefits, or services that are as effec- limited by Federal statute or executive tive as those provided to others; order to handicapped persons or the ex- (5) Aid or perpetuate discrimination clusion of a specific class of handi- against a qualified handicapped person capped persons from aid, benefits, or by providing significant assistance to services limited by Federal statute or an agency, organization, or person that executive order to a different class of discriminates on the basis of handicap handicapped persons is not prohibited in providing any aid, benefit, or service by this part. to beneficiaries of the recipient’s pro- (f) Recipients shall administer program or activity; grams or activities in the most inte- (6) Deny a qualified handicapped per- grated setting appropriate to the needs son the opportunity to participate as a of qualified handicapped persons. member of planning or advisory boards; (g) Recipients shall take appropriate or steps to ensure that communications (7) Otherwise limit a qualified handi- with their applicants, employees, and capped person in the enjoyment of any beneficiaries are available to persons right, privilege, advantage, or oppor- with impaired vision and hearing. tunity enjoyed by others receiving the [46 FR 55897, Nov. 12, 1981, as amended at 68 aid, benefit, or service. FR 51386, Aug. 26, 2003] (b) A recipient may not deny a qualified handicapped person the oppor- § 1170.13 Illustrative examples. tunity to participate in aid, benefits, (a) The following examples will illus- or services that are not separate or dif- trate the application of the foregoing ferent, despite the existence of permis- provisions to some of the activities sibly separate or different aid, benefits, funded by the National Endowment for or services. the Humanities. (c) A recipient may not, directly or (1) A publication or a museum cata- through contractual or other arrange- logue supported by the Endowment ments, utilize criteria or methods of may be made usable by the blind and administration. the visually impaired through cassette (1) that have the effect of subjecting tapes, records, discs, braille, readers qualified handicapped persons to dis- and simultaneous publications. crimination on the basis of handicap, (2) A lecture, meeting or symposium (2) that have the purpose or effect of supported by Federal funds may be defeating or substantially impairing made available to deaf and hearing im- accomplishment of the objectives of paired persons through the use of a the recipient’s program or activity sign language interpreter or by pro- with respect to handicapped persons, or viding scripts in advance of the per- (3) that perpetuate the discrimina- formance. tion of another recipient if both recipi- (3) Specific aid, benefits, or services ents are subject to common adminis- supported by Federal funds may be of- trative control or are agencies of the fered in an inaccessible facility pro- same state. vided that the same aid, benefit, or (d) A recipient may not, in deter- service is also offered to the public at mining the site or location of a facil- large in an accessible space. ity, make selections (4) A qualified handicapped person is (1) that have the effect of excluding one who is able to meet all require- handicapped persons from, denying ments in spite of his handicap. An edu- them the benefits of, or otherwise sub- cational institution is not required to jecting them to discrimination under disregard the disabilities of handi- any program or activity that receives capped individuals or to lower or to Federal financial assistance or make substantial modifications of (2) that have the purpose or effect of standards to accommodate a handi- defeating or substantially impairing capped person. the accomplishment of the objectives (b) State humanities committees are of the program or activity with respect obligated to develop methods of admin- to handicapped persons. istering Federal funds so as to ensure (e) The exclusion of nonhandicapped that handicapped persons are not sub- persons from aid, benefits, or services jected to discrimination on the basis of

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handicap either by sub-grantees or by nizations providing or administering the manner in which the funds are dis- fringe benefits to employees of the re- tributed. cipient, and with organizations pro- (c) In the event Endowment funds are viding training and apprenticeships. utilized to construct, expand, alter, (d) Specific activities. The provisions lease or rent a facility, the benefits of of this subpart apply to: the program or activity provided in or (1) Recruitment, advertising, and the through that facility must be con- processing of applications for employ- ducted in accordance with these regu- ment; lations, e.g., a museum receiving a (2) Hiring, upgrading, promotion, grant to renovate an existing facility award of tenure, demotion, transfer, must assure that all museum aid, bene- layoff, termination, right of return fits, or services conducted in that facil- from layoff and rehiring; ity are accessible to handicapped per- (3) Rates of pay or any other form of sons. compensation and changes in com- (d) In carrying out the mandate of pensation; section 504 and these implementing (4) Job assignments, job classifica- regulations recipients should admin- tions, organizational structures, posi- ister Endowment assisted programs or tion descriptions, lines of progression, activities in the most integrated set- and seniority lists; ting appropriate, e.g., tours made (5) Leaves of absence, sick leave, or available to the hearing impaired any other leave; should be open to the public at large (6) Fringe benefits available by vir- and everyone should be permitted to tue of employment, whether or not ad- enjoy the benefits of a tactile experi- ministered by the recipient; ence in a museum. (7) Selection and financial support [46 FR 55897, Nov. 12, 1981, as amended at 68 for training, including apprenticeship, FR 51386, Aug. 26, 2003] professional meetings, conferences, and other related activities, and selection §§ 1170.14–1170.20 [Reserved] for leaves of absence to pursue training; Subpart C—Employment Practices (8) Employer sponsored activities, including those that are social or rec- § 1170.21 Discrimination prohibited. reational; and (a) General. No qualified handicapped (9) Any other term, condition, or person shall, on the basis of handicap, privilege of employment. be subjected to discrimination in em- (e) A recipient’s obligation to comply ployment under any program or activ- with this subpart is not affected by any ity that receives Federal financial as- inconsistent term of any collective sistance. bargaining agreement to which it is a (b) A recipient shall make all deci- party. sions concerning employment under any program or activity to which this [46 FR 55897, Nov. 12, 1981, as amended at 68 part applies in a manner which ensures FR 51386, Aug. 26, 2003] that discrimination on the basis of handicap does not occur and may not § 1170.22 Reasonable accommodation. limit, segregate, or classify applicants (a) A recipient shall make reasonable or employees in any way that ad- accommodation to the known physical versely affects their opportunities or or mental limitations of an otherwise status because of handicap. qualified handicapped applicant or em- (c) A recipient may not participate in ployee unless the recipient can dem- a contractual or other relationship onstrate that the accommodation that has the effect of subjecting quali- would impose an undue hardship on the fied handicapped applicants or employ- operation of its program or activity. ees to discrimination prohibited by (b) Reasonable accommodation may this subpart. The relationships referred include: to in this paragraph include relation- (1) Making facilities used by employ- ships with employment and referral ees readily accessible to and usable by agencies, with labor unions, with orga- handicapped persons, and

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(2) Job restructuring, part-time or (b) If a recipient is taking remedial modified work schedules, acquisition action to correct the effects of past dis- or modification of equipment or de- crimination, if a recipient is taking vices, the provision of readers or inter- voluntary action to overcome the ef- preters, and other similar actions. fects of conditions that resulted in lim- (c) In determining pursuant to para- ited participation in its federally as- graph (a) of this section whether an ac- sisted program or activity, or if a re- commodation would impose an undue cipient is taking affirmative action hardship on the operation of a recipi- under section 503 of the Rehabilitation ent’s program or activity, factors to be Act, the recipient may invite appli- considered include: cants for employment to indicate (1) The overall size of the recipient’s whether and to what extent they are program or activity with respect to handicapped, provided, that: number of employees, number and type (1) The recipient states clearly on of facilities, and size of budget; any written questionnaire used for this (2) The type of the recipient’s oper- purpose or makes clear orally if no ation, including the composition and written questionnaire is used that the structure of the recipient’s workforce; information requested is intended for and use solely in connection with its reme- (3) The nature and cost of the accom- dial action obligations or its voluntary modation needed. or affirmative action efforts; and [46 FR 55897, Nov. 12, 1981, as amended at 68 (2) The recipient states clearly that FR 51386, Aug. 26, 2003] the information is being requested on a § 1170.23 Employment criteria. voluntary basis, that it will be kept confidential as provided in paragraph (a) A recipient may not make use of (d) of this section, that refusal to pro- any employment test or other selection vide it will not subject the applicant or criterion that screens out or tends to employee to any adverse treatment, screen out handicapped persons or any and that it will be used only in accord- class of handicapped persons unless: ance with this part. (1) The test score or other selection (c) Nothing in this section shall pro- criterion, as used by the recipient, is hibit a recipient from conditioning an shown to be job-related for the position in question; and offer of employment on the results of a (2) Alternative job-related tests or medical examination conducted prior criteria are unavailable. to the employee’s entrance on duty, (b) A recipient shall select and ad- provided, that: minister tests concerning employment (1) All entering employees are sub- so as best to ensure that, when admin- jected to such an examination regard- istered to an applicant or employee less of handicap; and who has a handicap that impairs sen- (2) The results of such an examina- sory, manual, or speaking skills, the tion are used only in accordance with test results accurately reflect the ap- the requirements of this part. plicant’s or employee’s job skills, apti- (d) Information obtained in accord- tude, or other factors relevant to ade- ance with this section as to the med- quate performance of the job in ques- ical condition or history of the appli- tion. cant shall be collected and maintained on separate forms that shall be ac- § 1170.24 Preemployment inquiries. corded confidentiality as medical (a) A recipient may not, except as records, except that: provided below, conduct a preemploy- (1) Supervisors and managers may be ment medical examination, make pre- informed regarding restrictions on the employment inquiry as to whether the work or duties of handicapped persons applicant is a handicapped person, or and regarding necessary accommoda- inquire as to the nature or severity of tions; a handicap. A recipient may, however, (2) First aid and safety personnel make preemployment inquiry into an may be informed, where appropriate, if applicant’s ability to perform job-re- the condition might require emergency lated functions. treatment; and

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(3) Government officials inves- fective date of this part, but in any tigating compliance with the Act shall event as expeditiously as possible. be provided relevant information upon (d) Transition plan. In the event that request. structural changes to facilities are necessary to meet the requirement of §§ 1170.25–1170.30 [Reserved] paragraph (a) of this section, a recipient shall develop, within one year of Subpart D—Accessibility the effective date of this part, a transition plan setting forth the steps nec- § 1170.31 Discrimination prohibited. essary to complete such changes. The No qualified handicapped person plan shall be developed with the assist- shall, because recipient’s facilities are ance of interested persons, including inaccessible to or unusable by handi- handicapped persons or organizations capped persons, be denied the benefits representing handicapped persons. A of, be excluded from participation in, copy of the transition plan shall be or otherwise be subjected to discrimi- made available upon request for public nation under any program or activity inspection. The plan shall, at a min- to which this part applies. imum: (1) Identify physical obstacles in the § 1170.32 Existing facilities. recipient’s facilities that limit the ac- (a) Accessibility. A recipient shall op- cessibility of its program or activity to erate each program or activity to handicapped persons; which this part applies so that when (2) Describe in detail the methods each part is viewed in its entirety it is that will be used to make the facilities readily accessible to handicapped per- accessible; sons. This paragraph does not nec- (3) Specify the schedule for taking essarily require a recipient to make the steps necessary to achieve full ac- each of its existing facilities or every cessibility under paragraph (a) of this part of a facility accessible to and usa- section and, if the time period of the ble by handicapped persons. transition plan is longer than one year, (b) Methods. A recipient may comply identify the steps that will be taken with the requirements of paragraph (a) during each year of the transition pe- of this section through such means as riod; and redesign of equipment, reassignment of (4) Indicate the person responsible for classes or other services to accessible implementation of the plan. buildings, alteration of existing facili- (e) Notice. The recipient shall adopt ties and construction of new facilities and implement procedures to ensure in conformance with the requirements that interested persons, including per- of § 1170.33, or any other methods that sons with impaired vision or hearing result in making its program or activ- can obtain information as to the exist- ity accessible to handicapped persons. ence and location of services, activi- A recipient is not required to make ties, and facilities that are accessible structural changes in existing facilities to and usable by handicapped persons. where other methods are effective in achieving compliance with paragraph [46 FR 55897, Nov. 12, 1981, as amended at 68 (a) of this section. In choosing among FR 51386, Aug. 26, 2003] available methods for meeting the requirement of paragraph (a) of this sec- § 1170.33 New construction. tion, a recipient shall give priority to (a) Design, construction, and alteration. those methods that serve handicapped New facilities shall be designed and persons in the most integrated setting constructed to be readily accessible to appropriate. and usable by handicapped persons. Al- (c) Time period. A recipient shall com- terations to existing facilities shall, to ply with the requirement of paragraph the maximum extent feasible, be de- (a) of this section within sixty days of signed and constructed to be readily the effective date of this part except accessible to and usable by handi- that where structural changes in facili- capped persons. ties are necessary, such changes shall (b) Conformance with Uniform Federal be made within three years of the ef- Accessibility Standards. (1) Effective as

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of January 18, 1991, design, construc- or recruitment by a recipient to which tion, or alteration of buildings in con- this subpart applies. formance with sections 3-8 of the Uni- (b) Admissions. In administering its form Federal Accessibility Standards admission policies, a recipient to which (USAF) (appendix A to 41 CFR subpart this subpart applies: 101–19.6) shall be deemed to comply (1) May not apply limitations upon with the requirements of this section the number or proportion of handi- with respect to those buildings. Depar- capped persons who may be admitted; tures from particular technical and (2) May not make use of any test or scoping requirements of UFAS by the criterion for admission that has a dis- use of other methods are permitted proportionate, adverse effect on handi- where substantially equivalent or capped persons or any class of handi- greater access to and usability of the capped persons unless building is provided. (i) The test or criterion, as used by (2) For purposes of this section, section 4.1.6(1)(g) of UFAS shall be inter- the recipient, has been validated as a preted to exempt from the require- predictor of success in the education ments of UFAS only mechanical rooms program or activity in question and and other spaces that, because of their (ii) Alternate tests or criteria that intended use, will not require accessi- have a less disproportionate, adverse bility to the public or beneficiaries or effect are not shown by the Chairman result in the employment or residence to be available. therein of persons with physical handi- (3) Shall assure itself that: caps. (i) Admissions tests are selected and (3) This section does not require re- administered so as best to ensure that, cipients to make building alterations when a test is administered to an appli- that have little likelihood of being ac- cant who has a handicap that impairs complished without removing or alter- sensory, manual, or speaking skills, ing a load-bearing structural member. the test results accurately reflect the applicant’s aptitude or achievement [46 FR 55897, Nov. 12, 1981, as amended at 55 FR 52138, 52142, Dec. 19, 1990] level or whatever other factor the test purports to measure, rather than re- § 1170.34 Historic properties. [Re- flecting the applicant’s impaired sen- served] sory, manual, or speaking skills (except where those skills are the factors §§ 1170.35–1170.40 [Reserved] that the test purports to measure); (ii) Admissions tests that are de- Subpart E—Postsecondary signed for persons with impaired sen- Education sory, manual, or speaking skills are offered as often and in as timely a man- § 1170.41 Application of this subpart. ner as are other admissions tests; and Subpart E applies to postsecondary (iii) Admissions tests are adminis- education programs or activities, in- tered in facilities that, on the whole, cluding postsecondary vocational edu- are accessible to handicapped persons; cation programs or activities, that re- and ceive Federal financial assistance and (4) Except as provided in paragraph to recipients that operate, or that re- (c) of this section, may not make ceive Federal financial assistance for preadmission inquiry as to whether an the operation of, such programs or ac- applicant for admission is a handi- tivities. capped person but, after admission, [46 FR 55897, Nov. 12, 1981, as amended at 68 may make inquiries on a confidential FR 51386, Aug. 26, 2003] basis as to handicaps that may require accommodation. § 1170.42 Admissions and recruitment. (c) Preadmission inquiry exception. (a) General. Qualified handicapped When a recipient is taking remedial ac- persons may not, on the basis of handi- tion to correct the effects of past dis- cap, be denied admission or be sub- crimination pursuant to § 1170.52(a) or jected to discrimination in admission when a recipient is taking voluntary

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action to overcome the effects of condi- (c) A recipient to which this subpart tions that resulted in limited partici- applies may not, on the basis of handi- pation in its federally assisted program cap, exclude any qualified handicapped or activity pursuant to § 1170.52(b), the student from any course, course of recipient may invite applicants for ad- study, or other part of its education mission to indicate whether and to program or activity. what extent they are handicapped, pro- (d) A recipient to which this subpart vided, that: applies shall operate its program or ac- (1) The recipient states clearly on tivity in the most integrated setting any written questionnaire used for this appropriate. purpose or makes clear orally if no written questionnaire is used that the [46 FR 55897, Nov. 12, 1981, as amended at 68 FR 51386, Aug. 26, 2003] information requested is intended for use solely in connection with its reme- § 1170.44 Academic adjustments. dial action obligations or its voluntary action efforts; and (a) Academic requirements. A recipient (2) The recipient states clearly that to which this subpart applies shall the information is being requested on a make such modifications to its aca- voluntary basis, that it will be kept demic requirements as are necessary to confidential, that refusal to provide it ensure that such requirements do not will not subject the applicant to any discriminate or have the effect of dis- adverse treatment, and that it will be criminating, on the basis of handicap, used only in accordance with this part. against a qualified handicapped appli- (d) Validity studies. For the purpose of cant or student. Academic require- paragraph (b)(2) of this section, a re- ments that the recipient can dem- cipient may base prediction equations onstrate are essential to the instruc- on first year grades, but shall conduct tion being pursued by such student or periodic validity studies against the to any directly related licensing re- criterion of overall success in the edu- quirement will not be regarded as dis- cation program or activity in question criminatory within the meaning of this in order to monitor the general valid- section. Modifications may include ity of the test scores. changes in the length of time permitted for the completion of degree re- § 1170.43 Treatment of students; gen- quirements, substitution of specific eral. courses required for the completion of (a) No qualified handicapped student degree requirements, and adaptation of shall, on the basis of handicap, be ex- the manner in which specific courses cluded from participation in, be denied are conducted. the benefits of, or otherwise be sub- (b) Other rules. A recipient to which jected to discrimination under any aca- this subpart applies may not impose demic, research, occupational training, upon handicapped students other rules, housing, health insurance, counseling, such as the prohibitation of tape re- financial aid, physical education, ath- corders in classrooms or of dog guides letics, recreation, transportation, or in campus buildings, that have the ef- other postsecondary education aid, fect of limiting the participation of benefit, or service to which this sub- handicapped students in the recipient’s part applies. education program or activity. (b) A recipient to which this subpart (c) Course examinations. In its course applies that considers participation by examinations or other procedures for students in education programs or ac- evaluating students’ academic achieve- tivities not operated wholly by the re- ment, a recipient to which this subpart cipient as part of, or equivalent to, an applies shall provide such methods for education program or activity operated evaluating the achievement of students by the recipient shall assure itself that who have a handicap that impairs sen- the other education program or activ- sory, manual, or speaking skills as will ity, as a whole, provides an equal op- best ensure that the results of the eval- portunity for the participation of uation represents the student’s qualified handicapped persons. achievement in the course, rather than

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reflecting the student’s impaired sen- qualified handicapped persons, a recipi- sory, manual, or speaking skills (ex- ent to which this subpart applies may cept where such skills are the factors not that the test purports to measure). (i) On the basis of handicap, provide (d) Auxiliary aids. (1) A recipient to less assistance than is provided to non- which this subpart applies shall take handicapped persons, limit eligibility such steps as are necessary to ensure for assistance, or otherwise discrimi- that no handicapped student is denied nate or the benefits of, excluded from partici- (ii) Assist any entity or person that pation in, or otherwise subjected to provides assistance to any of the re- discrimination because of the absence cipient’s students in a manner that dis- of educational auxiliary aids for stu- criminates against qualified handi- dents with impaired sensory, manual, capped persons on the basis of handi- or speaking skills. cap. (2) Auxiliary aids may include taped (2) A recipient may administer or as- texts, interpreters or other effective sist in the administration of scholar- methods of making orally delivered ships, fellowships, or other forms of fi- materials available to students with nancial assistance established under hearing impairments, readers in librar- wills, trusts, bequests, or similar legal ies for students with visual impair- instruments that require awards to be ments, classroom equipment adapted made on the basis of factors that dis- for use by students with manual im- criminate or have the effect of dis- pairments, and other similar services criminating on the basis of handicap and actions. Recipients need not pro- only if the overall effect of the award vide attendants, individually pre- of scholarships, fellowships, and other scribed devices, readers for personal forms of financial assistance is not dis- use or study, or other devices or serv- criminatory on the basis of handicap. ices of a personal nature. (b) Assistance in making available out- [46 FR 55897, Nov. 12, 1981, as amended at 68 side employment. A recipient that as- FR 51386, Aug. 26, 2003] sists any agency, organization, or person in providing employment opportu- § 1170.45 Housing. nities to any of its students shall as- (a) Housing provided by the recipient. A sure itself that such employment op- recipient that provides housing to its portunities, as a whole, are made avail- nonhandicapped students shall provide able in a manner that would not vio- comparable, convenient, and accessible late subpart C if they were provided by housing to handicapped students at the the recipient. same cost as to others. At the end of (c) Employment of students by recipi- the transition period provided for in ents. A recipient that employs any of Subpart D, such housing shall be avail- its students may not do so in a manner able in sufficient quantity and variety that violates subpart C. so that the scope of handicapped students’ choice of living accommodations § 1170.47 Nonacademic services. is, as a whole, comparable to that of (a) Physical education and athletics. (1) nonhandicapped students. In providing physical education courses (b) Other housing. A recipient that as- and athletics and similar aid, benefits, sists any agency, organization, or per- or services to any of its students, a re- son in making housing available to any cipient to which this subpart applies of its students shall take such action may not discriminate on the basis of as may be necessary to assure itself handicap. A recipient that offers phys- that such housing is, as a whole, made ical education courses or that operates available in a manner that does not re- or sponsors intercollegiate, club, or in- sult in discrimination on the basis of tramural athletics shall provide to handicap. qualified handicapped students an equal opportunity for participation in § 1170.46 Financial and employment these activities. assistance to students. (2) A recipient may offer to handi- (a) Provision of financial assistance. (1) capped students physical education and In providing financial assistance to athletic activities that are separate or

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different only if separation or differen- erty or structures are used for the pur- tiation is consistent with the require- pose for which Federal financial assist- ments of § 1170.43(d) and only if no ance is extended or for another purpose qualified handicapped student is denied involving the provision of similar serv- the opportunity to compete for teams ices or benefits. or to participate in courses that are (2) In the case of Federal financial as- not separate or different. sistance extended to provide personal (b) Counseling and placement services. property, the assurance will obligate A recipient to which this subpart ap- the recipient for the period during plies that provides personal, academic, which it retains ownership or posses- or vocational counseling, guidance, or sion of the property. placement services to its students shall provide these services without dis- (3) In all other cases the assurance crimination on the basis of handicap. will obligate the recipient for the pe- The recipient shall ensure that quali- riod during which Federal financial as- fied handicapped students are not sistance is extended. counseled toward more restrictive ca- (c) Covenants. (1) Where Federal fi- reer objectives than are nonhandi- nancial assistance is provided in the capped students with similar interests form of real property or interest in the and abilities. This requirement does property from the Endowment, the in- not preclude a recipient from providing strument effecting or recording this factual information about licensing transfer shall contain a covenant run- and certification requirements that ning with the land to assure non- may present obstacles to handicapped discrimination for the period during persons in their pursuit of particular which the real property is used for a careers. purpose for which the Federal financial (c) Social organizations. A recipient assistance is extended or for another that provides significant assistance to purpose involving the provision of fraternities, sororities, or similar orga- similar services or benefits. nizations shall assure itself that the (2) Where no transfer of property is membership practices of such organiza- involved but property is purchased or tions do not permit discrimination oth- improved with Federal financial assist- erwise prohibited by this subpart. ance, the recipient shall agree to in- [46 FR 55897, Nov. 12, 1981, as amended at 68 clude the covenant described in para- FR 51386, Aug. 26, 2003] graph (b)(2) of this section in the instrument effecting or recording any §§ 1170.48–1170.50 [Reserved] subsequent transfer of the property. Subpart F—Enforcement (3) Where Federal financial assistance is provided in the form of real § 1170.51 Assurances required. property or interest in the property from the Endowment, the covenant (a) Assurances. An applicant for Fed- eral financial assistance to which this shall also include a condition coupled part applies shall submit an assurance, with a right to be reserved by the En- on a form specified by the responsible dowment to revert title to the property Endowment official, that the program in the event of a breach of the cov- or activity will be operated in compli- enant. If a transferee of real property ance with this part. An applicant may proposes to mortgage or to otherwise incorporate these assurances by ref- encumber the real property as security erence in subsequent applications to for financing construction of new, or the Endowment. improvement of existing, facilities on (b) Duration of obligation. (1) In the the property for the purposes for which case of Federal financial assistance ex- the property was transferred, the re- tended in the form of real property or sponsible Endowment official may, to provide real property or structures upon request of the transferee and if on the property, the assurance will ob- necessary to accomplish such financing ligate the recipient or, in the case of a and upon such conditions as he or she subsequent transfer, the transferee, for deems appropriate, agree to forbear the the period during which the real prop- exercise of such right to revert title for

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so long as the lien of such mortgage or policies and practices that do not meet other encumbrance remains effective. the requirements of this part; (3) Take, after consultation with in- [46 FR 55897, Nov. 12, 1981, as amended at 68 FR 51386, Aug. 26, 2003] terested persons, including handicapped persons or organizations rep- § 1170.52 Remedial action, voluntary resenting handicapped persons, appro- action, and self-evaluation. priate remedial steps to eliminate the (a) Remedial action. (1) If the Chair- effects of any discrimination that re- man finds that a recipient has dis- sulted from adherence to these policies criminated against persons on the basis and practices. of handicap in violation of section 504 (4) A recipient that employs fifteen or this part, the recipient shall take or more persons shall maintain on file, such remedial action as the Chairman make available for public inspection, deems necessary to overcome the ef- and provide to the Endowment upon re- fects of the discrimination. quest, for at least three years following (2) Where a recipient is found to have completion of the self-evaluation: discriminated against persons on the (i) A list of the interested persons basis of handicap in violation of sec- consulted; tion 504 or this part and where another (ii) A description of areas examined recipient exercises control over the re- and any problems identified; and cipient that has discriminated, the (iii) A description of any modifica- Chairman, where appropriate, may re- tions made and of any remedial steps quire either or both recipients to take taken. remedial action. (5) The completed self-evaluation (3) The Chairman may, where nec- should be signed by a responsible offi- essary to overcome the effects of dis- cial designated to coordinate the re- crimination in violation of section 504 cipient’s efforts in connection with this or this part, require a recipient to take section. remedial action: [46 FR 55897, Nov. 12, 1981, as amended at 68 (i) With respect to handicapped per- FR 51386, Aug. 26, 2003] sons who are no longer participants in the recipient’s program or activity but § 1170.53 Designation of responsible who were participants in the program employee and adoption of grievance or activity when such discrimination procedures. occurred, or (a) Designation of responsible employee. (ii) With respect to handicapped per- A recipient that employs fifteen or sons who would have been participants more persons shall designate at least in the program or activity had the dis- one person to coordinate its efforts to crimination not occurred. comply with this part. (b) Voluntary action. A recipient may (b) Adoption of grievance procedures. A take steps, in addition to any action recipient that employs fifteen or more that is required by this part, to over- persons shall adopt grievance proce- come the effects of conditions that re- dures that incorporate appropriate due sulted in limited participation in the process standards and that provide for recipient’s program or activity by the prompt and equitable resolution of qualified handicapped persons. complaints alleging any action prohib- (c) A recipient shall within one year ited by this part. Such procedures need of the effective date of this part: not be established with respect to com- (1) Evaluate, with the assistance of plaints from applicants for employ- interested persons, including handi- ment or from applicants for admission capped persons or organizations rep- to postsecondary educational institu- resenting handicapped persons, its cur- tions. rent policies and practices and the effects thereof that do not or may not § 1170.54 Notice. meet the requirements of this part; (a) A recipient that employs fifteen (2) Modify, after consultation with or more persons shall take appropriate interested persons, including handi- initial and continuing steps to notify capped persons or organizations rep- participants, beneficiaries, applicants, resenting handicapped persons, any and employees, including those with

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impaired vision or hearing, and unions 1171.3 Information policy. or professional organizations holding 1171.4 Public availability of records. collective bargaining or professional 1171.5 Requests for records. agreements with the recipient that it 1171.6 Responsibilities for processing and re- does not discriminate on the basis of sponding to requests. handicap in violation of section 504 and 1171.7 Timing of responses to requests. this part. The notification shall state, 1171.8 Responses to requests. 1171.9 Confidential commercial information. where appropriate, that the recipient 1171.10 Administrative appeals. does not discriminate in admission or 1171.11 Fees. access to, or treatment or employment 1171.12 Preservation of records. in, its programs or activities. The noti- 1171.13 Other rights and services. fication shall also include an identification of the responsible employee AUTHORITY: 5 U.S.C. 552; 20 U.S.C. 959; 31 U.S.C. 3717; E.O. 12600. designated pursuant to § 1170.53(a). A recipient shall make the initial notifi- SOURCE: 79 FR 9415, Feb. 19, 2014, unless cation required by this paragraph with- otherwise noted. in 90 days of the effective date of this part. Methods of initial and continuing § 1171.1 About the National Endow- ment for the Humanities. notification may include the posting of notices, publication in newspapers and The National Endowment for the Hu- magazines, placement of notices in re- manities (NEH) was established by the cipients’ publication, and distribution National Foundation on the Arts and of memoranda or other written com- Humanities Act of 1965, 20 U.S.C. 951 et munications. seq., and is an independent grant-mak- (b) If a recipient publishes or uses re- ing agency of the United States gov- cruitment materials or publications ernment dedicated to supporting re- containing general information that it search, education, preservation, and makes available to participants, bene- public programs in the humanities. The ficiaries, applicants, or employees, it NEH is directed by a Chairman and has shall include in those materials or pub- an advisory council composed of twen- lications a statement of the policy de- ty-six presidentially-appointed and scribed in paragraph (a) of this section. Senate-confirmed members. A recipient may meet the requirement of this paragraph either by including § 1171.2 General provisions. appropriate inserts in existing mate- This part contains the regulations rials and publications or by revising the NEH follows in processing requests and reprinting the materials and publi- for NEH records under the Freedom of cations. Information Act (FOIA), 5 U.S.C. 552, [46 FR 55897, Nov. 12, 1981, as amended at 68 as amended. The NEH also follows FR 51386, Aug. 26, 2003] these regulations to process all FOIA requests made to the Federal Council § 1170.55 Endowment enforcement and on the Arts and the Humanities compliance procedures. (FCAH), an organization established by The procedural provisions applicable the National Foundation on the Arts to Title VI of the Civil Rights Act of and Humanities Act of 1965 for which 1964 apply to this part. These proce- the NEH provides legal counsel. These dures are found in §§ 1110.6 through regulations should be read together 1110.11 of part 1100 of this title. with the FOIA and OMB’s Free Guide- lines, which provides additional infor- §§ 1170.56–1170.99 [Reserved] mation about access to NEH and FCAH records. FOIA applies to requests for PART 1171—PUBLIC ACCESS TO records concerning the general activi- NEH RECORDS UNDER THE FREE- ties of the government and of the NEH DOM OF INFORMATION ACT in particular. When individuals seek records about themselves under the Sec. Privacy Act of 1974, 5 U.S.C. 552a, NEH 1171.1 About the National Endowment for processes those requests under both the Humanities. NEH’s Privacy regulations at part 1115 1171.2 General provisions. of this chapter, and this part. Although

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requests are considered either FOIA re- required by 5 U.S.C. 552(a)(2) of the quests or Privacy Act requests, agen- FOIA. However, since the NEH has de- cies process requests in accordance termined that publication and distribu- with both laws, which provides the tion of these indexes is unnecessary greatest degree of lawful access while and impracticable, the NEH will pro- safeguarding an individual’s personal vide these indexes upon request at a privacy. cost not to exceed the direct cost of the duplication. § 1171.3 Information policy. (c) NEH proactively identifies The NEH may provide information records of interest to the public, such the agency routinely makes available as past awards, press releases, grant to the public through its regular ac- guidelines, and grant terms and condi- tivities (for example, program an- tions, and makes these records avail- nouncements and solicitations, press able on the NEH’s Web site at releases, and summaries of awarded www.neh.gov. In addition, copies of the grant applications) without following NEH’s policy statements, information this part. As a matter of policy, the about the NEH’s FOIA program, sam- NEH makes discretionary disclosures ple grant narratives, and other fre- of records or information otherwise ex- quently requested records are available empt under the FOIA whenever disclo- in the NEH’s Electronic Library. sure would not foreseeably harm an in- [79 FR 9415, Feb. 19, 2014, as amended at 82 terest protected by a FOIA exemption. FR 45, Jan. 3, 2017] This policy, however, does not create any right enforceable in court. § 1171.5 Requests for records. (a) How to make a request. Your FOIA § 1171.4 Public availability of records. request need not be in any particular (a) In accordance with 5 U.S.C. format, but it must be in writing, in- 552(a)(2), the NEH will make the fol- clude your full name, mailing address, lowing records available for public in- daytime telephone number. If you spection in an electronic format (un- choose to submit your request on the less they are published and copies are NEH Web site, the request must also offered for sale) without a FOIA re- include your email address. Your request: quest should be clearly identified as a (1) Final opinions, including concur- FOIA request in both the text of the re- ring and dissenting opinions, as well as quest and on the envelope (or on the orders made in the adjudication of facsimile or in the subject heading of cases, an email message) and must describe (2) Statements of policy and interpre- the requested records in enough detail tations which have been adopted by the to enable NEH staff to locate them agency and are not published in the with a reasonable amount of effort. FEDERAL REGISTER, Whenever possible, your request should (3) Administrative staff manuals and include specific information about each instructions to staff that affect a mem- record sought, such as the date, title or ber of the public, name, author, recipient, and subject (4) Copies of all records, regardless of matter of the record. The NEH has no format, which have been released to obligation to answer questions posed as any person under 5 U.S.C. 552(a)(3) and FOIA requests or to create records to which because of their subject matter, satisfy a FOIA request. the NEH determines have become or (b) Agreement to pay fees. If you make are likely to become subject to subse- a FOIA request, the NEH will consider quent requests for substantially the it an agreement by you to pay all ap- same records, or have been requested plicable fees charged under this part, three (3) or more times; and subject to the fee limitations of (5) A general index of the records re- § 1171.11(d). When making a request, ferred to in paragraph (b) of this sec- you may specify a willingness to pay a tion. greater or lesser amount. (b) The NEH will also maintain and (c) Where to send a request. (1) For make available for public inspection in NEH records (except NEH Office of the an electronic format current indexes as Inspector General records) and/or

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FCAH records, write to: The General record will be presumed to be best able Counsel, Office of the General Counsel, to determine whether to disclose it. National Endowment for the Human- (1) If the NEH determines that it is ities, 400 7th Street SW., Room 4060, the agency best able to process the Washington, DC, 20506. You may also record in response to the request, then send your request to the NEH General it will do so, after consultation with Counsel by facsimile at 202–606–8600, by the other agency that has a substantial email at [email protected], or interest in the requested records. through the NEH’s electronic FOIA re- (2) If the NEH determines that it is quest system, which is available on the not the agency best able to process the NEH Web site at www.neh.gov. record, then it will refer the record (or (2) For NEH Office of the Inspector portion thereof) to the other Federal General records, write to: The Inspec- agency, but only if that agency is sub- tor General, Office of the Inspector ject to the FOIA. General, National Endowment for the (d) Notice of referral. Whenever the Humanities, 400 7th Street SW., Room NEH refers all or any part of the re- 2200, Washington, DC 20506. You may sponsibility for responding to a request also send your request to the Inspector to another agency, the NEH will notify General by facsimile at 202–606–8329 or the requester of the referral, provide by email at [email protected]. the name of the agency to which the referral was directed, and include that [79 FR 9415, Feb. 19, 2014, as amended at 80 agency’s FOIA contact information. FR 42066, July 16, 2015] NEH will notify the requester of the part of the request that has been re- § 1171.6 Responsibilities for processing ferred, unless such notification would and responding to requests. disclose information otherwise exempt. (a) Processing requests. The NEH Of- If notification to the requester about fice of the General Counsel (OGC) is the the referral would cause a harm meant central office for processing requests to be protected against by the FOIA, for records, except when it’s necessary NEH will coordinate with the agency for the NEH Office of Inspector General rather than referring the records to it. (OIG) to process a request to maintain the OIG’s independence or ability to § 1171.7 Timing of responses to re- carry out its statutorily mandated du- quests. ties. If the request is for OIG records, (a) In general. The NEH customarily the NEH will inform the requester will respond to requests according to which office will be processing the re- their order of receipt. In determining quest. which records are responsive to a re- (b) Authority to grant or deny requests. quest, the NEH will include only those The NEH General Counsel (or designee) records in its possession as of the date is authorized to grant or deny requests it begins its search for records. If any for NEH records (excluding requests for other date is used, the NEH will inform OIG records), and/or FCAH records. The the requester of that date. NEH Deputy Inspector General (or des- (b) Timing for initial response. Ordi- ignee) is authorized to grant or deny narily, the NEH will determine wheth- requests for OIG records. The NEH er to grant or deny a request for General Counsel (or designee) is au- records within twenty (20) days (week- thorized to grant or deny requests on ends and Federal holidays excluded) of any fee matters and requests for expe- when the NEH receives a request. dited treatment, including OIG-related (c) Tolling of time limits. The NEH may requests. toll the 20-day time period to: (c) Consultations and referrals. When (1) Make one request for information the NEH receives a request for a record it reasonably requests from the re- in its possession, the agency will deter- quester; or mine whether another Federal govern- (2) Clarify the applicability or ment agency is better able to decide amount of any fees, if necessary, with whether the record should or should the requester. not be disclosed under the FOIA. Ordi- (3) Under paragraphs (c)(1) or (2) of narily, the agency that originated a this section, the tolling period ends

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upon the NEH’s receipt of the informa- er’s initial request for records or at tion or clarification from the re- any later time. quester. (3) To request expedited processing, a (d) Unusual circumstances. (1) When requester must submit a statement, the NEH cannot meet the statutory certified to be true and correct to the time limits for processing a request be- requester’s best knowledge and belief, cause of unusual circumstances as de- explaining in detail the basis for re- fined in the FOIA, the NEH may extend questing expedited processing. the response time as follows: (4) Within ten (10) calendar days of (i) If the extension will be for ten (10) receipt of a request for expedited proc- or fewer working days (i.e., weekends essing, the NEH will decide whether to and Federal holidays excluded), the grant it and will notify the requester of NEH will notify the requester as soon the decision. If the NEH grants a reas practicable in writing of the unusual quest for expedited processing, the circumstances and the expected re- NEH will place the request in the expe- sponse date; and dited processing track and then process (ii) If the extension will be for more the request as soon as practicable. If than ten (10) working days, the NEH the NEH denies a request for expedited will provide the requester with an op- processing, the NEH will act upon any portunity either to modify the request appeal of that decision expeditiously. so that it may be processed within the time limit or to arrange an alternative [79 FR 9415, Feb. 19, 2014, as amended at 82 time period to process the request or a FR 45, Jan. 3, 2017] modified request. To aid the requester, NEH shall make available its FOIA § 1171.8 Responses to requests. Public Liaison, who shall assist in the (a) Acknowledgment of requests. Upon resolution of any disputes between the receipt of a request that will take requester and the agency, and shall no- longer than ten (10) days to process, tify the requester of his or her right to the NEH will send the requester an ac- seek dispute resolution services from knowledgment letter that assigns the the Office of Government Information request an individualized tracking Services. number. (2) If the NEH reasonably believes (b) Grants of requests. If the NEH that multiple requests submitted by a makes a determination to grant a re- requester, or a group of requesters act- quest in whole or in part, it will notify ing in concert, constitute a single request that would otherwise involve un- the requester in writing of such deter- usual circumstances, and the requests mination and the reasons therefore, involve clearly related matters, the and the requester’s right to seek assist- NEH may aggregate the requests. The ance from NEH’s FOIA Public Liaison. NEH will not aggregate multiple re- The NEH will inform the requester of quests involving unrelated matters. any applicable fees and will disclose (e) Expedited processing. (1) The NEH records to the requester promptly on will process requests and appeals on an payment of any applicable fees. The expedited basis whenever it determines NEH will mark or annotate records dis- that they involve: closed in part to show the amount of (i) Circumstances in which the lack information deleted pursuant to a of expedited treatment could reason- FOIA exemption, unless doing so would ably be expected to pose an imminent harm an interest protected by an appli- threat to the life or physical safety of cable FOIA exemption. If technically an individual; or feasible, the NEH will also indicate, on (ii) An urgency to inform the public the agency record(s) it provides, the lo- about actual or alleged Federal govern- cation of the information deleted. ment activity if the expedited proc- (c) Denials of requests. If the NEH essing request is made by a person pri- makes a determination to deny a re- marily engaged in disseminating infor- quest in any respect, the NEH will also mation. notify the requester in writing of: (2) A requester may seek expedited (1) The name and title or position of processing at the time of the request- the person responsible for the denial;

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(2) A brief statement of the reason(s) (d) When notice to submitters is refor the denial, including any FOIA ex- quired. (1) The NEH will give notice to emption applied by the NEH in denying a submitter whenever: the request; (i) The submitter, in good faith, has (3) An estimate of the volume of designated the requested information records or information withheld, if ap- as information considered protected plicable, although such an estimate is from disclosure under Exemption 4; or not required if the volume is otherwise (ii) The NEH has reason to believe indicated through deletion on the that the information may be protected records disclosed in part, or if pro- from disclosure under Exemption 4. viding such an estimate would harm an (2) The notice will either describe the interest protected by an applicable ex- confidential commercial information emption; requested or include copies of the re- (4) The requester’s right to seek dispute resolution services from NEH’s quested records or record portions con- FOIA Public Liaison or the Office of taining the information. In cases in- Government Information Services; and volving a voluminous number of sub- (5) A statement that the requester mitters, the NEH may make notice by may appeal the denial under § 1171.10 posting or publishing the notice in a and a description of the requirements place reasonably likely to accomplish to appeal. it. (e) Exceptions to submitter notice re- [79 FR 9415, Feb. 19, 2014, as amended at 82 quirements. The notice requirements of FR 45, Jan. 3, 2017] this section will not apply if: § 1171.9 Confidential commercial infor- (1) The NEH determines that the re- mation. quested information is exempt under (a) In general. The NEH will not dis- the FOIA; close confidential commercial informa- (2) The information lawfully has been tion in response to a FOIA request, ex- published or has been officially made cept as described in this section. available to the public; (b) Definitions. For purposes of this (3) Disclosure of the information is section: required by statute (other than the (1) Confidential commercial information FOIA) or by a regulation issued in ac- means commercial or financial infor- cordance with the requirements of Ex- mation obtained by the NEH from a ecutive Order 12600 of June 23, 1987; or submitter that may be protected from (4) The designation made by the sub- disclosure under Exemption 4 of the mitter under paragraph (c) of this sec- FOIA. tion appears obviously frivolous, ex- (2) Submitter means any person or en- cept that, in such a case, the NEH will tity from whom the NEH obtains con- give the submitter written notice of fidential commercial information, di- any final decision to disclose the infor- rectly or indirectly. The term includes mation within a reasonable number of corporations; state, local, and tribal days prior to a specified disclosure governments; and foreign governments. date. (c) Designation of confidential commer- (f) Opportunity to object to disclosure. cial information. A submitter of con- (1) The NEH will specify a reasonable fidential commercial information will time period within which the submitter use good-faith efforts to designate by must respond to the notice described in appropriate markings, either at the paragraph (d)(2) of this section. If a time of submission or at a reasonable submitter has any objection to disclo- time thereafter, any portions of its submission that it considers to be pro- sure, it must submit a detailed written tected from disclosure under Exemp- statement to the NEH specifying all tion 4. These designations will expire grounds for withholding any portion of ten years after the date of the submis- the information under any exemption sion unless the submitter requests, and of the FOIA. If the submitter relies on provides justification for, a longer des- Exemption 4 as a basis of nondisclo- ignation period. sure, the submitter must explain why

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the information constitutes a trade se- NEH’s electronic FOIA request system, cret, or commercial or financial infor- which is available on the NEH Web site mation that is privileged or confiden- at www.neh.gov. For a denial of your tial. request for OIG records, you may ap- (2) The NEH will consider a sub- peal by facsimile at 202–606–8329, by mitter who fails to respond with the email at [email protected] or by mail to The time period specified on the notice to Inspector General, National Endow- have no objection to disclosure of the ment for the Humanities, 400 7th Street information. The NEH will not con- SW., Room 2200, Washington, DC 20506. sider information it receives from a Your appeal must be in writing and re- submitter after the date of any disclo- ceived by NEH within ninety (90) days sure decision. Any information proof the date of the letter denying your vided by a submitter under this section request in whole or in part. Your ap- may itself be subject to disclosure under the FOIA. peal letter must clearly identify the (g) Notice of intent to disclose. The NEH decision that you are appealing NEH will consider a submitter’s objec- and contain the tracking number, if as- tions and specific grounds for non- signed. You should clearly mark your disclosure in deciding whether to dis- appeal letter and envelope ‘‘Freedom of close confidential commercial informa- Information Act Appeal.’’ tion. Whenever the NEH decides to dis- (b) Responses to appeals. The Deputy close confidential commercial informa- Chairman (or designee) or the Inspec- tion over the objection of a submitter, tor General (or designee) will make a the NEH will provide the submitter written determination on your appeal written notice, which will include: within twenty (20) days (weekends and (1) A statement of the reason(s) why Federal holidays excluded) after the each of the submitter’s disclosure ob- agency receives your appeal, except as jections was not sustained; provided by 1171.7(d). If the appeal deci- (2) A description of the business in- sion affirms the denial of your request, formation to be disclosed; and the NEH will notify you in writing of (3) A specified disclosure date, which the reason(s) for the decision, including will be a reasonable time after the no- the applicable FOIA exemption(s), and tice. inform you of the FOIA provisions for (h) Notice of FOIA lawsuit. Whenever a court review of the decision. If the de- requester files a lawsuit seeking to compel the disclosure of confidential nial of your request is reversed or commercial information, the NEH will modified, in whole or in part, the NEH promptly notify the submitter. will reprocess your request in accord- (i) Requester notification. The NEH ance with that appeal decision and no- will notify the requester whenever the tify you of that decision in writing. A NEH provides the submitter with no- response to an appeal will advise the tice and an opportunity to object to requester that the 2007 amendments to disclosure; whenever the NEH notifies FOIA created the Office of Government the submitter of its intent to disclose Information Services (OGIS) to offer the requested information; and when- mediation services to resolve disputes ever a submitter files a lawsuit to pre- between FOIA requesters and Federal vent the disclosure of the information. agencies as a non-exclusive alternative to litigation. A requester may contact § 1171.10 Administrative appeals. OGIS in any of the following ways: Of- (a) You may appeal a denial of your fice of Government Information Serv- request for NEH records (except NEH ices, National Archives and Records OIG records) and/or FCAH records to Administration, 8601 Adelphi Road— The Deputy Chairman, National En- OGIS, College Park, MD 20740; https:// dowment for the Humanities, 400 7th ogis.archives.gov; email: [email protected]; Street SW., Room 4053, Washington, DC telephone: 202–741–5770; facsimile: 202– 20506. You may also send your appeal to 741–5769; toll-free: 1–877–684–6448. the NEH General Counsel by facsimile (c) When appeal is required. If you at 202–606–8600, by email at wish to seek review by a court of any [email protected], or through the

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denial by the NEH, you must first sub- form of paper, microform, audiovisual mit a timely administrative appeal to materials, or electronic records among the NEH. others. [79 FR 9415, Feb. 19, 2014, as amended at 80 (4) Educational institution means any FR 42066, July 16, 2015; 82 FR 46, Jan. 3, 2017] school that operates a program of scholarly research. A requester in this § 1171.11 Fees. category must show that the request is (a) In general. The NEH will assess authorized by and made under the aus- fees for processing FOIA requests in ac- pices of a qualifying institution and cordance with this section and with the that the records are not sought for a Uniform Freedom of Information Fee commercial use, but are sought to fur- Schedule and Guidelines published by ther scholarly research. the Office of Management and Budget (5) Noncommercial scientific institution at 52 FR 10012 (Mar. 27, 1987). In order means an institution that is not oper- to resolve any fee issues that arise ated on a ‘‘commercial’’ basis, as de- under this section, the NEH may confined in paragraph (b)(1) above, and tact a requester for additional informa- that is operated solely for the purpose tion. The NEH ordinarily will collect of conducting scientific research, the all applicable fees before sending copies results of which are not intended to of records to a requester. Requesters promote any particular product or in- must pay fees by check or money order dustry. A requester in this category made payable to the Treasury of the must show that the request is author- United States. ized by and made under the auspices of (b) Definitions. For purposes of this a qualifying institution and that the section: records are not sought for a commer- (1) Commercial use request means a re- cial use or to promote any particular quest from or on behalf of a person who product or industry, but are sought to seeks information for a use or purpose further scientific research. that furthers his or her commercial, (6) Representative of the news media trade, or profit interest, which can in- means any person or entity that gath- clude furthering those interests through litigation. When it appears ers information of potential interest to that the requester will put the records a segment of the public, uses its edi- to a commercial use, either because of torial skills to turn the raw materials the nature of the request itself or be- into a distinct work, and distributes cause the NEH has reasonable cause to that work to an audience. The term doubt a requester’s stated use, the NEH ‘‘news’’ means information that is will provide the requester a reasonable about current events or that would be opportunity to submit further clari- of current interest to the public. Exam- fication. ples of news-media entities include tel- (2) Direct costs means those expenses evision or radio stations broadcasting that an agency actually incurs in to the public at large, and publishers of searching for and duplicating (and, in periodicals (but only if such entities the case of commercial use requests, qualify as disseminators of ‘‘news’’) reviewing) records to respond to a who make their products available for FOIA request. Direct costs include, for purchase or by subscription or by free example, the salary of the employee distribution to the general public. The performing the work (the basic rate of NEH will regard ‘‘freelance’’ journal- pay for the employee, plus 16 percent of ists as working for a news-media orga- that rate to cover benefits) and the nization if they demonstrate a solid cost of operating duplication machin- basis for expecting publication though ery. Not included in direct costs are that organization. A publication con- overhead expenses such as the costs of tract would provide the clearest evi- space and heating or lighting of the fa- dence, but the NEH will also consider a cility in which the records are kept. requester’s past publication record in (3) Duplication means the making of a making this determination. copy of a record, or of the information (7) Review means the process of exam- contained in it, necessary to respond to ining a record located in response to a a FOIA request. Copies can take the request in order to determine whether

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any portion of it is exempt from disclo- producing the copy, including operator sure. Review includes processing any time. For other forms of duplication, record for disclosure, such as doing all the NEH will charge the direct costs of that is necessary to redact it and pre- that duplication. The NEH will honor a pare it for disclosure. It also includes requester’s preference for receiving a time spent both obtaining and consid- record in a particular form or format ering any formal objection to disclo- where it is readily reproducible by the sure made by a confidential commer- NEH in the form or format requested. cial information submitter under (3) Review. The NEH will charge re- § 1171.9, but it does not include time view fees to requesters who make a spent resolving general legal or policy commercial use request. Review fees issues regarding the application of ex- will be charged only for the initial emptions. Review costs are recoverable record review (i.e., the review the NEH even if the NEH ultimately does not conducted to determine whether an ex- disclose a record. emption applies to a particular record (8) Search means the process of look- or record portion at the initial request ing for and retrieving records or infor- stage). No charge will be made for re- mation responsive to a request. It in- view at the administrative appeal stage cludes page-by-page or line-by-line for exemptions applied at the initial identification of information within review stage. However, if the NEH re- records and the reasonable efforts ex- reviews the records for the applica- pended to locate and retrieve informa- bility of other exemptions that it did tion from electronic records. The NEH not previously consider, then the costs will ensure that searches are done in for the subsequent review are assess- the most efficient and least expensive able. Review fees will be charged at the manner reasonably possible. same rates as those charged for a (c) Fee schedule. In responding to search under paragraph (c)(1)(i). The FOIA requests, the NEH will charge NEH may charge for review even if it the following fees for requests, subject ultimately decides not to disclose a to paragraphs (d), (e), and (f) of this record. section: (d) Limitations on charging requesters. (1) Search. (i) The NEH will charge (1) Except for requesters seeking $4.00 for each quarter hour spent by records for commercial use, the NEH clerical personnel in searching for and will provide without charge: retrieving a requested record. When clerical personnel cannot perform the (i) The first 100 pages of duplication search and retrieval (e.g. identification (or the cost equivalent); and of records within scope of request re- (ii) The first two hours of search (or quires professional personnel), the NEH the cost equivalent). will charge $7.00 for each quarter hour (2) When, after first deducting the 100 of search time spent by professional pages (or its cost equivalent) and the personnel. Where the time of manage- first two hours of search, the total fee rial personnel is required, the fee will is $25.00 or less for any request, the be $10.00 for each quarter hour of time NEH will not charge a fee. spent by those personnel. The NEH (3) If NEH fails to comply with the may charge for time spent searching FOIA’s time limits in which to respond even if it does not locate any respon- to a request, it may not charge search sive records or if it determines that the fees, or, in the instances of requests records are entirely exempt from dis- from requesters described in para- closure. graphs (b)(4) through (6) of this section, (ii) For computer searches of records, may not charge duplication fees, ex- the NEH will charge the actual direct cept as described in paragraphs (d)(3)(i) cost of conducting the search. through (iii) of this section. (2) Duplication. The fee for a photo- (i) If NEH has determined that un- copy of a record on one-side of an 81⁄2 × usual circumstances, as defined by the 11 inch sheet of paper is ten cents per FOIA, apply and NEH has provided page. For copies of records produced on timely written notice to the requester tapes, disks, or other electronic media, in accordance with the FOIA, a failure the NEH will charge the direct costs of to comply with the time limit shall be

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excused for an additional ten (10) work- (i) Disclosure of the requested infor- ing days. mation is in the public interest because (ii) If NEH has determined that unit is likely to contribute significantly usual circumstances, as defined by the to public understanding of the oper- FOIA, apply and more than 5,000 pages ations or activities of the government, are necessary to respond to the re- and quest, NEH may charge search fees, or, (ii) Disclosure of the information is in the case of requesters described in not primarily in the commercial inter- paragraphs (b)(4) through (6) of this est of the requester. section, may charge duplication fees, (2) To determine whether the first fee provided NEH provided timely written requirement is met, the NEH will con- notice of unusual circumstances to the sider the following factors: requester in accordance with the FOIA (i) The subject of the requested and NEH discussed with the requester records must concern identifiable oper- via written mail, email, or telephone ations or activities of the Federal gov- (or made not less than three good-faith ernment, with a connection that is di- attempts to do so) how the requester rect and clear, not remote or attenu- could effectively limit the scope of the ated. request in accordance with 5 U.S.C. (ii) The disclosable portions of the re- 552(a)(6)(B)(ii). quested records must be meaningfully (iii) If a court has determined that informative about government oper- exceptional circumstances exist, as de- ations or activities in order to be fined by the FOIA, a failure to comply ‘‘likely to contribute’’ to an increased with the time limits shall be excused public understanding of those oper- for the length of time provided by the ations or activities. Disclosure of infor- court order. mation already in the public domain, (e) Categories of requesters. There are in either duplicative or substantially four categories of FOIA requesters: identical form, is unlikely to con- commercial use requesters; educational tribute to such understanding where and non-commercial scientific institu- nothing new would be added to the tions; representatives of the news public’s understanding. media; and all other requesters. The (iii) The disclosure must contribute NEH will assess fees for these cat- to the understanding of a reasonably egories of requesters as follows: broad audience of persons interested in (1) Commercial use requesters. The NEH the subject, as opposed to the indi- will charge the full direct costs for vidual understanding of the requester. searching for, reviewing, and dupli- A requester’s expertise in the subject cating requested records. area as well as his or her ability and (2) Educational and non-commercial sci- intention to effectively convey infor- entific institution requesters. The NEH mation to the public will be consid- will charge for duplication only, ex- ered. It will ordinarily be presumed cluding costs for the first 100 pages. that a representative of the news (3) News media requesters. The NEH media satisfies this consideration. will charge for duplication only, ex- (iv) The public’s understanding of the cluding costs for the first 100 pages. subject in question must be enhanced (4) All other requesters. The NEH will by the disclosure to a significant ex- charge requesters who do not fit into tent. The NEH will make no value any of the categories above the full judgments about whether the informa- reasonable direct cost of searching for tion at issue is ‘‘important’’ enough to and reproducing records, excluding be made public. costs for the first 100 pages and the (3) To determine whether the second first two hours of search time. fee waiver requirement is met, the (f) Requirements for fee waivers or re- NEH will consider the following fac- duction of fees. (1) The NEH will furnish tors: responsive records without charge or at (i) The NEH will identify any com- a reduced charge if it determines, mercial interest of the requester, as de- based on all available information, fined in paragraph (b)(1) of this section, that the requester has demonstrated that would be furthered by the re- that: quested disclosure. Requesters will be

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given an opportunity to provide ex- rect costs of providing the service to planatory information regarding this the requester. consideration. (i) Charging interest. The NEH may (ii) A fee waiver or reduction is justi- charge interest on any unpaid bill fied where the public interest is greater starting on the 31st day following the than any identified commercial inter- date of billing the requester. The NEH est in disclosure. will assess interest charges at the rate (4) Where only some of the requested provided in 31 U.S.C. 3717 and such records satisfy the requirements for a charges will accrue from the billing fee waiver, a waiver will be granted for date until the NEH receives payment those records. from the requester. The NEH will fol- (5) Requesters should make fee waiv- low the provisions of the Debt Collec- er or reduction requests when they tion Act of 1982 (Pub. L. 97–365, 96 Stat. first submit a FOIA request to the 1749), as amended, and its administra- NEH. Fee waiver or reduction requests tive procedures, including the use of should address the factors listed in consumer reporting agencies, collec- paragraphs (f)(2) and (3) of this section. tion agencies, and offset. Fee waiver or reduction requests may (j) Advance payment. (1) For requests be submitted at a later time so long as other than those described in para- the underlying record request is pend- graphs (j)(2) and (3) of this section, the NEH will not require the requester to ing or on administrative appeal. make an advance payment before it (g) Notice of anticipated fees in excess commences or continues work on a re- (1) When the NEH determines of $25.00. quest. Payment owed for work already or estimates that the fees to be completed (i.e., payment before copies charged under this section will exceed are sent to a requester) is not an ad- $25.00, it will notify the requester of vance payment. the actual or estimated fees, unless the (2) When the NEH determines or esti- requester has indicated a willingness to mates that a total fee to be charged pay fees as high as those anticipated. If under this section will be more than the NEH can only readily estimate a $250.00, it may require the requester to portion of the fees, it will advise the make an advance payment of an requester that the estimated fee may amount up to the amount of the entire be only a portion of the total fee. anticipated fee before beginning to (2) The notice will offer the requester process the request, except where it re- an opportunity to confer with NEH per- ceives a satisfactory assurance of full sonnel in order to reformulate the repayment from a requester that has a quest to meet the requester’s needs at history of prompt payment. a lower cost and inform the requester (3) When a requester has previously of paragraph (d)(1) of this section, if ap- failed to pay a properly charged fee to plicable. A commitment by the re- the NEH within thirty (30) days of the quester to pay the anticipated fee must billing date, the NEH may require the be in writing and must be received by requester to pay the full amount due, the NEH within thirty (30) calendar plus any applicable interest, and to days from the date of notification of make an advance payment of the full the fee estimate. Until the requester amount of any anticipated fee, before agrees to pay the anticipated fee, the the NEH begins to process a new re- NEH will not consider the request as quest or continues to process a pending received by the agency and no further request from that requester. work will be done on the request. If a (4) When there is an advance pay- requester fails to respond within this ment request, the NEH will not con- timeframe, the NEH will administra- sider the request as received by the tively close the request. agency and no further work will be (h) Charges for other services. When done on the request until the required the NEH chooses, in its sole discretion, payment is received. If the requester to provide a requested special service fails to respond within thirty (30) cal- (e.g. certifying that records are true endar days after the date of the ad- copies or sending them by other than vance payment request, the NEH will ordinary mail), it will charge the di- administratively close the request.

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(k) Aggregating requests. When the 1172.12 Exceptions to the rules against age NEH reasonably believes that a re- discrimination. quester or a group of requesters acting 1172.13 Burden of proof. together is attempting to divide a re- Subpart C—Responsibilities of NEH quest into a series of requests for the Recipients purpose of avoiding fees, the NEH may aggregate those requests and charge 1172.21 General responsibilities. accordingly. The NEH may presume 1172.22 Notice to subrecipients. that multiple requests of this type 1172.23 Self-evaluation. made within a 30-day period have been 1172.24 Information requirements. made in order to avoid fees. For re- Subpart D—Investigation, Conciliation, and quests separated by a longer period, Enforcement Procedures the NEH will aggregate them only when there is a reasonable basis for de- 1172.31 Compliance reviews. termining that aggregation is war- 1172.32 Complaints. ranted in view of all the circumstances 1172.33 Mediation. 1172.34 Investigation. involved. The NEH will not aggregate 1172.35 Prohibition against intimidation or multiple requests involving unrelated retaliation. matters. 1172.36 Enforcement procedure. 1172.37 Hearings, decisions, post-termi- [79 FR 9415, Feb. 19, 2014, as amended at 82 nation proceedings. FR 46, Jan. 3, 2017] 1172.38 Remedial action by recipients. 1172.39 Alternate funds disbursal procedure. § 1171.12 Preservation of records. 1172.40 Exhaustion of administrative rem- NEH will preserve all correspondence edies. pertaining to the requests that it re- AUTHORITY: 42 U.S.C. 6101–6107; 45 CFR 90. ceives as well as copies of all requested SOURCE: 79 FR 26633, May 9, 2014, unless records, until disposition or destruc- otherwise noted. tion is authorized by the agency’s Gen- eral Records Schedule of the National Subpart A—General Archives and Records Administration (NARA) or other NARA-approved § 1172.1 Purpose. records schedule. Records will not be The purpose of this part is to set out disposed of while they are the subject the National Endowment for the Hu- of a pending request, appeal, or lawsuit manities’ (NEH) policies and proce- under the Act. dures for implementing the Age Dis- § 1171.13 Other rights and services. crimination Act of 1975, as amended, 42 U.S.C. 6101 et seq., (the Act or the Age Nothing in this part will be con- Act). The Act is designed to prohibit strued to entitle any person, as of discrimination on the basis of age in right, to any service or to the disclo- programs or activities receiving Fed- sure of any record to which such person eral financial assistance. The Act also is not entitled under the FOIA. permits federally assisted programs or activities, and recipients of Federal PART 1172—NONDISCRIMINATION funds, to continue to use certain age ON THE BASIS OF AGE IN FEDER- distinctions and factors other than age ALLY ASSISTED PROGRAMS OR which meet the requirements of the ACTIVITIES Act and the regulations in this part. The regulations in this part are based Subpart A—General upon the general, government-wide age discrimination regulations issued by Sec. the United States Department of 1172.1 Purpose. Health and Human Services (HHS) at 45 1172.2 Application. CFR part 90. Complaints of employ- 1172.3 Definitions. ment discrimination based on age may be subject to the Age Discrimination in Subpart B—Standards for Determining Age Employment Act of 1967, as amended, Discrimination 29 U.S.C. 621 et seq., (ADEA) and should 1172.11 Rules against age discrimination. be filed administratively with the

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Equal Employment Opportunity Com- Chairman means the Chairman of the mission (EEOC) (29 CFR part 1626). National Endowment for the Human- ities. § 1172.2 Application. Federal financial assistance means any (a) The Act and the regulations in grant, entitlement, loan, cooperative this part apply to each recipient and to agreement, contract (other than a pro- any program or activity receiving fi- curement contract or a contract of in- nancial assistance from the NEH. surance or guaranty), or any other ar- (b) The Act does not apply to: rangement by which NEH provides or (1) Any age distinction contained in otherwise makes available assistance that part of a Federal, State or local in the form of: statute or ordinance adopted by an (1) Funds; elected, general purpose legislative (2) Services of Federal personnel; or body which: (3) Real and personal property or any (i) Provides any benefits or assist- interest in or use of property, includ- ance to persons based on age; ing: (ii) Establishes criteria for participa- (i) Transfers or leases of property for tion in age-related terms; or less than fair market value or for re- (iii) Describes intended beneficiaries duced consideration; and or target groups in age-related terms. (ii) Proceeds from a subsequent (2) Any employment practice of any transfer or lease of property if the Fed- employer, employment agency, labor eral share of its fair market value is organization, or with respect to any not returned to the Federal Govern- labor-management joint apprenticeship ment. training program. Normal operation means the operation (3) The rights or responsibilities of of a program or activity without sig- any person or party pursuant to the nificant changes that would impair its ADEA, the EEOC regulations under the ability to meet its objectives. ADEA, or any statements of policy pro- Program or activity means all of the mulgated by the EEOC under the operations of: ADEA. (1)(i) A department, agency, special purpose district, or other instrumen- § 1172.3 Definitions. tality of a State or local government, As used in this part, the term: or Act means the Age Discrimination (ii) The entity of such State or local Act of 1975, as amended, 42 U.S.C. 6101 government that distributes Federal fi- et seq. (Pub. L. 94–135). nancial assistance and each such de- Action means any act, activity, pol- partment or agency (and each other icy, rule, standard, or method of ad- State or local government entity) to ministration; or the use of any policy, which the assistance is extended, in the rule, standard, or method of adminis- case of assistance to a State or local tration. government; ADEA means the Age Discrimination (2)(i) A college, university, or other in Employment Act of 1967, as amend- postsecondary institution, or a public ed, 29 U.S.C. 621 et seq. (Pub. L. 90–202). system of higher education, or Age means how old a person is, or the (ii) A local educational agency (as de- number of elapsed years from the date fined in 20 U.S.C. 7801), system of voca- of a person’s birth. tional education, or other school sys- Age distinction means any action tem; using age or an age-related term. (3)(i) An entire corporation, partner- Age-related term means a word or ship, or other private organization, or words which necessarily imply a par- an entire sole proprietorship— ticular age or range of ages (for exam- (A) If assistance is extended to such ple, children, adult, older persons, but corporation, partnership, private orga- not student). nization, or sole proprietorship as a Agency means a Federal department whole, or or agency that is empowered to extend (B) Which is principally engaged in financial assistance. the business of providing education,

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health care, housing, social services, or be excluded from participation in, be parks and recreation; or denied the benefits of, or be subjected (ii) The entire plant or other com- to discrimination under, any program parable, geographically separate facil- or activity receiving Federal financial ity to which Federal financial assist- assistance. ance is extended, in the case of any (b) Specific rules. A recipient may not, other corporation, partnership, private in any program or activity receiving organization, or sole proprietorship; or Federal financial assistance, directly (4) Any other entity which is estab- or through contractual, licensing, or lished by two or more of the entities other arrangements use age distinc- described in paragraph (1), (2), or (3) of tions or take any other actions which this definition, any part of which is ex- have the effect, on the basis of age, of: tended Federal financial assistance. (1) Excluding individuals from, deny- Recipient means any State or its po- ing them the benefits of, or subjecting litical subdivision, any instrumen- them to discrimination under, a pro- tality of a State or its political sub-di- gram or activity receiving Federal fi- vision, any public or private agency, nancial assistance, or institution, organization, or other enti- (2) Denying or limiting individuals in ty, or any person to which Federal fi- their opportunity to participate in any nancial assistance is extended, directly program or activity receiving Federal or through another recipient. Recipient financial assistance. includes any successor, assignee, or (c) The specific forms of age discrimi- transferee, but excludes the ultimate nation listed in paragraph (b) of this beneficiary of the assistance. section do not necessarily constitute a Secretary means the Secretary of the complete list of discriminatory ac- Department of Health and Human tions. Services. Statutory objective means any purpose § 1172.12 Exceptions to the rules of a program or activity expressly stat- against age discrimination. ed in any Federal statute, State stat- (a) Normal operation or statutory objec- ute, or local statute or ordinance tive of any program or activity. A recipi- adopted by an elected, general purpose ent may take an action otherwise pro- legislative body. hibited by § 1172.11 if the action reason- Subrecipient means any of the entities ably takes into account age as a factor in the definition of recipient to which a necessary to the normal operation or recipient extends or passes on Federal the achievement of any statutory ob- financial assistance. A subrecipient is jective of a program or activity, if: generally regarded as a recipient of (1) Age is used as a measure or ap- Federal financial assistance and has all proximation of one or more other char- the duties of a recipient in the regula- acteristics; tions in this part. (2) The other characteristic(s) must United States means the fifty states, be measured or approximated in order the District of Columbia, Puerto Rico, for the normal operation of the pro- the Virgin Islands, American Samoa, gram or activity to continue, or to Guam, Wake Island, the Trust Terri- achieve any statutory objective of the tory of the Pacific Islands, the North- program or activity; ern Marianas, and the territories and (3) The other characteristic(s) can be possessions of the United States. reasonably measured or approximated by the use of age; and Subpart B—Standards for (4) The other characteristic(s) are Determining Age Discrimination impractical to measure directly on an individual basis. § 1172.11 Rules against age discrimina- (b) Reasonable factors other than age. tion. A recipient may take an action other- The rules stated in this section are wise prohibited by § 1172.11 which is limited by the exceptions contained in based on a reasonable factor other than § 1172.12. age, even though that action may have (a) General rule. No person in the a disproportionate effect on persons of United States shall, on the basis of age, different ages. An action may be based

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on a reasonable factor other than age recipients, the recipient must provide only if the factor bears a direct and the subrecipients with written notice substantial relationship to the normal of their obligations under the Act and operation of the program or activity or the regulations in this part. Each re- to the achievement of a statutory ob- cipient must also make necessary in- jective. formation available to its beneficiaries (c) Affirmative action by recipient. in order to inform them about the pro- Even in the absence of a finding of dis- tections against discrimination pro- crimination, a recipient may take af- vided by the Act and the regulations in firmative action to overcome the ef- this part. fects or conditions that resulted in limited participation in the recipient’s § 1172.23 Self-evaluation. program or activity on the basis of age. As part of a compliance review under (d) Special benefits for children and the § 1172.31 or a complaint investigation elderly. If a recipient operating a pro- under § 1172.34, NEH may require a re- gram or activity provides special bene- cipient employing the equivalent of fif- fits to the elderly or to children, such teen (15) or more full time employees use of age distinctions shall be pre- to complete a written self-evaluation, sumed to be necessary to the normal in a manner specified by NEH, of any operation of the program or activity, age distinction imposed in its program notwithstanding the provisions of or activity receiving Federal financial § 1172.12(a). assistance. A recipient must take cor- (e) Age distinctions in NEH regulations. rective and remedial action whenever a Any age distinction in a regulation self-evaluation indicates a violation of issued by NEH is presumed to be nec- the Act, and the recipient must make essary to the achievement of a statu- the self-evaluation available upon re- tory objective of the program or activ- quest to NEH and to the public for a ity to which the regulation applies, period of three (3) years following its notwithstanding the provisions of completion. § 1172.12(a).

§ 1172.13 Burden of proof. § 1172.24 Information requirements. The recipient of Federal financial as- Each recipient shall keep records sistance bears the burden of proving containing information necessary for that an age distinction or other action NEH to determine whether the recipi- falls within the exceptions outlined in ent is in compliance with the Act and § 1172.12. the regulations in this part, and shall provide any such records to NEH upon request and in the preferred format Subpart C—Responsibilities of NEH specified by NEH. Each recipient shall Recipients also permit reasonable access by NEH § 1172.21 General responsibilities. to its books, records, accounts, and other facilities and sources of informa- A recipient has responsibility to en- tion, to the extent necessary for NEH sure that its programs or activities are to determine whether the recipient is in compliance with the Act and the in compliance with the Act and this regulations in this part and to take part. steps to eliminate violations of the Act and the regulations in this part. A recipient also has responsibility to main- Subpart D—Investigation, Concil- tain records, provide information, and iation, and Enforcement Pro- afford NEH access to its records to the cedures extent NEH finds necessary to determine whether the recipient is in com- § 1172.31 Compliance reviews. pliance with the Act and the regula- (a) NEH may conduct compliance re- tions in this part. views, pre-award reviews, and other similar procedures in order to inves- § 1172.22 Notice to subrecipients. tigate and correct violations of the Act Where a recipient passes on Federal and the regulations in this part. NEH financial assistance from NEH to sub- may conduct these reviews even in the

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absence of a complaint against the re- mation and assistance regarding the cipient. Reviews may be as comprehen- complaint resolution process. sive as necessary to determine whether (d) NEH will return any complaint a recipient is in compliance with the that is unsigned or that is not within Act and this part. NEH’s jurisdiction for any other rea- (b) If a compliance review or pre- son, and NEH will provide an expla- award review indicates a violation of nation for the return. the Act and the regulations in this part, NEH will attempt to contact the § 1172.33 Mediation. recipient and achieve the recipient’s (a) Referral of complaints for mediation. voluntary compliance. If the recipient Unless the age distinction complained does not comply voluntarily, NEH may of is clearly within an exception, NEH pursue enforcement efforts as described will promptly refer all complaints that in § 1172.36. fall within the jurisdiction of the regulations in this part, and that contain § 1172.32 Complaints. all information necessary for further (a) Any person, individually or as a processing, to the Mediation Agency member of a class or on behalf of oth- designated by the Secretary of the De- ers, may file a complaint with NEH, al- partment of Health and Human Serv- leging discrimination prohibited by the ices. Act and the regulations in this part (b) Both the complainant and the re- based on an action occurring on or cipient shall participate in the medi- after July 1, 1979. A complainant must ation process to the extent necessary file a complaint in writing within one to reach an agreement, or for the medi- hundred eighty (180) days from the date ator to make an informed judgment that the complainant first had knowl- that an agreement is impossible. edge of the alleged act of discrimina- (c) If the complainant and recipient tion. However, for good cause, NEH reach a mutually satisfactory resolu- may extend this time limit. NEH will tion of the complaint during the medi- consider the date a complaint is filed ation period, the mediator shall pre- as the date when the complaint is suffi- pare a mediation agreement in writing, cient to be processed. to be signed by the complainant and re- (b) Complaints must include a writ- cipient, and send a copy of the signed ten and signed statement identifying agreement to NEH. NEH will take no the parties involved, describing the al- further action based on that complaint leged violation, and stating the date on unless the complainant or the recipient which the complainant first had knowl- has failed to comply with the agree- edge of the alleged violation. ment. (c) NEH will attempt to facilitate the (d) The mediator shall protect the filing of complaints wherever possible, confidentiality of all information ob- including taking the following meas- tained in the course of the mediation ures, as appropriate: process, and no mediator shall testify (1) Widely disseminating information in any adjudicative proceeding, regarding the obligations of recipients produce any document, or otherwise under the Act and this part, disclose any information obtained in (2) Permitting a complainant to add the course of the mediation process information to the complaint to meet without prior approval of the head of the requirements of a sufficient com- the mediation agency. plaint, (e) If the complainant and recipient (3) Notifying the complainant and do not reach a mutually satisfactory the recipient (or their representatives) resolution during mediation within of their rights and obligations under sixty (60) days after NEH receives the the complaint procedure, including the complaint, the mediator shall return right to have a representative at all the complaint to NEH for investiga- stages of the complaint procedure, and/ tion. The mediator may return a com- or plaint at any time before the end of the (4) Notifying the complainant and sixty-day period if it appears that the the recipient (or their representatives) complaint cannot be resolved through of their right to contact NEH for infor- mediation or if an agreement is

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reached. The mediator may extend this § 1172.36 Enforcement procedure. sixty-day period, provided NEH con- (a) NEH may enforce the Act and the curs, for not more than thirty (30) regulations in this part through: days, if the mediator determines that (1) Termination of a recipient’s Fed- resolution is likely to occur within eral financial assistance under the pro- such period. gram or activity involved where the recipient has violated the Act or the reg- § 1172.34 Investigation. ulations in this part. Prior to such ter- (a) Initial investigation. (1) NEH will mination, a recipient must have the investigate complaints that are unre- opportunity for a hearing on record be- solved after mediation or are reopened fore an administrative law judge who because of a violation of a mediation must determine that a violation has agreement. occurred. Therefore, NEH will not ter- (i) As part of this initial investiga- minate a recipient’s Federal financial tion, NEH will use informal fact-find- assistance in a case that has been set- ing methods, including joint or sepa- tled in mediation, or prior to a hearing, rate discussions with the complainant unless the case is reopened because of a and the recipient to establish the facts, violation of the settlement agreement. and, if possible, resolve the complaint (2) Any other means authorized by to the mutual satisfaction of the par- law, including but not limited to: ties. NEH may seek the assistance of (i) Referral to the Department of Jus- any involved State agency. tice for proceedings to enforce any rights of the United States or obliga- (ii) NEH will put any settlement tions of the recipient created by the agreement in writing and have it Act or the regulations in this part. signed by the parties and NEH. The (ii) Use of any requirement of, or resettlement is not a finding of discrimi- ferral to, any Federal, State, or local nation against a recipient. government agency that will have the (2) The settlement shall not affect effect of correcting a violation of the the operation of any other enforcement Act or this part. effort of NEH, including compliance re- (b) NEH will limit any termination views and investigation of other com- under § 1172.36(a)(1) to the particular re- plaints which may involve the recipi- cipient and particular program or ac- ent. tivity, or portion thereof, that NEH (b) Formal investigation and finding. If finds in violation of the Act or the reg- NEH cannot resolve the complaint dur- ulations in this part. NEH will not base ing the initial investigation, it will its decision to terminate on any find- complete the investigation of the com- ings with respect to any other program plaint and make a formal finding. If or activity of the recipient that does the formal investigation indicates a not receive Federal financial assist- violation of the Act or the regulations ance from NEH. in this part, NEH will attempt to (c) NEH will not take action under achieve voluntary compliance. If NEH § 1172.36(a) until: cannot obtain voluntary compliance, it (1) The Chairman has advised the re- will begin appropriate enforcement ac- cipient of its failure to comply with tion as provided in § 1172.36. the Act or the regulations in this part, and that NEH has determined that vol- § 1172.35 Prohibition against intimida- untary compliance cannot be obtained, tion or retaliation. and (2) Thirty (30) days have elapsed after A recipient may not engage in acts of the Chairman has sent a written report intimidation or retaliation against any of the circumstances and grounds of person who attempts to assert a right the action to the Congressional Com- protected by the Act or this part, or mittee(s) having legislative jurisdic- cooperates in any mediation, investigation over the program or activity in- tion, hearing, or other part of NEH’s volved. The Chairman will file such re- investigation, conciliation, and en- port whenever it takes action under forcement process. § 1172.36(a).

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(d) NEH also may defer granting new cipient that has discriminated, NEH Federal financial assistance to a recipi- may require both recipients to take re- ent when a hearing under § 1172.36(a)(1) medial action. is initiated. (1) New Federal financial assistance § 1172.39 Alternate funds disbursal includes all assistance for which NEH procedure. requires an application or approval, in- When NEH withholds funds from a re- cluding renewal or continuation of ex- cipient under the regulations in this isting activities, or authorization of part, the Chairman may disburse the new activities, during the deferral pe- withheld funds directly to an alternate riod. New Federal financial assistance recipient otherwise eligible for NEH does not include assistance approved support. NEH will require any alter- prior to the beginning of a termination nate recipient to demonstrate the abil- hearing under § 1172.36(a)(1), or in- ity to comply with the regulations in creases in funding as a result of this part and to achieve the goals of changed computation of formula the National Foundation on the Arts awards. and the Humanities Act of 1965, Pub. L. (2) NEH will not begin a deferral 89–209 (20 U.S.C. 951)—the Federal stat- until the recipient has received a no- ute authorizing the Federal financial tice of an opportunity for a hearing assistance. under § 1172.36(a)(1). NEH will not continue a deferral for more than sixty (60) § 1172.40 Exhaustion of administrative days unless a hearing has begun within remedies. that time, or the time for beginning (a) A complainant may file a civil ac- the hearing has been extended by mu- tion under the Act and the regulations tual written consent of the recipient in this part following the exhaustion of and NEH. NEH will not continue a de- administrative remedies. Administra- ferral for more than thirty (30) days tive remedies are exhausted if one hun- after the close of the hearing, unless dred eighty (180) days have elapsed the hearing results in a finding against since the complainant filed the com- the recipient. plaint and NEH has made no finding (3) NEH will limit any deferral to the with regard to the complaint, or NEH particular recipient and particular pro- issues any finding in favor of the re- gram or activity, or portion thereof, cipient. that NEH finds in violation of the Act (b) If either of the conditions set or the regulations in this part. NEH forth in § 1172.40(a) is satisfied, NEH will not base the deferral decision any will: finding with respect to any other pro- (1) Promptly advise the complainant gram or activity of the recipient that of this fact, does not receive Federal financial as- (2) Advise the complainant of his or sistance from NEH. her right, to bring a civil action for in- junctive relief, and § 1172.37 Hearings, decisions, post-ter- (3) Inform the complainant: mination proceedings. (i) That a civil action can only be Certain NEH procedural provisions brought in a United States district applicable to Title VI of the Civil court for the district in which the re- Rights Act of 1964 apply to NEH en- cipient is found or transacts business, forcement of the regulations in this (ii) That a complainant prevailing in part. They are found at 45 CFR chapter a civil action has the right to be XI, subchapter A, 1110.9 through 1110.11. awarded the costs of the action, including reasonable attorney’s fees, but that § 1172.38 Remedial action by recipi- these costs must be demanded in the ents. complaint, Where NEH finds a recipient has dis- (iii) That before commencing the ac- criminated on the basis of age, the re- tion, the complainant must give thirty cipient shall take any remedial action (30) days’ notice by registered mail to that NEH may require to overcome the the Secretary, the Attorney General of effects of discrimination. If another re- the United States, the Chairman, and cipient exercises control over the re- the recipient,

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(iv) That the notice must state the utive agencies or the United States alleged violation of the Act, the relief Postal Service. requested, the court in which the complainant is bringing the action, and, § 1175.102 Application. whether or not attorney’s fees are de- This part applies to all programs or manded in the event the complainant activities conducted by the agency. prevails, and (v) That no action may be brought if § 1175.103 Definitions. the same alleged violation of the Act For purposes of this part, the term— by the same recipient is the subject of Assistant Attorney General means the a pending action in any court of the Assistant Attorney General, Civil United States. Rights Division, United States Depart- ment of Justice. PART 1174 [RESERVED] Auxiliary aids means services or devices that enable persons with im- PART 1175—ENFORCEMENT OF paired sensory, manual, or speaking skills to have an equal opportunity to NONDISCRIMINATION ON THE participate in, and enjoy the benefits BASIS OF HANDICAP IN PRO- of, programs or activities conducted by GRAMS OR ACTIVITIES CON- the agency. For example, auxiliary aids DUCTED BY THE NATIONAL EN- useful for persons with impaired vision DOWMENT FOR THE HUMANITIES include readers, Brailled materials, audio recordings, telecommunications Sec. devices and other similar services and 1175.101 Purpose. devices. Auxiliary aids useful for per- 1175.102 Application. sons with impaired hearing include 1175.103 Definitions. telephone handset amplifiers, tele- 1175.104–1175.109 [Reserved] phones compatible with hearing aids, 1175.110 Self-evaluation. telecommunication devices for deaf 1175.111 Notice. persons (TDD’s), interpreters, 1175.112–1175.129 [Reserved] notetakers, written materials, and 1175.130 General prohibitions against discrimination. other similar services and devices. 1175.131–1175.139 [Reserved] Complete complaint means a written 1175.140 Employment. statement that contains the complain- 1175.141–1175.148 [Reserved] ant’s name and address and describes 1175.149 Program accessibility: Discrimina- the agency’s alleged discriminatory action prohibited. tion in sufficient detail to inform the 1175.150 Program accessibility: Existing fa- agency of the nature and date of the al- cilities. leged violation of section 504. It shall 1175.151 Program accessibility: New con- be signed by the complainant or by struction and alterations. someone authorized to do so on his or 1175.152–1175.159 [Reserved] 1175.160 Communications. her behalf. Complaints filed on behalf 1175.161–1175.169 [Reserved] of classes or third parties shall describe 1175.170 Compliance procedures. or identify (by name, if possible) the 1175.171–1175.999 [Reserved] alleged victims of discrimination. Facility means all or any portion of AUTHORITY: 29 U.S.C. 794. buildings, structures, equipment, SOURCE: 51 FR 4578, 4579, Feb. 5, 1986, unless roads, walks, parking lots, rolling otherwise noted. stock or other conveyances, or other real or personal property. § 1175.101 Purpose. Handicapped person means any person This part effectuates section 119 of who has a physical or mental impair- the Rehabilitation, Comprehensive ment that substantially limits one or Services, and Developmental Disabil- more major life activities, has a record ities Amendments of 1978, which of such an impairment, or is regarded amended section 504 of the Rehabilita- as having such an impairment. tion Act of 1973 to prohibit discrimina- As used in this definition, the phrase: tion on the basis of handicap in pro- (1) Physical or mental impairment in- grams or activities conducted by Exec- cludes—

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(i) Any physiological disorder or con- agency can demonstrate would result dition, cosmetic disfigurement, or ana- in a fundamental alteration in its na- tomical loss affecting one of more of ture; or the following body systems: Neuro- (2) With respect to any other pro- logical; musculoskeletal; special sense gram or activity, a handicapped person organs; respiratory, including speech who meets the essential eligibility re- organs; cardiovascular; reproductive; quirements for participation in, or re- digestive; genitourinary; hemic and ceipt of benefits from, that program or lymphatic; skin; and endocrine; or activity. (ii) Any mental or psychological dis- (3) Qualified handicapped person is de- order, such as mental retardation, or- fined for purposes of employment in 29 ganic brain syndrome, emotional or mental illness, and specific learning CFR 1613.702(f), which is made applica- disabilities. The term physical or mental ble to this part by § 1175.140. impairment includes, but is not limited Section 504 means section 504 of the to, such diseases and conditions as or- Rehabilitation Act of 1973 (Pub. L. 93– thopedic, visual, speech, and hearing 112, 87 Stat. 394 (29 U.S.C. 794)), as impairments, cerebral palsy, epilepsy, amended by the Rehabilitation Act muscular dystrophy, multiple sclerosis, Amendments of 1974 (Pub. L. 93–516, 88 cancer, heart disease, diabetes, mental Stat. 1617), and the Rehabilitation, retardation, emotional illness, and Comprehensive Services, and Develop- drug addition and alcholism. mental Disabilities Amendments of (2) Major life activities includes func- 1978 (Pub. L. 95–602, 92 Stat. 2955). As tions such as caring for one’s self, per- used in this part, section 504 applies forming manual tasks, walking, seeing, only to programs or activities con- hearing, speaking, breathing, learning, ducted by Executive agencies and not and working. to federally assisted programs. (3) Has a record of such an impairment means has a history of, or has been [51 FR 4578, 4579, Feb. 5, 1986; 51 FR 7543, Mar. misclassified as having, a mental or 5, 1986] physical impairment that substantially limits one or more major life activi- §§ 1175.104–1175.109 [Reserved] ties. § 1175.110 Self-evaluation. (4) Is regarded as having an impairment means— (a) The agency shall, by April 9, 1987, (i) Has a physical or mental impair- evaluate its current policies and prac- ment that does not substantially limit tices, and the effects thereof, that do major life activities but is treated by not or may not meet the requirements the agency as constituting such a limi- of this part, and, to the extent modi- tation; fication of any such policies and prac- (ii) Has a physical or mental impair- tices is required, the agency shall pro- ment that substantially limits major ceed to make the necessary modifica- life activities only as a result of the at- tions. titudes of others toward such impair- (b) The agency shall provide an opment; or portunity to interested persons, includ- (iii) Has none of the impairments de- ing handicapped persons or organiza- fined in paragraph (1) of this definition tions representing handicapped per- but is treated by the agency as having sons, to participate in the self-evalua- such an impairment. tion process by submitting comments Qualified handicapped person means— (1) With respect to any agency pro- (both oral and written). gram or activity under which a person (c) The agency shall, until three is required to perform services or to years following the completion of the achieve a level of accomplishment, a self-evaluation, maintain on file and handicapped person who meets the es- make available for public inspections: sential eligibility requirements and (1) A description of areas examined who can achieve the purpose of the pro- and any problems identified, and gram or activity without modifications (2) A description of any modifications in the program or activity that the made.

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§ 1175.111 Notice. (vi) Otherwise limit a qualified The agency shall make available to handicapped person in the enjoyment employees, applicants, participants, of any right, privilege, advantage, or beneficiaries, and other interested per- opportunity enjoyed by others receiv- sons such information regarding the ing the aid, benefit, or service. provisions of this part and its applica- (2) The agency may not deny a quali- bility to the programs or activities fied handicapped person the oppor- conducted by the agency, and make tunity to participate in programs or such information available to them in activities that are not separate or dif- such manner as the head of the agency ferent, despite the existence of permis- finds necessary to apprise such persons sibly separate or different programs or of the protections against discrimina- activities. tion assured them by section 504 and (3) The agency may not, directly or this regulation. through contractual or other arrangements, utilize criteria or methods of §§ 1175.112–1175.129 [Reserved] administration the purpose or effect of § 1175.130 General prohibitions which would— against discrimination. (i) Subject qualified handicapped per- (a) No qualified handicapped person sons to discrimination on the basis of shall, on the basis of handicap, be ex- handicap; or cluded from participation in, be denied (ii) Defeat or substantially impair ac- the benefits of, or otherwise be sub- complishment of the objectives of a jected to discrimination under any pro- program or activity with respect to gram or activity conducted by the handicapped persons. agency. (4) The agency may not, in deter- (b)(1) The agency, in providing any mining the site or location of a facil- aid, benefit, or service, may not, di- ity, make selections the purpose or ef- rectly or through contractual, licens- fect of which would— ing, or other arrangements, on the (i) Exclude handicapped persons basis of handicap— from, deny them the benefits of, or oth- (i) Deny a qualified handicapped per- erwise subject them to discrimination son the opportunity to participate in under any program or activity con- or benefit from the aid, benefit, or service; ducted by the agency; or (ii) Afford a qualfied handicapped (ii) Defeat or substantially impair person an opportunity to participate in the accomplishment of the objectives or benefit from the aid, benefit, or of a program or activity with respect service that is not equal to that af- to handicapped persons. forded others; (5) The agency, in the selection of (iii) Provide a qualified handicapped procurement contractors, may not use person with an aid, benefit, or service criteria that subject qualified handi- that is not as effective in affording capped persons to discrimination on equal opportunity to obtain the same the basis of handicap. result, to gain the same benefit, or to (c) The exclusion of nonhandicapped reach the same level of achievement as persons from the benefits of a program that provided to others; limited by Federal statute or Execu- (iv) Provide different or separate aid, tive order to handicapped persons or benefits, or services to handicapped the exclusion of a specific class of persons or to any class of handicapped handicapped persons from a program persons than is provided to others un- limited by Federal statute or Execu- less such action is necessary to provide tive order to a different class of handi- qualified handicapped persons with aid, benefits, or services that are as effec- capped persons is not prohibited by tive as those provided to others; this part. (v) Deny a qualified handicapped per- (d) The agency shall administer pro- son the opportunity to participate as a grams and activities in the most inte- member of planning or advisory boards; grated setting appropriate to the needs or of qualified handicapped persons.

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§§ 1175.131–1175.139 [Reserved] after considering all agency resources available for use in the funding and op- § 1175.140 Employment. eration of the conducted program or No qualified handicapped person activity, and must be accompanied by shall, on the basis of handicap, be sub- a written statement of the reasons for jected to discrimination in employ- reaching that conclusion. If an action ment under any program or activity would result in such an alteration or conducted by the agency. The defini- such burdens, the agency shall take tions, requirements, and procedures of any other action that would not result section 501 of the Rehabilitation Act of in such an alteration or such burdens 1973 (29 U.S.C. 791), as established by but would nevertheless ensure that the Equal Employment Opportunity handicapped persons receive the bene- Commission in 29 CFR part 1613, shall fits and services of the program or ac- apply to employment in federally con- tivity. ducted programs or activities. (b) Methods. The agency may comply with the requirements of this section §§ 1175.141–1175.148 [Reserved] through such means as redesign of § 1175.149 Program accessibility: Dis- equipment, reassignment of services to crimination prohibited. accessible buildings, assignment of Except as otherwise provided in aides to beneficiaries, home visits, de- § 1175.150, no qualified handicapped per- livery of services at alternate acces- son shall, because the agency’s facili- sible sites, alteration of existing facilities are inaccessible to or unusable by ties and construction of new facilities, handicapped persons, be denied the use of accessible rolling stock, or any benefits of, be excluded from participa- other methods that result in making tion in, or otherwise be subjected to its programs or activities readily ac- discrimination under any program or cessible to and usable by handicapped activity conducted by the agency. persons. The agency is nor required to make structural changes in existing fa- § 1175.150 Program accessibility: Exist- cilities where other methods are effec- ing facilities. tive in achieving compliance with this (a) General. The agency shall operate section. The agency, in making alter- each program or activity so that the ations to existing buildings, shall meet program or activity, when viewed in its accessibility requirements to the ex- entirety, is readily accessible to and tent compelled by the Architectural usable by handicapped persons. This Barriers Act of 1968, as amended (42 paragraph does not— U.S.C. 4151 through 4157), and any regu- (1) Necessarily require the agency to lations implementing it. In choosing make each of its existing facilities ac- among available methods for meeting cessible to and usable by handicapped the requirements of this section, the persons; or agency shall give priority to those (2) Require the agency to take any methods that offer programs and ac- action that it can demonstrate would tivities to qualified handicapped per- result in a fundamental alteration in sons in the most integrated setting ap- the nature of a program or activity or propriate. in undue financial and administrative burdens. In those circumstances where (c) Time period for compliance. The agency personnel believe that the pro- agency shall comply with the obliga- posed action would fundamentally tions established under this section by alter the program or activity or would June 6, 1986, except that where struc- result in undue financial and adminis- tural changes in facilities are under- trative burdens, the agency has the taken, such changes shall be made by burden of proving that compliance with April 7, 1989, but in any event as expe- § 1175.150(a) would result in such alter- ditiously as possible. ation or burdens. The decision that (d) Transition plan. In the event that compliance would result in such alter- structural changes to facilities will be ation or burdens must be made by the undertaken to achieve program acces- agency head or his or her designee sibility, the agency shall develop, by

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October 7, 1986, a transition plan set- enjoy the benefits of, a program or acting forth the steps necessary to com- tivity conducted by the agency. plete such changes. The agency shall (i) In determining what type of auxil- provide an opportunity to interested iary aid is necessary, the agency shall persons, including handicapped persons give primary consideration to the re- or organizations representing handi- quests of the handicapped person. capped persons, to participate in the (ii) The agency need not provide indi- development of the transition plan by vidually prescribed devices, readers for submitting comments (both oral and personal use or study, or other devices written). A copy of the transition plan of a personal nature. shall be made available for public in- (2) Where the agency communicates spection. The plan shall, at a min- with applicants and beneficiaries by imum— (1) Identify physical obstacles in the telephone, telecommunication devices agency’s facilities that limit the acces- for deaf persons (TDD’s) or equally ef- sibility of its programs or activities to fective telecommunication systems handicapped persons; shall be used. (2) Describe in detail the methods (b) The agency shall ensure that in- that will be used to make the facilities terested persons, including persons accessible; with impaired vision or hearing, can (3) Specify the schedule for taking obtain information as to the existence the steps necessary to achieve compli- and location of accessible services, ac- ance with this section and, if the time tivities, and facilities. period of the transition plan is longer (c) The agency shall provide signage than one year, identify steps that will at a primary entrance to each of its in- be taken during each year of the tran- accessible facilities, directing users to sition period; and a location at which they can obtain in- (4) Indicate the official responsible formation about accessible facilities. for implementation of the plan. The international symbol for accessi- [51 FR 4578, 4579, Feb. 5, 1986; 51 FR 7543, Mar. bility shall be used at each primary en- 5, 1986] trance of an accessible facility. (d) This section does not require the § 1175.151 Program accessibility: New agency to take any action that it can construction and alterations. demonstrate would result in a funda- Each building or part of a building mental alteration in the nature of a that is constructed or altered by, on program or activity or in undue finan- behalf of, or for the use of the agency cial and administrative burdens. In shall be designed, constructed, or al- those circumstances where agency per- tered so as to be readily accessible to sonnel believe that the proposed action and usable by handicapped persons. would fundamentally alter the program The definitions, requirements, and or activity or would result in undue fi- standards of the Architectural Barriers nancial and administrative burdens, Act (42 U.S.C. 4151 through 4157), as es- the agency has the burden of proving tablished in 41 CFR 101–19.600 to 101– that compliance with § 1175.160 would 19.607, apply to buildings covered by result in such alteration or burdens. this section. The decision that compliance would re- §§ 1175.152–1175.159 [Reserved] sult in such alteration or burdens must be made by the agency head or his or § 1175.160 Communications. her designee after considering all agen- (a) The agency shall take appropriate cy resources available for use in the steps to ensure effective communica- funding and operation of the conducted tion with applicants, participants, per- program or activity, and must be ac- sonnel of other Federal entities, and companied by a written statement of members of the public. the reasons for reaching that conclu- (1) The agency shall furnish appro- sion. If an action required to comply priate auxiliary aids where necessary with this section would result in such to afford a handicapped person an equal an alteration or such burdens, the opportunity to participate in, and agency shall take any other action

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that would not result in such an alter- complainant of the results of the inves- ation or such burdens but would never- tigation in a letter containing— theless ensure that, to the maximum (1) Findings of fact and conclusions extent possible, handicapped persons of law; receive the benefits and services of the (2) A description of a remedy for each program or activity. violation found; (3) A notice of the right to appeal. §§ 1175.161–1175.169 [Reserved] (h) Appeals of the findings of fact and conclusions of law or remedies must be § 1175.170 Compliance procedures. filed by the complainant within 90 days (a) Except as provided in paragraph of receipt from the agency of the letter (b) of this section, this section applies required by § 1175.170(g). The agency to all allegations of discrimination on may extend this time for good cause. the basis of handicap in programs or (i) Timely appeals shall be accepted and processed by the head of the agen- activities conducted by the agency. cy. (b) The agency shall process com- (j) The head of the agency shall no- plaints alleging violations of section tify the complainant of the results of 504 with respect to employment accord- the appeal within 60 days of the receipt ing to the procedures established by of the request. If the head of the agen- the Equal Employment Opportunity cy determines that additional informa- Commission in 29 CFR part 1613 pursu- tion is needed from the complainant, ant to section 501 of the Rehabilitation he or she shall have 60 days from the Act of 1973 (29 U.S.C. 791). date of receipt of the additional infor- (c) The Director, Office of Equal Op- mation to make his or her determina- portunity shall be responsible for co- tion on the appeal. ordinating implementation of this sec- (k) The time limits cited in para- tion. Complaints may be sent to Direc- graphs (g) and (j) of this section may be tor, Office of Equal Opportunity, Na- extended with the permission of the tional Endowment for the Humanities, Assistant Attorney General. 1100 Pennsylvania Avenue, NW., Room (l) The agency may delegate its au- 419, Washington, DC 20506. thority for conducting complaint in- (d) The agency shall accept and investigations to other Federal agencies, vestigate all complete complaints for except that the authority for making which it has jurisdiction. All complete the final determination may not be complaints must be filed within 180 delegated to another agency. days of the alleged act of discrimina- [51 FR 4578, 4579, Feb. 5, 1986, as amended at tion. The agency may extend this time 51 FR 4578, Feb. 5, 1986] period for good cause. (e) If the agency receives a complaint §§ 1175.171–1175.999 [Reserved] over which it does not have jurisdiction, it shall promptly notify the com- PART 1176—PART-TIME CAREER plainant and shall make reasonable ef- EMPLOYMENT forts to refer the complaint to the appropriate government entity. Sec. (f) The agency shall notify the Archi- 1176.1 General. tectural and Transportation Barriers 1176.2 Definitions. Compliance Board upon receipt of any 1176.3 Criteria. complaint alleging that a building or 1176.4 Establishing and converting part- time positions. facility that is subject to the Architec- 1176.5 Annual plan. tural Barriers Act of 1968, as amended 1176.6 Review and evaluation. (42 U.S.C. 4151 through 4157), or section 1176.7 Publicizing vacancies. 502 of the Rehabilitation Act of 1973, as 1176.8 Exceptions. amended (29 U.S.C. 792), is not readily 1176.9–1176.99 [Reserved] accessible to and usable by handi- AUTHORITY: Federal Employees Part-Time capped persons. Career Employment Act of 1978, Pub. L. 95– (g) Within 180 days of the receipt of a 437, 92 Stat. 1055, 5 U.S.C. 3401–3408. complete complaint for which it has ju- SOURCE: 46 FR 35647, July 10, 1981, unless risdiction, the agency shall notify the otherwise noted.

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§ 1176.1 General. § 1176.4 Establishing and converting (a) Purpose. Many individuals in soci- part-time positions. ety possess great productive potential Position management and other in- which goes unrealized because they ternal reviews may indicate that posi- cannot meet the requirements of a tions may be either converted from standard workweek. Permanent part- full-time or initially established as time employment also provides bene- part-time positions. Criteria listed in fits to other individuals in a variety of § 1176.3 may be used during these re- ways, such as providing older individ- views. If a decision is made to convert uals with a gradual transition into re- to or to establish a part-time position, tirement, providing employment op- regular position management and clas- portunities to handicapped individuals sification procedures will be followed. or others who require a reduced workweek, providing parents with opportu- § 1176.5 Annual plan. nities to balance family responsibil- (a) An agencywide plan for promoting ities with the need for added income, part-time employment opportunities and assisting students who must fi- will be developed annually. This plan nance their own education or voca- will establish annual goals and set in- tional training. In view of this, the Na- terim and final deadlines for achieving tional Endowment for the Humanities these goals. This plan will be applica- will operate a part-time career employ- ble throughout the agency, and will be ment program, consistent with its re- transmitted to the Office of Personnel sponsibilities and in accordance with Management with the required report Public Law 95–437, the Federal Employ- to OPM on the status of the program as ees’ Part-Time Career Employment of September 30 of each year. Act of 1978. (b) Beginning in FY 1981 in admin- (b) Program Coordinator. The Per- istering personnel ceilings, part-time sonnel Officer is responsible for pro- career employees shall be counted gram operation and coordination. against ceiling authorizations as a fraction. This will be determined by di- § 1176.2 Definitions. viding 40 hours into the average num- (a) Part-time employment means em- ber of hours of such employee’s regu- ployment of 16 to 32 hours a week larly scheduled workweek. under a schedule consisting of an equal or varied number of hours per day, § 1176.6 Review and evaluation. whether in a position which would be Regular employment reports will be part-time without regard to the Act or used to determine levels of part-time one established to allow job-sharing or employment. This program will also be comparable arrangements, but does not designated an item of special interest include employment on a temporary or to be reviewed during personnel man- intermittent basis. agement reviews. (b) Career employment includes competitive and excepted service employ- § 1176.7 Publicizing vacancies. ees in tenure groups I and II. When applicants from outside the Federal service are desired, part-time § 1176.3 Criteria. vacanies may be publicized through Positions becoming vacant, unless various recruiting means, such as: excepted as provided by § 1176.8, will be (a) Federal Job Information Centers. reviewed to determine the feasibility of (b) State Employment Offices. converting them to part-time. Among (c) Veterans’ Administration Re- the criteria which may be used when cruiting Bulletins. conducting this review are: (a) Mission requirements. § 1176.8 Exceptions. (b) Workload. (a) The Personnel Officer may except (c) Employment ceilings and budg- positions from inclusion in this pro- etary considerations. gram to provide fewer than 16 hours (d) Availability of qualified appli- per week. This will normally be done in cants willing to work part-time. furtherance of special hiring programs

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such as the Stay-in-School or Handi- 4 CFR parts 101 through 105, as amend- capped Employment Program. ed by 49 FR 8889, 5 U.S.C. 552a, and Of- (b) On occasions when it becomes fice of Management and Budget Cir- necessary to allow supervisors and cular A–129. The activities covered in- managers to temporarily increase the clude: collecting claims in any amount; hours of duty of employees above 32 compromising claims, or suspending or hours per week for limited and specific terminating the collection of claims periods of time to meet heavy work- that do not exceed $20,000 exclusive of loads, perform special assignments, interest and charges, and referring permit employee training, etc., the En- debts that cannot be disposed of by the dowment policy is as follows: Endowment to the Department of Jus- (1) Requests to work NEH employees tice or to the General Accounting Of- on a 32 hour/week appointment more fice for further administrative action than 32 hours must be submitted in ad- or litigation. vance to the Personnel Office; (2) Justification should be concise § 1177.2 Definitions. but specific and must state the exact For the purpose of this part the fol- time frame for the increase in hours lowing definitions will apply: above 32 hours per week; and (a) Claim or debt means an amount of (3) The Program Coordinator will de- property owed to the United States. cide if the request meets the intent of These include but are not limited to: the law and this agency’s policy. Overpayments to program beneficiaries; overpayments to contractors §§ 1176.9–1176.99 [Reserved] and grantees, including overpayments arising from audit disallowances; ex- PART 1177—CLAIMS COLLECTION cessive cash advances to grantees and contractors; and civil penalties and as- Sec. sessments. A debt is overdue or delin- 1177.1 Purpose and scope. quent if it is not paid by the due date 1177.2 Definitions. 1177.3 Other remedies. specified in the initial notice of the 1177.4 Claims involving criminal activity or debt (see § 1177.6 of this part) or if the misconduct. debtor fails to satisfy his or her obliga- 1177.5 Collection. tion under a repayment agreement. 1177.6 Notice to debtor. (b) Debtor means an individual, orga- 1177.7 Interest, penalties, and administra- nization, group, association, partner- tive costs. ship, or corporation indebted to the 1177.8 Administrative offset. 1177.9 Use of credit reporting agencies. United States, or the person or entity 1177.10 Collection services. with legal responsibility for assuming 1177.11 Referral to the Department of Jus- the debtor’s obligation. tice or the General Accounting Office. (c) Endowment means the National 1177.12 Compromise, suspension and termi- Endowment for the Humanities. nation. (d) Administrative offset means satis- 1177.13 Omissions not a defense. fying a debt by withholding money 1177.14–1177.99 [Reserved] payable by the United States to or held AUTHORITY: 31 U.S.C. 3711, 3716–3719. by the United States for a debtor. SOURCE: 51 FR 20484, June 5, 1986, unless otherwise noted. § 1177.3 Other remedies. The remedies and sanctions available § 1177.1 Purpose and scope. to the National Endowment for the Hu- This part prescribes standards and manities under this part are not in- procedures for officers and employees tended to be exclusive. The Chair- of the National Endowment for the Hu- person of the National Endowment for manities who are responsible for the the Humanities or his designee may collection and disposition of debts impose other appropriate sanctions owed to the United States. The author- upon a debtor for prolonged or repeated ity for this part is the Federal Claims failure to pay a debt. For example, the Collection Act of 1966, as amended, 31 Chairperson or his designee may place U.S.C. 3711 and 3716 through 3719; the the debtor’s name on a list of debarred, Federal Claims Collection Standards at suspended, or ineligible grantees and

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contractors, convert the method of § 1177.6 Notice to debtor. payment under a grant from an ad- The first written demand for pay- vance to a reimbursement method, or ment must inform the debtor of the fol- revoke a grantee’s letter of credit. In lowing: such cases the debtor will be advised of (a) The amount and nature of the the Endowment’s action. debt: (b) The date payment is due, which § 1177.4 Claims involving criminal activity or misconduct. will generally be 30 days from the date the notice was mailed; (a) A debtor whose indebtedness in- (c) The assessment of interest under volves criminal activity such as fraud, § 1177.7 from the date the notice was embezzlement, theft, or misuse of gov- mailed if payment is not received with- ernment funds or property is subject to in the 30 days; punishment by fine or imprisonment as (d) The right to dispute the debt; well as to a civil claim by the United (e) The office, address and telphone States for compensation for the mis- number that the debtor should contact appropriated funds. The Endowment to discuss repayment and reconsider- will refer these cases to the appro- ation of the debt and; priate law enforcement agency for (f) The sanctions available to the Na- prosecution. tional Endowment for the Humanities (b) Debts involving fraud, false, to collect a delinquent debt including, claims, or misrepresentation shall not but not limited to, referral of the debt be compromised, terminated, sus- to a credit reporting agency, a private pended, or otherwise disposed of under collection bureau, or the Department this rule. Only the Department of Jus- of Justice for litigation. tice is authorized to compromise, terminate, suspend, or otherwise dispose § 1177.7 Interest, penalties, and admin- of such debts. istrative costs. (a) Interest will accrue on all debts § 1177.5 Collection. from the date when the first notice of (a) The Endowment will take aggres- the debt and the interest requirement sive action to collect debts and reduce is mailed to the last known address or delinquencies. Collection efforts shall hand-delivered to the debtor if the debt include sending to the debtor’s last is not paid within 30 days from the date known address a total of three progres- the first notice was mailed. The En- sively stronger written demands for dowment will charge an annual rate of payment at not more than 30 day inter- interest that is equal to the average in- vals. When necessary to protect the vestment rate for the Treasury tax and Government’s interest, written demand loan accounts on September 30 of each may be preceded by other appropriate year, rounded to the nearest whole per action, including immediate referral centum. This rate, which represents for litigation. Other contact with the the current value of funds to the debtor or his or her representative or United States Treasury, may be revised guarantor by telephone, in person and/ quarterly by the Secretary of the or in writing may be appropriate to de- Treasury and is published by the Sec- mand prompt payment, to discuss the retary of the Treasury annually or debtor’s position regarding the exist- quarterly in the FEDERAL REGISTER and ence, amount and repayment of the the Treasury Financial Manual Bul- debt, and to inform the debtor of his or letins. her rights and the effect of non- (b) The rate of interest initially as- payment or delayed payment. A debtor sessed will remain fixed for the dura- who disputes a debt must promptly tion of the indebtedness, except that if provide available supporting evidence. a debtor defaults on a repayment (b) If a debtor is involved in insol- agreement interest may be set at the vency proceedings, the debt will be re- Treasury rate in effect on the date a ferred to the appropriate United States new agreement is executed. Attorney to file a claim. The United (c) The Endowment shall charge States may have a priority over other debtors for administrative costs in- creditors under 31 U.S.C. 3713. curred in handling overdue debts.

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(d) Interest will not be charged on ad- tive offset against a payment to be ministrative costs. made to a debtor prior to the comple- (e) The Endowment shall assess a tion of the procedures required by penalty charge, not to exceed 6 per paragraph (c) of this section if: cent per year on debts which have been (1) Failure to offset would substan- delinquent for more than 90 days. This tially prejudice the Government’s abil- charge shall accrue from the date that ity to collect the debt and the debt became delinquent. (2) The time before the payment is to (f) The Chairperson or his designee be made does not reasonably permit may waive in whole or in part the col- completion of those procedures. lection of interest and administrative and penalty charges if determined that § 1177.9 Use of credit reporting agen- collection would be against equity or cies. not in the best interests of the United (a) The Endowment may report delin- States. The Endowment shall waive the quent accounts to credit reporting collection of interest on the debt or agencies consistent with the notice re- any part of the debt which is paid with- quirements contained in the § 1177.6 of in 30 days after the date on which in- this part. Individual debtors must be terest began to accrue. given at least 60 days written notice that the debt is overdue and will be re- § 1177.8 Administrative offset. ported to a credit reporting agency. (a) The Endowment may collect debts (b) Debts may be reported to con- owed by administrative offset if: sumer or commercial reporting agen- (1) The debt is certain in amount; cies. Consumer reporting agencies are (2) Efforts to obtain direct payment defined in 31 U.S.C. 3701(a)(3) pursuant have been, or would most likely be un- to 5 U.S.C. 552a(b)(12) and 31 U.S.C. successful, or the Endowment and the 3711(f). The Endowment may disclose debtor agree to the offset; only an individual’s name, address, so- (3) Offset is cost effective or has sig- cial security number, and the nature, nificant deterrent value; and amount, status and history of the debt (4) Offset is best suited to further and and the program under which the claim protect the Government’s interest. arose. (b) The Endowment may offset a debt owed to another Federal agency from § 1177.10 Collection services. amounts due or payable by the Endow- (a) The Endowment may contract for ment to the debtor or request another collection services to recover out- Federal agency to offset a debt owed to standing debts. The Endowment may the Endowment; refer delinquent debts to private col- (c) Prior to initiating administrative lection agencies listed on the schedule offset, the National Endowment for the compiled by the General Services Ad- Humanities will send the debtor writ- ministration. In such contracts, the ten notice of the following: National Endowment for the Human- (1) The nature and amount of the ities will retain the authority to re- debt and the agency’s intention to col- solve disputes, compromise claims, ter- lect the debt by offset 30 days from the minate or suspend collection, and refer date the notice was mailed if neither the matter to the Department of Jus- payment nor a satisfactory response is tice or the General Accounting Office. received by that date; (b) The contractor shall be subject to (2) The debtor’s right to an oppor- the disclosure provisions of the Privacy tunity to submit a good faith alter- Act of 1974, as amended (5 U.S.C. native repayment schedule to inspect 552a(m)), and to applicable federal and and copy agency records pertaining to state laws and regulations pertaining the debt, to request a review of the de- to debt collection practices, including termination of indebtedness; and to the Fair Debt Collection Practices Act, enter into a written agreement to 15 U.S.C. 1692. The contractor shall be repay the debt and; strictly accountable for all amounts (3) The applicable interest. collected. (d) The National Endowment for the (c) The contractor shall be required Humanities may effect an administra- to provide to the Endowment any data

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contained in its files relating to the § 1178.1 Purpose and scope. debt account upon agency request or upon returning an account to the En- (a) The Chairperson of the National dowment for referral to the Depart- Endowment for the Humanities (NEH) ment of Justice for litigation. may direct the agency to use penalty mail to assist in the location and re- § 1177.11 Referral to the Department covery of missing children. When de- of Justice or the General Account- termined to be appropriate and cost-ef- ing Office. fective, the National Endowment for Debts over $600 but less than $100,000 the Humanities may print, insert or which the Endowment determines can use any other effective method to affix neither be collected nor otherwise dis- pictures and biographical data relating posed of will be referred for litigation to missing children on NEH mail. The to the United States Attorney in whose contact person for matters related to judicial district the debtor is located. the implementation of this part is Claims for amounts exceeding $100,000 Tracy J. Joselson, Esq. Office of the shall be referred for litigation to the General Counsel, National Endowment Commercial Litigation Branch, Civil for the Humanities, 1100 Pennsylvania Division of the Department of Justice. Avenue, NW., Washington, DC 20506, § 1177.12 Compromise, suspension and (202) 786–0322. termination. (b) The National Center for Missing (a) The Chairperson of the National and Exploited Children will be the ex- Endowment for the Humanities or his clusive source from which the National designee may compromise, suspend or Endowment for the Humanities will ob- terminate the collection of debts where tain photographic and biographical in- the outstanding principal is not great- formation for dissemination to the er than $20,000. Endowment procedures public. for writing off outstanding accounts (c) It is estimated that the National are available to the public. Endowment for the Humanities will (b) The Chairperson of the National incur no additional costs to implement Endowment for the Humanities may this program during its initial year. compromise, suspend or terminate col- This estimate is based on a review of lection of debts where the outstanding Endowment mailings that would maxi- principal is greater than $20,000 only mize dissemination of this informa- with the approval of, or by referral to tion. the United States Attorney or the De- partment of Justice. [51 FR 20974, June 10, 1986] (c) The Chairman of the National En- dowment for the Humanities will refer § 1178.2 Withdrawal of information. to the General Accounting Office The National Endowment for the Hu- (GAO) debts arising from GAO audit manities will withdraw or exhaust the exceptions. supply of all materials bearing the photograph and biographical information § 1177.13 Omissions not a defense. of a missing child within a three month Failure to comply with any provi- period from the date the National Cen- sions of this rule may not serve as a deter for Missing and Exploited Children fense to any debtor. receives notice that the child has been §§ 1177.14–1177.99 [Reserved] recovered or that the parents or guardian of the child have revoked permis- PART 1178—USE OF PENALTY MAIL sion to use the information. The Na- IN THE LOCATION AND RECOV- tional Center for Missing and Exploited Children will be responsible for imme- ERY OF MISSING CHILDREN diately notifying the agency contact, in writing, of the need to withdraw or Sec. 1178.1 Purpose and scope. remove this material. 1178.2 Withdrawal of information. [51 FR 20974, June 10, 1986] AUTHORITY: 39 U.S.C. 3220.

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PART 1179—SALARY OFFSET (d) This regulation does not preclude the compromise, suspension, or termi- Sec. nation of collection action where ap- 1179.1 Purpose and scope. propriate under the standards imple- 1179.2 Definitions. menting the Federal Claims Collection 1179.3 Applicability. Act 31 U.S.C. 3711 et seq. 4 CFR parts 101 1179.4 Notice requirements. through 105 45 CFR part 1177. 1179.5 Hearing. (e) This regulation does not preclude 1179.6 Written decision. an employee from requesting waiver of 1179.7 Coordinating offset with another Fed- an overpayment under 5 U.S.C. 5584, 10 eral agency. U.S.C. 2774 or 32 U.S.C. 716 or in any 1179.8 Procedures for salary offset. way questioning the amount or valid- 1179.9 Refunds. ity of the debt by submitting a subse- 1179.10 Statute of limitations. quent claim to the General Accounting 1179.11 Non-waiver of rights. 1179.12 Interest, penalties, and administra- Office. This regulation does not pre- tive costs. clude an employee from requesting a waiver pursuant to other statutory AUTHORITY: 5 U.S.C. 5514, E.O. 11809 (redes- provisions applicable to the particular ignated E.O. 12107), and 5 CFR part 550, subpart K. debt being collected. (f) Matters not addressed in these SOURCE: 52 FR 28472, July 30, 1987, unless regulations should be reviewed in ac- otherwise noted. cordance with the Federal Claims Col- lection Standards at 4 CFR 101.1 et seq. § 1179.1 Purpose and scope. (a) This regulation provides proce- § 1179.2 Definitions. dures for the collection by administra- For the purposes of the part the fol- tive offset of a Federal employee’s sal- lowing definitions will apply: ary without his/her consent to satisfy Agency means an executive agency as certain debts owed to the Federal gov- is defined at 5 U.S.C. 105 including the ernment. These regulations apply to all U.S. Postal Service, the U.S. Postal Federal employees who owe debts to Commission, a military department as the National Endowment for the Hu- defined at 5 U.S.C. 102, an agency or manities (NEH) and to current employ- court in the judicial branch, an agency ees of the National Endowment for the of the legislative branch including the Humanities who owe debts to other U.S. Senate and House of Representa- Federal agencies. This regulation does tives and other independent establish- not apply when the employee consents ments that are entities of the Federal to recovery from his/her current pay government. account. Chairperson means the Chairperson of (b) This regulation does not apply to the National Endowment for the Hu- debts or claims arising under: manities or the Chairperson’s designee. (1) The Internal Revenue Code of 1954, Creditor agency means the agency to as amended, 26 U.S.C. 1 et seq; which the debt is owed. (2) The Social Security Act, 42 U.S.C. Debt means an amount owed to the 301 et seq; United States from sources which in- (3) The tariff laws of the United clude loans insured or guaranteed by States; or the United States and all other (4) Any case where a collection of a amounts due the United States from debt by salary offset is explicitly pro- fees, leases, rents, royalties, services, vided for or prohibited by another stat- sales or real or personal property, over- ute. payments, penalties, damages, inter- (c) This regulation does not apply to ests, fines, forfeitures, (except those any adjustment to pay arising out of arising under the Uniform Code of Mili- an employee’s selection of coverage or tary Justice) and all other similar a change in coverage under a Federal sources. benefits program requiring periodic de- Disposable pay means the amount ductions from pay if the amount to be that remains from an employee’s Fed- recovered was accumulated over four eral pay after required deductions for pay periods or less. social security, Federal, state or local

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income tax, health insurance pre- (4) An explanation of interest, pen- miums, retirement contributions, life alties, and administrative charges, in- insurance premiums, Federal employ- cluding a statement that such charges ment taxes, and any other deductions will be assessed unless excused in ac- that are required to be withheld by cordance with the Federal Claims Col- law. lections Standards at 4 CFR 101.1 et Hearing official means an individual seq.; responsible for conducting any hearing (5) The employee’s right to inspect, with respect to the existence or request, or receive a copy of govern- amount of a debt claimed, and who ren- ment records relating to the debt; ders a decision on the basis of such (6) The opportunity to establish a hearing. A hearing official may not be written schedule for the voluntary re- under the supervision or control of the payment of the debt; Chairperson of the National Endow- (7) The right to a hearing conducted ment for the Humanities. by an impartial hearing official; Paying Agency means the agency that (8) The methods and time period for employes the individual who owes the petitioning for hearings; debt and authorizes the payment of his/ (9) A statement that the timely filing her current pay. of a petition for a hearing will stay the Salary offset means an administrative commencement of collection pro- offset to collect a debt pursuant to 5 ceedings; U.S.C. 5514 by deduction(s) at one or (10) A statement that a final decision more officially established pay inter- on the hearing will be issued not later vals from the current pay account of than 60 days after the filing of the peti- an employee without his/her consent. tion requesting the hearing unless the employee requests and the hearing offi- § 1179.3 Applicability. cial grants a delay in the proceedings; (11) A statement that knowingly (a) These regulations are to be fol- false or frivolous statements, represen- lowed when: tations, or evidence may subject the (1) The National Endowment for the employee to appropriate disciplinary Humanities is owed a debt by an indi- procedures; vidual currently employed by another (12) A statement of other rights and Federal agency; remedies available to the employee (2) The National Endowment for the under statutes or regulations gov- Humanities is owed a debt by an indi- erning the program for which the col- vidual who is a current employee of the lection is being made; and National Endowment for the Human- (13) Unless there are contractual or ities; or statutory provisions to the contrary, a (3) The National Endowment for the statement that amounts paid on or de- Humanities employs an individual who ducted for the debt which are later owes a debt to another Federal agency. waived or found not owed to the United States will be prompty refunded to the § 1179.4 Notice requirements. employee. (a) Deductions shall not be made unless the employee is provided with § 1179.5 Hearing. written notice signed by the Chair- (a) Request for hearing. (1) An em- person of the debt at least 30 days be- ployee must file a petition for a hear- fore salary offset commences. ing in accordance with the instructions (b) The written notice shall contain: outlined in the agency’s notice to off- (1) A statement that the debt is owed set. (2) A hearing may be requested by and an explanation of its nature, and filing a written petition addressed to amount; the Chairperson of the National En- (2) The agency’s intention to collect dowment for the Humanities stating the debt by deducting from the employ- why the employee disputes the exist- ee’s current disposable pay account; ence or amount of the debt. The peti- (3) The amount, frequency proposed tion for a hearing must be received by beginning date, and duration of the in- the Chairperson no later than fifteen tended deduction(s); (15) calendar days after the date of the

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notice to offset unless the employee ment must be sent to the paying agen- can show good cause for failing to meet cy; the deadline date. (v) If the employee is in the process (b) Hearing procedures. (1) The hear- of separating, the Endowment must ing will be presided over by an impar- submit its debt claim to the paying tial hearing official. (2) The hearing agency as provided in this part. The shall conform to procedures contained paying agency must certify any in the Federal Claims Collection amounts already collected, notify the Standards 4 CFR 102.3(c). The burden employee, and send a copy of the cer- shall be on the employee to dem- tification and notice of the employee’s onstrate that the existence or the separation to the creditor agency. If amount of the debt is in error. the paying agency is aware that the § 1179.6 Written decision. employee is entitled to Civil Service Retirement and Disability Fund or (a) The hearing official shall issue a similar payments, it must certify to written opinion no later than 60 days the agency responsible for making such after the hearing. payments the amount of the debt and (b) The written opinion will include: that the provisions of this part have a statement of the facts presented to been followed; and demonstrate the nature and origin of (vi) If the employee has already sepa- the alleged debt; the hearing official’s rated and all payments due from the analysis, findings and conclusions; the paying agency have been paid, the amount and validity of the debt, and the repayment schedule. Chairperson may request unless otherwise prohibited, that money payable to § 1179.7 Coordinating offset with an- the employee from the Civil Service other Federal agency. Retirement and Disability Fund or (a) The Endowment as the creditor other similar funds be collected by ad- agency. (1) When the Chairperson deter- ministrative offset. mines that an employee of a Federal (b) The Endowment as the paying agen- agency owes a delinquent debt to the cy. (1) Upon receipt of a properly cer- National Endowment for the Human- tified debt claim from another agency, ities, the Chairperson shall as appro- deductions will be scheduled to begin priate: at the next established pay interval. (i) Arrange for a hearing upon the The employee must receive written no- proper petitioning by the employee; tice that the National Endowment for (ii) Certify in writing that the em- the Humanities has received a certified ployee owes the debt, the amount and debt claim from the creditor agency, basis of the debt, the date on which the amount of the debt, the date salary payment is due, the date the Govern- offset will begin, and the amount of the ment’s right to collect the debt ac- deduction(s). The National Endowment crued, and that Endowment regula- for the Humanities shall not review the tions for salary offset have been ap- merits of the creditor agency’s deter- proved by the Office of Personnel Man- mination of the validity or the amount agement; of the certified claim. (iii) If collection must be made in in- (2) If the employee transfers to an- stallments, the Chairperson must ad- other agency after the creditor agency vise the paying agency of the amount has submitted its debt claim to the Na- or percentage of disposable pay to be tional Endowment for the Humanities collected in each installment; and before the debt is collected com- (iv) Advise the paying agency of the pletely, the National Endowment for actions taken under 5 U.S.C. 5514(b) the Humanities must certify the total and provide the dates on which action amount collected. One copy of the cer- was taken unless the employee has tification must be furnished to the em- consented to salary offset in writing or ployee. A copy must be furnished the signed a statement acknowledging receipt of procedures required by law. creditor agency with notice of the em- The written consent or acknowledg- ployee’s transfer.

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§ 1179.8 Procedures for salary offset. (b) The creditor agency will promptly (a) Deductions to liquidate an em- return any amounts deducted by NEH ployee’s debt will be by the method and to satisfy debts owed to the creditor in the amount stated in the Chair- agency when the debt is waived, found person’s notice of intention to offset as not owed, or when directed by an ad- provided in § 1179.4. Debts will be col- ministrative or judicial order. lected in one lump sum where possible. (c) Unless required by law, refunds If the employee is financially unable to under this section shall not bear inter- pay in one lump sum, collection must est. be made in installments. (b) Debts will be collected by deduc- § 1179.10 Statute of limitations. tion at officially established pay inter- If a debt has been outstanding for vals from an employee’s current pay more than 10 years after the agency’s account unless alternative arrange- right to collect the debt first accrued, ments for repayment are made. the agency may not collect by salary (c) Installment deductions will be offset unless facts material to the Gov- made over a period not greater than ernment’s right to collect were not the anticipated period of employment. known and could not reasonably have The size of installment deductions been known by the official or officials must bear a reasonable relationship to who were charged with the responsi- the size of the debt and the employee’s bility for discovery and collection of ability to pay. The deduction for the such debts. pay intervals for any period must not exceed 15% of disposable pay unless the § 1179.11 Non-waiver of rights. employee has agreed in writing to a deduction of a greater amount. An employee’s involuntary payment (d) Unliquidated debts may be offset of all or any part of a debt collected against any financial payment due to a under these regulations will not be separated employee including but not construed as a waiver of any rights limited to final salary payment or that employee may have under 5 U.S.C. leave in accordance with 31 U.S.C. 3716. 5514 or any other provision of contract law unless there are statutes or con- § 1179.9 Refunds. tract(s) to the contrary. (a) The National Endowment for the Humanities will refund promptly any § 1179.12 Interest, penalties, and ad- amounts deducted to satisfy debts ministrative costs. owed to the NEH when the debt is Charges may be assessed for interest, waived, found not owed to the NEH, or penalties, and administrative costs in when directed by an administrative or accordance with the Federal Claims judicial order. Collection Standards, 4 CFR 102.13.

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PART 1180 [RESERVED] Assistant Attorney General means the Assistant Attorney General, Civil PART 1181—ENFORCEMENT OF Rights Division, United States Depart- ment of Justice. NONDISCRIMINATION ON THE Auxiliary aids means services or de- BASIS OF HANDICAP IN PRO- vices that enable persons with im- GRAMS OR ACTIVITIES CON- paired sensory, manual, or speaking DUCTED BY THE INSTITUTE OF MU- skills to have an equal opportunity to SEUM AND LIBRARY SERVICES participate in, and enjoy the benefits of, programs or activities conducted by Sec. the agency. For example, auxiliary aids 1181.101 Purpose. useful for persons with impaired vision 1181.102 Application. include readers, Brailled materials, 1181.103 Definitions. audio recordings, telecommunications 1181.104–1181.109 [Reserved] devices and other similar services and 1181.110 Self-evaluation. devices. Auxiliary aids useful for per- 1181.111 Notice. sons with impaired hearing include 1181.112–1181.129 [Reserved] 1181.130 General prohibitions against dis- telephone handset amplifiers, tele- crimination. phones compatible with hearing aids, 1181.131–1181.139 [Reserved] telecommunication devices for deaf 1181.140 Employment. persons (TDD’s), interpreters, 1181.141–1181.148 [Reserved] notetakers, written materials, and 1181.149 Program accessibility: Discrimina- other similar services and devices. tion prohibited. Complete complaint means a written 1181.150 Program accessibility: Existing fa- statement that contains the complain- cilities. ant’s name and address and describes 1181.151 Program accessibility: New construction and alterations. the agency’s alleged discriminatory ac- 1181.152–1175.159 [Reserved] tion in sufficient detail to inform the 1181.160 Communications. agency of the nature and date of the al- 1181.161–1181.169 [Reserved] leged violation of section 504. It shall 1181.170 Compliance procedures. be signed by the complainant or by 1181.171–1181.999 [Reserved] someone authorized to do so on his or AUTHORITY: 29 U.S.C. 794. her behalf. Complaints filed on behalf of classes or third parties shall describe SOURCE: 51 FR 4578, 4579, Feb. 5, 1986, unless otherwise noted. or identify (by name, if possible) the alleged victims of discrimination. § 1181.101 Purpose. Facility means all or any portion of buildings, structures, equipment, This part effectuates section 119 of roads, walks, parking lots, rolling the Rehabilitation, Comprehensive stock or other conveyances, or other Services, and Developmental Disabil- real or personal property. ities Amendments of 1978, which Handicapped person means any person amended section 504 of the Rehabilita- who has a physical or mental impair- tion Act of 1973 to prohibit discrimina- ment that substantially limits one or tion on the basis of handicap in pro- more major life activities, has a record grams or activities conducted by Exec- of such an impairment, or is regarded utive agencies or the United States as having such an impairment. Postal Service. As used in this definition, the phrase: (1) Physical or mental impairment in- § 1181.102 Application. cludes— This part applies to all programs or (i) Any physiological disorder or con- activities conducted by the agency. dition, cosmetic disfigurement, or anatomical loss affecting one of more of § 1181.103 Definitions. the following body systems: Neuro- For purposes of this part, the term— logical; musculoskeletal; special sense

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organs; respiratory, including speech who meets the essential eligibility re- organs; cardiovascular; reproductive; quirements for participation in, or re- digestive; genitourinary; hemic and ceipt of benefits from, that program or lymphatic; skin; and endocrine; or activity. (ii) Any mental or psychological dis- (3) Qualified handicapped person is de- order, such as mental retardation, or- fined for purposes of employment in 29 ganic brain syndrome, emotional or CFR 1613.702(f), which is made applica- mental illness, and specific learning ble to this part by § 1181.140. disabilities. The term physical or mental Section 504 means section 504 of the impairment includes, but is not limited Rehabilitation Act of 1973 (Pub. L. 93– to, such diseases and conditions as or- 112, 87 Stat. 394 (29 U.S.C. 794)), as thopedic, visual, speech, and hearing amended by the Rehabilitation Act impairments, cerebral palsy, epilepsy, Amendments of 1974 (Pub. L. 93–516, 88 muscular dystrophy, multiple sclerosis, Stat. 1617), and the Rehabilitation, cancer, heart disease, diabetes, mental Comprehensive Services, and Develop- retardation, emotional illness, and mental Disabilities Amendments of drug addition and alcholism. 1978 (Pub. L. 95–602, 92 Stat. 2955). As (2) Major life activities includes func- used in this part, section 504 applies tions such as caring for one’s self, per- only to programs or activities con- forming manual tasks, walking, seeing, ducted by Executive agencies and not hearing, speaking, breathing, learning, to federally assisted programs. and working. [51 FR 4578, 4579, Feb. 5, 1986; 51 FR 7543, Mar. (3) Has a record of such an impairment 5, 1986] means has a history of, or has been misclassified as having, a mental or §§ 1181.104–1181.109 [Reserved] physical impairment that substantially limits one or more major life activi- § 1181.110 Self-evaluation. ties. (a) The agency shall, by April 9, 1987, (4) Is regarded as having an impairment evaluate its current policies and prac- means— tices, and the effects thereof, that do (i) Has a physical or mental impair- not or may not meet the requirements ment that does not substantially limit of this part, and, to the extent modi- major life activities but is treated by fication of any such policies and prac- the agency as constituting such a limi- tices is required, the agency shall pro- tation; ceed to make the necessary modifica- (ii) Has a physical or mental impair- tions. ment that substantially limits major (b) The agency shall provide an op- life activities only as a result of the at- portunity to interested persons, includ- titudes of others toward such impairing handicapped persons or organiza- ment; or tions representing handicapped per- (iii) Has none of the impairments de- sons, to participate in the self-evalua- fined in paragraph (1) of this definition tion process by submitting comments but is treated by the agency as having (both oral and written). such an impairment. (c) The agency shall, until three Qualified handicapped person means— years following the completion of the (1) With respect to any agency pro- self-evaluation, maintain on file and gram or activity under which a person make available for public inspections: is required to perform services or to (1) A description of areas examined achieve a level of accomplishment, a and any problems identified, and handicapped person who meets the es- (2) A description of any modifications sential eligibility requirements and made. who can achieve the purpose of the program or activity without modifications § 1181.111 Notice. in the program or activity that the The agency shall make available to agency can demonstrate would result employees, applicants, participants, in a fundamental alteration in its na- beneficiaries, and other interested per- ture; or sons such information regarding the (2) With respect to any other pro- provisions of this part and its applica- gram or activity, a handicapped person bility to the programs or activities

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conducted by the agency, and make tunity to participate in programs or such information available to them in activities that are not separate or dif- such manner as the head of the agency ferent, despite the existence of permis- finds necessary to apprise such persons sibly separate or different programs or of the protections against discrimina- activities. tion assured them by section 504 and (3) The agency may not, directly or this regulation. through contractual or other arrangements, utilize criteria or methods of §§ 1181.112–1181.129 [Reserved] administration the purpose or effect of which would— § 1181.130 General prohibitions (i) Subject qualified handicapped per- against discrimination. sons to discrimination on the basis of (a) No qualified handicapped person handicap; or shall, on the basis of handicap, be ex- (ii) Defeat or substantially impair ac- cluded from participation in, be denied complishment of the objectives of a the benefits of, or otherwise be sub- program or activity with respect to jected to discrimination under any pro- handicapped persons. gram or activity conducted by the (4) The agency may not, in deter- agency. mining the site or location of a facil- (b)(1) The agency, in providing any ity, make selections the purpose or ef- aid, benefit, or service, may not, di- fect of which would— rectly or through contractual, licens- (i) Exclude handicapped persons ing, or other arrangements, on the from, deny them the benefits of, or oth- basis of handicap— erwise subject them to discrimination (i) Deny a qualified handicapped per- under any program or activity con- son the opportunity to participate in ducted by the agency; or or benefit from the aid, benefit, or (ii) Defeat or substantially impair service; the accomplishment of the objectives (ii) Afford a qualfied handicapped of a program or activity with respect person an opportunity to participate in to handicapped persons. or benefit from the aid, benefit, or (5) The agency, in the selection of service that is not equal to that af- procurement contractors, may not use forded others; criteria that subject qualified handi- (iii) Provide a qualified handicapped capped persons to discrimination on person with an aid, benefit, or service the basis of handicap. that is not as effective in affording (c) The exclusion of nonhandicapped equal opportunity to obtain the same persons from the benefits of a program result, to gain the same benefit, or to limited by Federal statute or Execu- reach the same level of achievement as tive order to handicapped persons or that provided to others; the exclusion of a specific class of (iv) Provide different or separate aid, handicapped persons from a program benefits, or services to handicapped limited by Federal statute or Execu- persons or to any class of handicapped tive order to a different class of handi- persons than is provided to others un- capped persons is not prohibited by less such action is necessary to provide this part. qualified handicapped persons with aid, (d) The agency shall administer pro- benefits, or services that are as effec- grams and activities in the most inte- tive as those provided to others; grated setting appropriate to the needs (v) Deny a qualified handicapped per- of qualified handicapped persons. son the opportunity to participate as a member of planning or advisory boards; §§ 1181.131–1181.139 [Reserved] or (vi) Otherwise limit a qualified § 1181.140 Employment. handicapped person in the enjoyment No qualified handicapped person of any right, privilege, advantage, or shall, on the basis of handicap, be sub- opportunity enjoyed by others receiv- jected to discrimination in employing the aid, benefit, or service. ment under any program or activity (2) The agency may not deny a quali- conducted by the agency. The defini- fied handicapped person the oppor- tions, requirements, and procedures of

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section 501 of the Rehabilitation Act of in such an alteration or such burdens 1973 (29 U.S.C. 791), as established by but would nevertheless ensure that the Equal Employment Opportunity handicapped persons receive the bene- Commission in 29 CFR part 1613, shall fits and services of the program or ac- apply to employment in federally con- tivity. ducted programs or activities. (b) Methods. The agency may comply with the requirements of this section §§ 1181.141–1181.148 [Reserved] through such means as redesign of § 1181.149 Program accessibility: Dis- equipment, reassignment of services to crimination prohibited. accessible buildings, assignment of aides to beneficiaries, home visits, de- Except as otherwise provided in livery of services at alternate acces- § 1181.150, no qualified handicapped person shall, because the agency’s facili- sible sites, alteration of existing facilities are inaccessible to or unusable by ties and construction of new facilities, handicapped persons, be denied the use of accessible rolling stock, or any benefits of, be excluded from participa- other methods that result in making tion in, or otherwise be subjected to its programs or activities readily ac- discrimination under any program or cessible to and usable by handicapped activity conducted by the agency. persons. The agency is nor required to make structural changes in existing fa- § 1181.150 Program accessibility: Exist- cilities where other methods are effec- ing facilities. tive in achieving compliance with this (a) General. The agency shall operate section. The agency, in making alter- each program or activity so that the ations to existing buildings, shall meet program or activity, when viewed in its accessibility requirements to the ex- entirety, is readily accessible to and tent compelled by the Architectural usable by handicapped persons. This Barriers Act of 1968, as amended (42 paragraph does not— U.S.C. 4151–4157), and any regulations (1) Necessarily require the agency to implementing it. In choosing among make each of its existing facilities ac- available methods for meeting the re- cessible to and usable by handicapped quirements of this section, the agency persons; or shall give priority to those methods (2) Require the agency to take any that offer programs and activities to action that it can demonstrate would qualified handicapped persons in the result in a fundamental alteration in most integrated setting appropriate. the nature of a program or activity or (c) Time period for compliance. The in undue financial and administrative agency shall comply with the obliga- burdens. In those circumstances where tions established under this section by agency personnel believe that the pro- June 6, 1986, except that where struc- posed action would fundamentally tural changes in facilities are under- alter the program or activity or would taken, such changes shall be made by result in undue financial and adminis- April 7, 1989, but in any event as expe- trative burdens, the agency has the ditiously as possible. burden of proving that compliance with § 1181.150(a) would result in such alter- (d) Transition plan. In the event that ation or burdens. The decision that structural changes to facilities will be compliance would result in such alter- undertaken to achieve program acces- ation or burdens must be made by the sibility, the agency shall develop, by agency head or his or her designee October 7, 1986, a transition plan set- after considering all agency resources ting forth the steps necessary to com- available for use in the funding and op- plete such changes. The agency shall eration of the conducted program or provide an opportunity to interested activity, and must be accompanied by persons, including handicapped persons a written statement of the reasons for or organizations representing handi- reaching that conclusion. If an action capped persons, to participate in the would result in such an alteration or development of the transition plan by such burdens, the agency shall take submitting comments (both oral and any other action that would not result written). A copy of the transition plan

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shall be made available for public in- (2) Where the agency communicates spection. The plan shall, at a min- with applicants and beneficiaries by imum— telephone, telecommunication devices (1) Identify physical obstacles in the for deaf persons (TDD’s) or equally ef- agency’s facilities that limit the acces- fective telecommunication systems sibility of its programs or activities to shall be used. handicapped persons; (b) The agency shall ensure that in- (2) Describe in detail the methods terested persons, including persons that will be used to make the facilities with impaired vision or hearing, can accessible; obtain information as to the existence (3) Specify the schedule for taking and location of accessible services, ac- the steps necessary to achieve compli- tivities, and facilities. ance with this section and, if the time (c) The agency shall provide signage period of the transition plan is longer at a primary entrance to each of its in- than one year, identify steps that will accessible facilities, directing users to be taken during each year of the tran- a location at which they can obtain in- sition period; and formation about accessible facilities. (4) Indicate the official responsible The international symbol for accessi- for implementation of the plan. bility shall be used at each primary entrance of an accessible facility. [51 FR 4578, 4579, Feb. 5, 1986; 51 FR 7543, Mar. (d) This section does not require the 5, 1986] agency to take any action that it can demonstrate would result in a funda- § 1181.151 Program accessibility: New construction and alterations. mental alteration in the nature of a program or activity or in undue finan- Each building or part of a building cial and administrative burdens. In that is constructed or altered by, on those circumstances where agency per- behalf of, or for the use of the agency sonnel believe that the proposed action shall be designed, constructed, or al- would fundamentally alter the program tered so as to be readily accessible to or activity or would result in undue fi- and usable by handicapped persons. nancial and administrative burdens, The definitions, requirements, and the agency has the burden of proving standards of the Architectural Barriers that compliance with § 1181.160 would Act (42 U.S.C. 4151–4157), as established result in such alteration or burdens. in 41 CFR 101–19.600 to 101–19.607, apply The decision that compliance would re- to buildings covered by this section. sult in such alteration or burdens must be made by the agency head or his or §§ 1181.152–1181.159 [Reserved] her designee after considering all agen- § 1181.160 Communications. cy resources available for use in the funding and operation of the conducted (a) The agency shall take appropriate program or activity, and must be ac- steps to ensure effective communica- companied by a written statement of tion with applicants, participants, per- the reasons for reaching that conclu- sonnel of other Federal entities, and sion. If an action required to comply members of the public. with this section would result in such (1) The agency shall furnish appro- an alteration or such burdens, the priate auxiliary aids where necessary agency shall take any other action to afford a handicapped person an equal that would not result in such an alter- opportunity to participate in, and ation or such burdens but would never- enjoy the benefits of, a program or ac- theless ensure that, to the maximum tivity conducted by the agency. extent possible, handicapped persons (i) In determining what type of auxil- receive the benefits and services of the iary aid is necessary, the agency shall program or activity. give primary consideration to the requests of the handicapped person. §§ 1181.161–1181.169 [Reserved] (ii) The agency need not provide individually prescribed devices, readers for § 1181.170 Compliance procedures. personal use or study, or other devices (a) Except as provided in paragraph of a personal nature. (b) of this section, this section applies

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to all allegations of discrimination on (i) Timely appeals shall be accepted the basis of handicap in programs or and processed by the head of the agen- activities conducted by the agency. cy. (b) The agency shall process com- (j) The head of the agency shall no- plaints alleging violations of section tify the complainant of the results of 504 with respect to employment accord- the appeal within 60 days of the receipt ing to the procedures established by of the request. If the head of the agen- the Equal Employment Opportunity cy determines that additional informa- Commission in 29 CFR part 1613 pursu- tion is needed from the complainant, ant to section 501 of the Rehabilitation he or she shall have 60 days from the Act of 1973 (29 U.S.C. 791). date of receipt of the additional infor- (c) The Director shall be responsible mation to make his or her determina- for coordinating implementation of tion on the appeal. this section. Complaints may be sent (k) The time limits cited in para- to Director, Institute of Museum and graphs (g) and (j) of this section may be Library Services, 1100 Pennsylvania extended with the permission of the Ave., NW., room 510, Washington, DC Assistant Attorney General. 20506. (l) The agency may delegate its au- (d) The agency shall accept and in- thority for conducting complaint investigate all complete complaints for vestigations to other Federal agencies, which it has jurisdiction. All complete except that the authority for making complaints must be filed within 180 the final determination may not be days of the alleged act of discrimina- delegated to another agency. tion. The agency may extend this time [51 FR 4578, 4579, Feb. 5, 1986, as amended at period for good cause. 51 FR 4578, Feb. 5, 1986] (e) If the agency receives a complaint over which it does not have jurisdic- §§ 1181.171–1181.999 [Reserved] tion, it shall promptly notify the complainant and shall make reasonable ef- PART 1182—IMPLEMENTATION OF forts to refer the complaint to the ap- THE PRIVACY ACT OF 1974 propriate government entity. (f) The agency shall notify the Archi- Sec. tectural and Transportation Barriers 1182.1 Purpose and scope of these regula- Compliance Board upon receipt of any tions. 1182.2 Definitions. complaint alleging that a building or 1182.3 Inquiries about the Institute’s sys- facility that is subject to the Architec- tems of records or implementation of the tural Barriers Act of 1968, as amended Privacy Act. (42 U.S.C. 4151–4157), or section 502 of 1182.4 Procedures for notifying the public of the Rehabilitation Act of 1973, as the Institute’s systems of records. amended (29 U.S.C. 792), is not readily 1182.5 Procedures for notifying government accessible to and usable by handi- entities of the Institute’s proposed capped persons. changes to its systems of records. 1182.6 Limits that exist as to the contents (g) Within 180 days of the receipt of a of the Institute’s systems of records. complete complaint for which it has ju- 1182.7 Institute procedures for collecting in- risdiction, the agency shall notify the formation from individuals for its complainant of the results of the inves- records. tigation in a letter containing— 1182.8 Procedures for acquiring access to In- (1) Findings of fact and conclusions stitute records pertaining to an individual. of law; 1182.9 Identification required when request- (2) A description of a remedy for each ing access to Institute records pertaining violation found; to an individual. (3) A notice of the right to appeal. 1182.10 Procedures for amending or cor- (h) Appeals of the findings of fact and recting an individual’s Institute record. conclusions of law or remedies must be 1182.11 Procedures for appealing a refusal to amend or correct an Institute record. filed by the complainant within 90 days 1182.12 Fees charged to locate, review, or of receipt from the agency of the letter copy records. required by § 1181.170(g). The agency 1182.13 Policies and procedures for Institute may extend this time for good cause. disclosure of its records.

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1182.14 Procedures for maintaining accounts (d) General Counsel means the Gen- of disclosures made by the Institute from eral Counsel of the Institute, or his or its systems of records. her designee. 1182.15 Institute responsibility for maintaining adequate technical, physical, and (e) Individual means any citizen of security safeguards to prevent unauthor- the United States or an alien lawfully ized disclosure or destruction of manual admitted for permanent residence; and automatic record systems. (f) Institute means the Institute of 1182.16 Procedures to ensure that Institute Museum and Library Services; employees involved with its systems of (g) Institute system means a system of records are familiar with the require- records maintained by the Institute; ments and of the Privacy Act. 1182.17 Institute systems of records that are (h) Maintain means to collect, use, covered by exemptions in the Privacy store, or disseminate records, as well Act. as any combination of these record- 1182.18 Penalties for obtaining an Institute keeping functions. The term also in- record under false pretenses. cludes exercise of control over and, 1182.19 Restrictions that exist regarding the therefore, responsibility and account- release of mailing lists. ability for, systems of records; AUTHORITY: 5 U.S.C. 552a(f). (i) Privacy Act or Act means the Pri- SOURCE: 71 FR 6375, Feb. 8, 2006, unless oth- vacy Act of 1974, as amended (5 U.S.C. erwise noted. 552a); (j) Record means any item, collection, § 1182.1 Purpose and scope of these or grouping of information about an in- regulations. dividual that is maintained by an agen- The regulations in this part set forth cy and contains the individual’s name the Institute’s procedures under the or another identifying particular, such Privacy Act, as required by 5 U.S.C. as a number or symbol assigned to the 552a(f), with respect to systems of individual, or his or her fingerprint, records maintained by the Institute. voice print, or photograph. The term These regulations establish procedures includes, but is not limited to, infor- by which an individual may exercise mation regarding an individual’s edu- the rights granted by the Privacy Act cation, financial transactions, medical to determine whether an Institute sys- history, and criminal or employment tem contains a record pertaining to history; him or her; to gain access to such (k) Routine use means, with respect records; and to request correction or to the disclosure of a record, the use of amendment of such records. These reg- a record for a purpose that is compat- ulations also set identification require- ible with the purpose for which it was ments, prescribe fees to be charged for collected; copying records, and establish exemp- (l) Subject individual means the indi- tions from certain requirements of the vidual to whom a record pertains. Uses Act for certain Institute systems or of the terms ‘‘I’’, ‘‘you’’, ‘‘me’’, and components thereof: other references to the reader of the regulations in this part are meant to § 1182.2 Definitions. apply to subject individuals as defined The definitions of the Privacy Act in this paragraph (l); and apply to this part. In addition, as used (m) System of records means a group of in this part: records under the control of any agen- (a) Agency means any executive de- cy from which information is retrieved partment, military department, gov- by use of the name of the individual or ernment corporation, or other estab- by some number, symbol, or other lishment in the executive branch of the identifying particular assigned to the Federal government, including the Ex- individual. ecutive Office of the President or any independent regulatory agency. § 1182.3 Inquiries about the Institute’s (b) Business day means a calendar systems of records or implementa- day, excluding Saturdays, Sundays, tion of the Privacy Act. and legal public holidays. Inquiries about the Institute’s sys- (c) Director means the Director of the tems of records or implementation of Institute, or his or her designee; the Privacy Act should be sent to the

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following address: Institute of Museum § 1182.5 Procedures for notifying gov- and Library Services; Office of the Gen- ernment entities of the Institute’s eral Counsel; 1800 M Street, NW., 9th proposed changes to its systems of Floor, Washington, DC 20036. records. When the Institute proposes to estab- § 1182.4 Procedures for notifying the lish or significantly change any of its public of the Institute’s systems of systems of records, it shall provide ade- records. quate advance notice of such proposal (a) From time to time, the Institute to the Committee on Government Re- shall review its systems of records in form of the House of Representatives, the FEDERAL REGISTER, and publish, if the Committee on Governmental Af- necessary, any amendments to those fairs of the Senate, and the Office of systems of records. Such publication Management and Budget (OMB), in shall not be made for those systems of order to permit an evaluation of the records maintained by other agencies probable or potential effect of such while in the temporary custody of the proposal on the privacy or other rights Institute. of individuals. This report will be sub- (b) At least 30 days prior to publica- mitted in accordance with guidelines tion of information under paragraph (a) provided by the OMB. of this section, the Institute shall publish in the FEDERAL REGISTER a notice § 1182.6 Limits that exist as to the con- of its intention to establish any new tents of the Institute’s systems of routine uses of any of its systems of records. records, thereby providing the public (a) The Institute shall maintain only an opportunity to comment on such such information about an individual uses. This notice published by the In- as is relevant and necessary to accom- stitute shall contain the following: plish a purpose of the agency required (1) The name of the system of records by statute or by executive order of the for which the routine use is to be es- President. In addition, the Institute tablished; shall maintain all records that are used (2) The authority for the system; in making determinations about any (3) The purpose for which the record individual with such accuracy, rel- is to be maintained; evance, timeliness, and completeness (4) The proposed routine use(s); as is reasonably necessary to ensure (5) The purpose of the routine use(s); fairness to that individual in the mak- and ing of any determination about him or (6) The categories of recipients of her. However, the Institute shall not be such use. required to update retired records. (c) Any request for additions to the (b) The Institute shall not maintain routine uses of Institute systems any record about any individual with should be sent to the Office of the Gen- respect to or describing how such indi- eral Counsel (see § 1182.3). vidual exercises rights guaranteed by (d) Any individual who wishes to the First Amendment of the Constitu- know whether an Institute system con- tion of the United States, unless ex- tains a record pertaining to him or her pressly authorized by statute or by the should write to the Office of the Gen- subject individual, or unless pertinent eral Counsel (see § 1182.3). Such individ- to and within the scope of an author- uals may also call the Office of the ized law enforcement activity. General Counsel at (202) 653–4787 on business days, between the hours of 9 § 1182.7 Institute procedures for col- a.m. and 5 p.m., to schedule an appoint- lecting information from individ- ment to make an inquiry in person. In- uals for its records. quiries should be presented in writing The Institute shall collect informa- and should specifically identify the In- tion, to the greatest extent prac- stitute systems involved. The Institute ticable, directly from you when the in- will attempt to respond to an inquiry formation may result in adverse deter- regarding whether a record exists with- minations about your rights, benefits, in 10 business days of receiving the in- or privileges under Federal programs. quiry. In addition, the Institute shall inform

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you of the following, either on the form able, and the information requested it uses to collect the information or on will be provided promptly thereafter. a separate form that you can retain, (d) If you make your request in per- when it asks you to supply informa- son at a scheduled appointment, you tion: may, upon your request, be accom- (a) The statutory or executive order panied by a person of your choice to re- authority that authorizes the solicita- view your record. The Institute may tion of the information; require that you furnish a written (b) Whether disclosure of such infor- statement authorizing discussion of mation is mandatory or voluntary; your record in the accompanying per- (c) The principal purpose(s) for which son’s presence. A record may be dis- the information is intended to be used; closed to a representative chosen by (d) The routine uses that may be you upon your proper written consent. made of the information, as published (e) Medical or psychological records pursuant to § 1182.4; and pertaining to you shall be disclosed to (e) Any effects on you of not providing all or any part of the required or you unless, in the judgment of the In- requested information. stitute, access to such records might have an adverse effect upon you. When § 1182.8 Procedures for acquiring ac- such a determination has been made, cess to Institute records pertaining the Institute may refuse to disclose to an individual. such information directly to you. The The following procedures apply to Institute will, however, disclose this records that are contained in an Insti- information to a licensed physician tute system: designated by you in writing. (a) You may request review of records pertaining to you by writing to § 1182.9 Identification required when the Office of the General Counsel (see requesting access to Institute § 1182.3). You also may call the Office of records pertaining to an individual. the General Counsel at (202) 653–4787 on The Institute shall require reason- business days, between the hours of 9 able identification of all individuals a.m. and 5 p.m., to schedule an appoint- who request access to records in an In- ment to make such a request in person. stitute system to ensure that they are A request for records should be pre- disclosed to the proper person. sented in writing and should identify (a) The amount of personal identi- specifically the Institute systems in- fication required will of necessity vary volved. with the sensitivity of the record in- (b) Access to the record, or to any volved. In general, if you request dis- other information pertaining to you closure in person, you shall be required that is contained in the system shall be to show an identification card, such as provided if the identification require- a driver’s license, containing your pho- ments of § 1182.9 are satisfied and the tograph and sample signature. How- record is determined otherwise to be ever, with regard to records in Insti- releasable under the Privacy Act and tute systems that contain particularly these regulations. The Institute shall provide you an opportunity to have a sensitive and/or detailed personal in- copy made of any such record about formation, the Institute reserves the you. Only one copy of each requested right to require additional means of record will be supplied, based on the fee identification as are appropriate under schedule in § 1182.12. the circumstances. These means in- (c) The Institute will comply prompt- clude, but are not limited to, requiring ly with requests made in person at you to sign a statement under oath as scheduled appointments, if the require- to your identity, acknowledging that ments of this section are met and the you are aware of the penalties for im- records sought are immediately avail- proper disclosure under the provisions able. The institute will acknowledge, of the Privacy Act. within 10 business days, mailed re- (b) If you request disclosure by mail, quests or personal requests for docu- the Institute will request such infor- ments that are not immediately avail- mation as may be necessary to ensure

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that you are properly identified. Au- without regard to its accuracy, if the thorized means to achieve this goal in- record is not relevant or necessary to clude, but are not limited to, requiring accomplish the Institute function for that a mail request include certifi- which the record was provided or is cation that a duly commissioned no- maintained. In either case, you will be tary public of any State or territory informed in writing of the amendment, (or a similar official, if the request is correction, or deletion. In addition, if made outside of the United States) re- accounting was made of prior disclo- ceived an acknowledgment of identity sures of the record, all previous recipi- from you. ents of the record will be informed of (c) If you are unable to provide suit- the corrective action taken. able documentation or identification, (e) If after receiving and inves- the Institute may require a signed, no- tigating your request, the General tarized statement asserting your iden- Counsel does not agree that the record tity and stipulating that you under- should be amended or corrected, you stand that knowingly or willfully seek- will be informed promptly in writing of ing or obtaining access to records the refusal to amend or correct the about another person under false pre- record and the reason for this decision. tenses is punishable by a fine of up to You also will be informed that you $5,000. may appeal this refusal in accordance with § 1182.11. § 1182.10 Procedures for amending or (f) Requests to amend or correct a correcting an individual’s Institute record governed by the regulations of record. another agency will be forwarded to (a) You are entitled to request such agency for processing, and you amendments to or corrections of will be informed in writing of this re- records pertaining to you pursuant to ferral. the provisions of the Privacy Act, including 5 U.S.C. 552a(d)(2). Such a re- § 1182.11 Procedures for appealing a quest should be made in writing and refusal to amend or correct an In- addressed to the Office of the General stitute record. Counsel (see § 1182.3). (a) You may appeal a refusal to (b) Your request for amendments or amend or correct a record to the Direc- corrections should specify the fol- tor. Such appeal must be made in writ- lowing: ing within 10 business days of your re- (1) The particular record that you are ceipt of the initial refusal to amend or seeking to amend or correct; correct your record. Your appeal (2) The Institute system from which should be sent to the Office of the Gen- the record was retrieved; eral Counsel (see § 1182.3), should indi- (3) The precise correction or amend- cate that it is an appeal, and should in- ment you desire, preferably in the form clude the basis for the appeal. of an edited copy of the record reflect- (b) The Director will review your re- ing the desired modification; and quest to amend or correct the record, (4) Your reasons for requesting the General Counsel’s refusal, and any amendment or correction of the record. other pertinent material relating to (c) The Institute will acknowledge a the appeal. No hearing will be held. request for amendment or correction of (c) The Director shall render his or a record within 10 business days of its her decision on your appeal within 30 receipt, unless the request can be proc- business days of its receipt by the In- essed and the individual informed of stitute, unless the Director, for good the General Counsel’s decision on the cause shown, extends the 30-day period. request within that 10-day period. Should the Director extend the appeal (d) If after receiving and inves- period, you will be informed in writing tigating your request, the General of the extension and the circumstances Counsel agrees that the record is not of the delay. accurate, timely, or complete, based on (d) If the Director determines that a preponderance of the evidence, then the record that is the subject of the ap- the record will be corrected or amend- peal should be amended or corrected, ed promptly. The record will be deleted the record will be so modified, and you

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will be informed in writing of the (b) Copies of records made by photo- amendment or correction. Where an ac- copy or similar process will be charged counting was made of prior disclosures to you at the rate of $0.10 per page. of the record, all previous recipients of Where records are not susceptible to the record will be informed of the cor- photocopying (e.g., punch cards, mag- rective action taken. netic tapes, or oversize materials), you (e) If your appeal is denied, you will will be charged actual cost as deter- be informed in writing of the following: mined on a case-by-case basis. A copy- (1) The denial and the reasons for the ing fee totaling $3.00 or less shall be denial; waived, but the copying fees for con- (2) That you may submit to the Insti- temporaneous requests by the same in- tute a concise statement setting forth dividual shall be aggregated to deter- the reasons for your disagreement as to mine the total fee. the disputed record. Under the proce- (c) Special and additional services dures set forth in paragraph (f) of this provided at your request, such as cer- section, your statement will be dis- tification or authentication, postal in- closed whenever the disputed record is surance, and special mailing arrange- disclosed; and ment costs, will be charged to you. (d) A copying fee shall not be charged (3) That you may seek judicial review or, alternatively, it may be reduced, of the Director’s determination under 5 when the General Counsel determines, U.S.C. 552a(g)(1)(a). based on a petition, that the peti- (f) Whenever you submit a statement tioning individual is indigent and that of disagreement to the Institute in ac- the Institute’s resources permit a waiv- cordance with paragraph (e)(2) of this er of all or part of the fee. section, the record will be annotated to (e) All fees shall be paid before any indicate that it is disputed. In any sub- copying request is undertaken. Pay- sequent disclosure, a copy of your ments shall be made by check or statement of disagreement will be dis- money order payable to the ‘‘Institute closed with the record. If the Institute of Museum and Library Services.’’ deems it appropriate, a concise statement of the Director’s reasons for de- § 1182.13 Policies and procedures for nying our appeal also may be disclosed Institute disclosure of its records. with the record. While you will have (a) The Institute not disclose any access to this statement of the Direc- record that is contained in a system of tor’s reasons for denying your appeal, records to any person or to another such statement will not be subject to agency, except pursuant to a written correction or amendment. Where an ac- request by or with the prior written counting was made of prior disclosures consent of the subject individual, un- of the record, all previous recipients of less disclosure of the record is: the record will be provided a copy of (1) To those officers or employees of your statement of disagreement, as the Institute who maintain the record well as any statement of the Director’s and who have a need for the record in reasons for denying your appeal. the performance of their official duties; (2) Required under the provisions of § 1182.12 Fees charged to locate, re- the Freedom of Information Act (5 view, or copy records. U.S.C. 552). Records required to be (a) The Institute shall charge no fees made available by the Freedom of In- for search time or for any other time formation Act will be released in re- expended by the Institute to review a sponse to a request to the Institute for- record. However, the Institute may mulated in accordance with the Na- charge fees where you request that a tional Foundation on the Arts and the copy be made of a record to which you Humanities regulations published at 45 have been granted access. Where a copy CFR part 1100; of the record must be made in order to (3) For a routine use as published in provide access to the record (e.g., com- the annual notice in the FEDERAL REG- puter printout where no screen reading ISTER; is available), the copy will be made (4) To the Census Bureau for purpose available to you without cost. of planning or carrying out a census;

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survey, or related activity pursuant to (11) To a consumer reporting agency the provisions of Title 13 of the United in accordance with 31 U.S.C. 3711(e); or States Code; (12) Pursuant to an order of a court of (5) To a recipient who has provided competent jurisdiction. In the event the Institute with adequate advance that any record is disclosed under such written assurance that the record will compulsory legal process, the Institute be used solely as a statistical research shall make reasonable efforts to notify or reporting record, and the record is the subject individual after the process to be transferred in a form that is not becomes a matter of public record. individually identifiable; (b) Before disseminating any record (6) To the National Archives and about any individual to any person Records Administration as a record other than an Institute employee, the that has sufficient historical or other Institute shall make reasonable efforts value to warrant its continued preser- to ensure that such records are, or at vation by the United States govern- the time they were collected were, ac- ment, or for evaluation by the Archi- curate, complete, timely, and relevant vist of the United States, or his or her for Institute purposes. This paragraph designee, to determine whether the (b) does not apply to dissemination record has such value; made pursuant to the provisions of the (7) To another agency or to an instru- Freedom of Information Act (5 U.S.C. mentality of any governmental jurisdiction within or under the control of 552) and paragraph (a)(2) of this sec- the United States for a civil or crimi- tion. nal law enforcement activity, if the ac- § 1182.14 Procedures for maintaining tivity is authorized by law, and if the accounts of disclosures made by the head of the agency or instrumentality Institute from its systems of has made a written request to the In- records. stitute for such records specifying the particular portion desired and the law (a) The Office of the General Counsel enforcement activity for which the shall maintain a log containing the record is sought. The Institute also date, nature, and purpose of each dis- may disclose such a record to a law en- closure of a record to any person or to forcement agency on its own initiative another agency. Such accounting also in situations in which criminal conduct shall contain the name and address of is suspected, provided that such disclo- the person or agency to whom each dis- sure has been established as a routine closure was made. This log need not in- use, or in situations in which the mis- clude disclosures made to Institute em- conduct is directly related to the pur- ployees in the course of their official pose for which the record is main- duties, or pursuant to the provisions of tained; the Freedom of Information Act (5 (8) To a person pursuant to a showing U.S.C. 552). of compelling circumstances affecting (b) The Institute shall retain the ac- the health or safety of an individual if, counting of each disclosure for at least upon such disclosure, notification is five years after the accounting is made transmitted to the last known address or for the life of the record that was of such individual; disclosed, whichever is longer. (9) To either House of Congress, or, to (c) The Institute shall make the ac- the extent of matter within its juris- counting of disclosures of a record per- dictions, any committee or sub- taining to you available to you at your committee thereof, any joint committee of Congress, or subcommittee of request. Such a request should be made any such joint committee; in accordance with the procedures set forth in § 1182.8. This paragraph (c) does (10) To the Comptroller General, or any of his or her authorized representa- not apply to disclosures made for law tives, in the course of the performance enforcement purposes under 5 U.S.C. of official duties of the General Ac- 552a(b)(7) and § 1182.13(a)(7). counting Office;

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§ 1182.15 Institute responsibility for records in the performance of their of- maintaining adequate technical, ficial duties or routine uses as defined physical, and security safeguards to in § 1182.1, or such other uses as pro- prevent unauthorized disclosure or vided in this part, access to records destruction of manual and auto- within a system of records shall be per- matic record systems. mitted only to the individual to whom The Chief Information Officer has the the record pertains or upon his or her responsibility of maintaining adequate written request to the General Counsel. technical, physical, and security safe- (5) Access to areas where a system of guards to prevent unauthorized disclo- records is stored will be limited to sure or destruction of manual and those persons whose duties require automatic record systems. These secu- work in such areas. There shall be an rity safeguards shall apply to all sys- accounting of the removal of any tems in which identifiable personal records from such storage areas uti- data are processed or maintained, in- lizing a log, as directed by the Chief In- cluding all reports and outputs from formation Officer. The log shall be such systems that contain identifiable maintained at all times. personal information. Such safeguards (6) The Institute shall ensure that all must be sufficient to prevent negligent, persons whose duties require access to accidental, or unintentional disclosure, and use of records contained in a sys- modification or destruction of any per- tem of records are adequately trained sonal records or data, and must fur- to protect the security and privacy of thermore minimize, to the extent prac- such records. ticable, the risk that skilled techni- cians or knowledgeable persons could (7) The disposal and destruction of improperly obtain access to modify or records within a system of records destroy such records or data and shall shall be in accordance with rules pro- further insure against such casual mulgated by the General Services Ad- entry by unskilled persons without of- ministration. ficial reasons for access to such records (b) Automated systems. (1) Identifiable or data. personal information may be processed, (a) Manual systems. (1) Records con- stored, or maintained by automated tained in a system of records as defined data systems only where facilities or in this part may be used, held, or conditions are adequate to prevent un- stored only where facilities are ade- authorized access to such systems in quate to prevent unauthorized access any form. Whenever such data, whether by persons within or outside the Insti- contained in punch cards, magnetic tute. tapes, or discs, are not under the per- (2) All records, when not under the sonal control of an authorized person, personal control of the employees au- such information must be stored in a thorized to use the records, must be locked or secured room, or in such stored in a locked filing cabinet. Some other facility having greater safe- systems of records are not of such con- guards than those provided for in this fidential nature that their disclosure part. would constitute a harm to an indi- (2) Access to and use of identifiable vidual who is the subject of such personal data associated with auto- record. However, records in this cat- mated data systems shall be limited to egory also shall be maintained in those persons whose duties require locked filing cabinets or maintained in such access. Proper control of personal a secured room with a locking door. data in any form associated with auto- (3) Access to and use of a system of mated data systems shall be main- records shall be permitted only to per- tained at all times, including mainte- sons whose duties require such access nance of accountability records show- within the Institute, for routine uses ing disposition of input and output doc- as defined in § 1182.1 as to any given uments. system, or for such other uses as may (3) All persons whose duties require be provided in this part. access to processing and maintenance (4) Other than for access within the of identifiable personal data and auto- Institute to persons needing such mated systems shall be adequately

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trained in the security and privacy of law enforcement purposes, other than personal data. material within the scope of the ex- (4) The disposal and disposition of emption at 5 U.S.C. 552a(j)(2). identifiable personal data and auto- (c) The Institute system entitled mated systems shall be done by shred- ‘‘Office of the Inspector General Inves- ding, burning, or, in the case of tapes tigative Files’’ is exempt from the pro- or discs, degaussing, in accordance visions of the Privacy Act noted in this with regulations of the General Serv- section because their application ices Administration or other appro- might alert investigation subjects to priate authority. the existence or scope of investigations; lead to suppression, alteration, § 1182.16 Procedures to ensure that In- fabrication, or destruction of evidence; stitute employees involved with its systems of records are familiar with disclose investigative techniques or the requirements and of the Pri- procedures; reduce the cooperativeness vacy Act. or safety of witnesses; or otherwise im- (a) The Director shall ensure that all pair investigations. persons involved in the design, develop- § 1182.18 Penalties for obtaining an In- ment, operation, or maintenance of stitute record under false pre- any Institute system are informed of tenses. all requirements necessary to protect the privacy of subject individuals. The (a) Under 5 U.S.C. 552a(i)(3), any per- Director also shall ensure that all In- son who knowingly and willfully re- stitute employees having access to quests or obtains any record from the records receive adequate training in Institute concerning an individual their protection, and that records have under false pretenses shall be guilty of adequate and proper storage with suffi- a misdemeanor and fined not more cient security to assure the privacy of than $5,000. such records. (b) A person who falsely or fraudu- (b) All employees shall be informed lently attempts to obtain records of the civil remedies provided under 5 under the Privacy Act also may be sub- U.S.C. 552a(g)(1) and other implications ject to prosecution under other stat- of the Privacy Act, and the fact that utes, including 18 U.S.C. 494, 495, and the Institute may be subject to civil 1001. remedies for failure to comply with the provisions of the Privacy Act and the § 1182.19 Restrictions that exist regarding the release of mailing lists. regulations in this part. The Institute may not sell or rent an § 1182.17 Institute systems of records individual’s name and address unless that are covered by exemptions in such action specifically is authorized the Privacy Act. by law. This section shall not be con- (a) Pursuant to and limited by 5 strued to require the withholding of U.S.C. 552a(j)(2), the Institute system names and addresses otherwise per- entitled ‘‘Office of the Inspector Gen- mitted to be made public. eral Investigative Files’’ shall be exempted from the provisions of 5 U.S.C. PART 1183 [RESERVED] 552a, except for subsections (b); (c)(1) and (2); (e)(4)(A) through (F); (e)(6), (7), (9), (10), and (11); and (i), insofar as that PART 1184—IMPLEMENTATION OF Institute system contains information THE FREEDOM OF INFORMATION pertaining to criminal law enforcement ACT investigations. (b) Pursuant to and limited by 5 Sec. U.S.C. 552a(k)(2), the Institute system 1184.1 What is the purpose and scope of entitled ‘‘Office of the Inspector Gen- these regulations? 1184.2 What are IMLS’s general policies eral Investigative Files’’ shall be ex- with respect to FOIA? empted from 5 U.S.C. 552a(c)(3); (d); 1184.3 How do I request records? (e)(1); (e)(4)(G), (H), and (I); and (f), in- 1184.4 When will I receive a response to my sofar as that Institute system consists request? of investigatory material compiled for 1184.5 How will my request be processed?

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1184.6 How can I appeal a denial of my re- terest to the public. To save time and quest? money, IMLS strongly urges you to re- 1184.7 How will fees be charged? view documents available at the IMLS 1184.8 How can I address concerns regarding my request? FOIA Electronic Reading Room before 1184.9 What are IMLS’ policies regarding submitting a FOIA request. disclosure of confidential business infor- (c) Definitions. For purposes of this mation? part, all of the terms defined in the 1184.10 Disclaimer. Freedom of Information Act, and the AUTHORITY: 5 U.S.C. 552. OMB Guidelines apply, unless other- SOURCE: 79 FR 9423, Feb. 19, 2014, unless wise defined in this part. otherwise noted. (1) Commercial use request. A request by or on behalf of anyone who seeks in- § 1184.1 What is the purpose and scope formation for a use or purpose that fur- of these regulations? thers his or her commercial, trade, or (a) The regulations in this part de- profit interests, which can include fur- scribe how the Institute of Museum thering those interests through litiga- and Library Services (IMLS) processes tion. requests for records under the Freedom (2) Direct costs. Those expenses that of Information Act (FOIA), 5 U.S.C. 552 IMLS actually incurs in searching for as amended. The regulations in this and duplicating (and, in the case of part apply only to records that are both: commercial use requests, reviewing) (1) Created or obtained by IMLS; and records in order to respond to a FOIA (2) Under the agency’s control at the request. Direct costs include, for exam- time of the FOIA request. ple, the salary of the employee per- (b) The rules in this part should be forming the work (the basic rate of pay read in conjunction with the text of for the employee, plus 16.1 percent of the FOIA and the Uniform Freedom of that rate to cover benefits) and the Information Fee Act Schedule and cost of operating duplication machin- Guidelines published by the Office of ery. Not included in direct costs are Management and Budget at 52 FR 10012 overhead expenses such as the costs of (Mar. 27, 1987) (the ‘‘OMB Guidelines’’). space and heating or lighting of the fa- Requests made by individuals for cility in which the records are kept. records about themselves under the (3) Duplication. The making of a copy Privacy Act of 1974, 5 U.S.C. 552a, are of a record, or of the information con- processed under 45 CFR part 1182 as tained in it, necessary to respond to a well as under this part. FOIA request. Copies can take the form of paper, audiovisual materials, or § 1184.2 What are IMLS’s general policies with respect to FOIA? electronic records (for example, magnetic tape or disk), among others. (a) Non-exempt records available to the (4) Educational institution. Any school public. Except for records exempt or ex- that operates a program of scholarly cluded from disclosure by 5 U.S.C. 552 research. A requester in this category or published in the FEDERAL REGISTER must show that the request is author- under 5 U.S.C. 552(a)(1), IMLS records subject to the FOIA are available to ized by, and is made under the auspices any person who requests them in ac- of, a qualifying institution and that cordance with these regulations. the records are not sought for a com- (b) Records available at the IMLS FOIA mercial use, but rather are sought to Electronic Reading Room. IMLS makes further scholarly research. records available on its Web site in ac- (5) Fee waiver. The waiver or reduc- cordance with 5 U.S.C. 552(a)(2), as tion of processing fees if a requester amended, and other documents that, can demonstrate that certain statutory because of the nature of their subject standards are satisfied including that matter, are likely to be the subject of the information is in the public inter- FOIA requests. IMLS establishes cat- est and is not requested for a commer- egories of records that can be disclosed cial interest. regularly and proactively identifies (6) FOIA Public Liaison. An IMLS offi- and discloses additional records of in- cial who is responsible for assisting in

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reducing delays, increasing trans- (10) Review. The examination of a parency and understanding of the sta- record located in response to a request tus of FOIA requests, and assisting in in order to determine whether any por- the resolution of disputes. tion of it is exempt from disclosure. (7) Non-commercial scientific institu- Review time includes processing any tion. An institution that is not oper- record for disclosure, such as doing all ated on a ‘‘commercial’’ basis, as de- that is necessary to prepare the record fined in paragraph (c)(1) of this section, for disclosure, including the process of and that is operated solely for the pur- redacting the record and marking the pose of conducting scientific research appropriate exemptions. Review costs the results of which are not intended to are properly charged even if a record promote any particular product or in- ultimately is not disclosed. Review dustry. A requester in this category time also includes time spent both ob- must show that the request is author- taining and considering any formal ob- ized by and is made under the auspices jection to disclosure made by a con- of a qualifying institution and that the fidential business information sub- records are sought to further scientific mitter under § 1184.8 but it does not in- research and not for a commercial use. clude time spent resolving general legal or policy issues regarding the ap- (8) Representative of news media. Any plication of exemptions. person or entity organized and oper- (11) Search. The process of looking for ated to publish or broadcast news to and retrieving records or information the public that actively gathers infor- responsive to a FOIA request. Search mation of potential interest to a seg- time includes page-by-page or line-by- ment of the public, uses its editorial line identification of information with- skills to turn raw materials into a dis- in records; and the reasonable efforts tinct work, and distributes that work expended to locate and retrieve infor- to an audience. The term ‘‘news’’ mation from electronic records. means information that is about cur- (12) Working day. A regular Federal rent events or that would be of current working day. It does not include Satur- interest to the public. Examples of days, Sundays, or legal Federal holi- news media entities include television days. or radio stations that broadcast news to the public at large and publishers of § 1184.3 How do I request records? periodicals that disseminate news and (a) Where to send a request. You may make their products available through make a FOIA request for IMLS records a variety of means to the general pub- by writing directly to the FOIA Officer, lic. A request for records that supports Institute of Museum and Library Serv- the news-dissemination function of the ices, 1800 M Street NW., 9th Floor, requester will not be considered to be Washington, DC 20036–5802. Requests for a commercial use. ‘‘Freelance’’ may also be sent by facsimile to the journalists who demonstrate a solid FOIA Officer at (202) 653–4625 or by basis for expecting publication through email to [email protected]. You may also a news media entity will be considered submit your FOIA request online as working for that entity. A pub- through the IMLS FOIA Request Form lishing contract would provide the located at: http://www.imls.gov/about/ clearest evidence that publication is foialrequestlform.aspx. expected; however, IMLS will also con- (b) Form of request. Your FOIA re- sider a requester’s past publication quest need not be in any particular for- record in making this determination. mat, but it must be in writing, include (9) Requester Category. One of the your name and mailing address, and three categories that IMLS places re- should be clearly identified as a Free- questers in for the purpose of deter- dom of Information Act or ‘‘FOIA’’ re- mining whether a requester will be quest. You must describe the records charged fees for search, review and du- sought with sufficient specificity to en- plication, and include commercial re- able the agency to identify and locate questers; non-commercial scientific or the records, including, if possible, educational institutions or news media dates, subjects, titles, or authors of the requesters, and all other requesters. records requested. If IMLS determines

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that your request does not reasonably upon alternative time period for proc- describe the requested records, the essing the request or a modified re- agency will advise you what additional quest. information is required to perfect your request, or why your request is other- § 1184.5 How will my request be proc- wise insufficient. You should also indi- essed? cate if you have a preferred form or (a) Acknowledgment of requests. IMLS format in which you would like to re- will assign a tracking number to your ceive the requested records. request and will, as soon as prac- (c) Electronic format records. IMLS ticable, advise you in writing of this will provide the responsive records in tracking number, and, as appropriate, the form or format you request if the a brief description of the request, and records are readily reproducible by relevant IMLS contact information, in- IMLS in that form or format. IMLS cluding the name and contact informa- will make reasonable efforts to main- tion of the FOIA Public Liaison. tain its records in forms or formats (b) Clarifications. If there is any un- that are reproducible for the purpose of certainty, IMLS will attempt to com- disclosure. IMLS may disclose records municate with you to clarify the scope in electronic format if the records can of your request. be downloaded or transferred intact (c) Referrals of requests. Whenever through electronic media currently in IMLS refers all or any part of the reuse by the agency. In responding to a sponsibility for responding to a request request for records, IMLS will make to another agency, IMLS will notify reasonable efforts to search for the you of the name of the agency to which records in electronic form or format, the request has been referred. except where such efforts would signifi- (d) Grants of requests. When respon- cantly interfere with the operation of sive records are located, IMLS will the agency’s automated information apply a presumption of disclosure and system(s). openness. If IMLS decides to grant (d) Date of receipt. IMLS considers a your request in whole or in part, the request that complies with paragraphs agency will notify you in writing. The (a) and (b) of this section to be a per- notice will include any applicable fee fected request. The agency considers a and the agency will disclose records to request to be received on the date that you promptly upon payment of applica- the request is perfected. ble fees. IMLS will mark or annotate any records disclosed in part to show § 1184.4 When will I receive a response the amount, the location, and the to my request? FOIA exemptions under which the re- (a) Responses within 20 working days. daction is made, unless doing so would IMLS will ordinarily grant, partially harm an interest protected by an appli- grant, or deny your request for records cable exemption. within 20 working days after receiving (e) Denials of requests. Denials of your a perfected request. FOIA request, either whole or in part, (b) Extensions of response time in ‘‘un- will be made in writing by the FOIA usual circumstances’’. (1) Where the Officer. IMLS will inform you of the time limits for processing a request reasons for the denial, including any cannot be met because of ‘‘unusual cir- FOIA exemption(s) applied by the cumstances,’’ as defined in the FOIA, agency in denying the request, and no- the FOIA Officer will notify you as tify you of your right to appeal the de- soon as practicable in writing of the termination as described in § 1184.6. unusual circumstances and may extend IMLS will, as appropriate, provide a the response period for up to ten (10) brief description of the information working days. being withheld. (2) Where the extension is for more than ten (10) working days, the FOIA § 1184.6 How can I appeal a denial of Officer will provide you with an oppor- my request? tunity either to modify the request so (a) Submission of an appeal. If your that it may be processed within the FOIA request has been denied in whole time limits or to arrange an agreed or in part, or if the agency has not

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found any records in response to your (2) Requests from educational and non- request, you may file an appeal no commercial scientific institutions. IMLS later than thirty (30) calendar days fol- will charge for duplication costs. lowing the date of the notification of (3) Requests by representatives of the denial. Your appeal must include a de- news media. IMLS will charge for dupli- scription of the initial request, the rea- cation costs. son for the appeal, and why you believe (4) All other requests. IMLS will assess the agency’s response was incorrect. charges to recover the full direct cost Your appeal must be in writing, signed, for searching for and duplicating the and filed with the IMLS Director, c/o requested records. Office of the General Counsel, 1800 M (5) Status of Requester. IMLS’ decision Street NW., 9th Floor, Washington, DC regarding the categorization of a re- 20036–5802. Appeals may also be sent by quester will be made on a case-by-case email to [email protected], or by facsimile basis based upon the requester’s in- to (202) 653–4625. tended use of the requested records. (b) Decisions on appeal. The Director (b) General fee schedule. The following of IMLS will make a determination fees will be charged in accordance with with respect to your appeal within paragraph (a) of this section. twenty (20) working days after the (1) Manual search fee. The fee charged agency has received the appeal, except will be the salary rate(s) (i.e., basic pay as provided in § 1184.4(b). If the decision plus 16.1 percent) of the employee(s) on appeal is favorable to you, the Di- conducting the search. rector of IMLS will take action to as- (2) Computer search fee. The fee sure prompt dispatch of the records to charged will be the actual direct cost you. If the decision on appeal is ad- of providing the service including the verse to you, in whole or in part, you cost of operating the central processing will be informed by the Director of unit for the operating time that is di- IMLS of the reasons for the decision rectly attributed to searching for and of the provisions for judicial re- records responsive to a request and the view set forth in the FOIA. As appro- operator/programmer salary priate, IMLS will advise you in a re- apportionable to the search. sponse to an appeal that the 2007 FOIA (3) Review fee. The fee charged will amendments created the Office of Gov- equal the salary rate(s) (i.e., basic pay ernment Services (OGIS) to offer medi- plus 16.1 percent) of the employee(s) conducting the review. ation services to resolve disputes be- (4) Duplication fee. Copies of records tween FOIA requesters and Federal photocopied on an 81⁄2 × 11 inch sheet of agencies as a non-exclusive alternative paper will be provided at $.10 per page. to litigation. For duplication of other materials, the § 1184.7 How will fees be charged? charge will be the direct cost of duplication. (a) In general. IMLS will use the most (c) Restrictions on charging fees. (1) Ex- efficient and least costly methods to cept for records provided in response to comply with FOIA requests. IMLS will a commercial use request, the first 100 charge fees to recover all allowable di- pages of duplication and the first two rect costs incurred, and may charge (2) hours of search time will be pro- fees for searching for and reviewing re- vided at no charge. quested records even if the records are (2) Fees will not be charged to any re- determined to be exempt from disclo- quester, including commercial use re- sure or cannot be located. IMLS will questers, if the total amount cal- charge fees in accordance with the cat- culated under this section is less than egory of the FOIA requester. $25. (1) Commercial use requests. IMLS will (d) Fees likely to exceed $25. If the assess charges to recover the full direct total fee charges are likely to exceed cost of searching for, reviewing and du- $25, IMLS will notify you of the esti- plicating the requested records. IMLS mated amount of the charges, includ- may recover the cost of searching for ing a breakdown of the fees for search, and reviewing records even if there is review and/or duplication, unless you ultimately no disclosure. have indicated in advance that you are

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willing to pay higher fees and will offer gregate such requests and charge ac- you an opportunity to confer with the cordingly. FOIA Public Liaison to revise the re- (3) Advance payment. (i) Advance pay- quest to meet your needs at a lower ment of fees will generally not be re- cost. quired. IMLS may request an advance (e) Waiver or reduction of fees. (1) payment of the fee, however, if: IMLS will disclose records without (A) The charges are likely to exceed charge or at a reduced charge if the $250; or agency determines that disclosure of (B) You have failed previously to pay the information is in the public inter- a fee in a timely fashion. est because it is likely to contribute (ii) When IMLS requests an advance significantly to public understanding payment, the time limits described in of the operations or activities of the section (a)(6) of the FOIA will begin government and is not primarily in the only after IMLS has received full pay- commercial interest of the requester. ment. (2) IMLS will use the following factors to determine whether a fee will be (g) Failure to comply. In the absence waived or reduced: of unusual or exceptional cir- (i) The subject of the request. Whether cumstances, IMLS will not assess fees the subject of the requested records if the agency fails to comply with any concerns the ‘‘operations or activities time limit set forth in these regula- of the government’’; tions. (ii) The informative value of the infor- (h) Waivers. IMLS may waive fees in mation to be disclosed. Whether the dis- other circumstances solely at its disclosure is ‘‘likely to contribute’’ to an cretion, consistent with 5 U.S.C. 552. understanding of government operations or activities; § 1184.8 How can I address concerns (iii) The contribution to an under- regarding my request? standing of the subject by the general (a) FOIA Public Liaison. If you have public likely to result from disclosure. questions or concerns regarding your Whether disclosure of the requested in- request, your first point of contact formation will contribute to ‘‘public should be the FOIA Public Liaison, understanding’’; who is responsible for reducing delays, (iv) The significance of the contribution increasing transparency and under- to public understanding. Whether disclo- standing of the status of requests, and sure is likely to contribute ‘‘signifi- assisting in the resolution of disputes. cantly’’ to public understanding of gov- (b) Additional resource. The National ernment operations or activities; Archives and Records Administration (v) The existence and magnitude of a (NARA), Office of Government Infor- commercial interest. Whether you have a mation Services (OGIS) offers noncommercial interest that would be compulsory, non-binding mediation furthered by the disclosure; and if so services to help resolve FOIA disputes. (vi) The primary interest in disclosure. If you seek information regarding Whether the magnitude of your com- OGIS and/or the services it offers, mercial interest is sufficiently large in please contact OGIS directly at Office comparison with the public interest in of Government Information Services, disclosure, that disclosure is primarily National Archives and Records Admin- in the your commercial interest. istration, Room 2510, 8601 Adelphi (f) Assessment and collection of fees. (1) Road, College Park, MD 20740–6001, If you fail to pay your bill within thirty (30) days, interest will accrue from Email: [email protected], Phone: (301) 837– the date the bill was mailed, and will 1996, Fax: (301) 837–0348. This informa- be assessed at the rate prescribed in 31 tion is provided as a public service U.S.C. 3717. only. By providing this information, (2) If IMLS reasonably believes that IMLS does not commit to refer dis- you are attempting to divide a request putes to OGIS, or to defer to OGIS’ me- into a series of requests to avoid the diation decision in particular cases. assessment of fees, the agency may ag-

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§ 1184.9 What are IMLS’ policies reas information considered protected garding disclosure of confidential from disclosure under Exemption 4; or business information? (2) IMLS has reason to believe that (a) In general. Confidential business the information may be protected from information obtained by IMLS from a disclosure under Exemption 4. submitter will be disclosed under FOIA (f) Opportunity to object to disclosure. only under this section. IMLS will allow a submitter a reason- (b) Definitions. For purposes of this able time to respond to the notice de- section, the following definitions scribed in paragraph (d) of this section apply: and will specify that time period with- (1) Confidential business information. in the notice. If a submitter has any Commercial or financial information objection to disclosure, it must submit obtained by IMLS from a submitter a detailed written statement to IMLS. that may be protected from disclosure The statement must specify all under Exemption 4 of FOIA. grounds for withholding any portion of (2) Submitter. Any person or entity the information under any exemption from whom IMLS obtains confidential of FOIA and, in the case of Exemption business information, directly or indi- 4, it must show why the information is rectly. The term includes corporations; a trade secret or commercial or finan- state, local and tribal governments; cial information that is privileged or and foreign governments. confidential. If a submitter fails to re- (c) Designation of confidential business spond to the notice within the time information. A submitter of confidential specified, the submitter will be consid- business information will use good- ered to have no objection to disclosure faith efforts to designate, either at the of the information. Information pro- time of submission or at a reasonable vided by the submitter that is not re- time thereafter, any portions of its ceived by IMLS until after the agency’s submission that it considers to be pro- disclosure decision has been made will tected from disclosure under Exemp- not be considered by IMLS. Informa- tion 4. These designations will expire tion provided by a submitter under this ten years after the date of the submis- paragraph may itself be subject to dis- sion unless the submitter requests, and closure under FOIA. provides justification for, a longer des- (g) Notice of intent to disclose. IMLS ignation period. will consider a submitter’s objections (d) Notice to submitters. When required and specific grounds for nondisclosure under paragraph (e) of this section, in deciding whether to disclose con- subject to the exceptions in paragraph fidential business information. If IMLS (h) of this section, IMLS will provide a decides to disclose confidential busi- submitter with prompt written notice ness information over the objection of of a FOIA request or administrative ap- a submitter, IMLS will give the sub- peal that seeks its confidential busi- mitter written notice, which will in- ness information, in order to give the clude: submitter an opportunity to object to disclosure of any specified portion of (1) A statement of the reason(s) why that information. The notice will ei- each of the submitter’s disclosure ob- ther describe the confidential business jections was not sustained; information requested or include cop- (2) A description of the confidential ies of the requested records or record business information to be disclosed; portions containing the information. and When notification of a voluminous (3) A specified disclosure date, which number of submitters is required, noti- will be a reasonable time subsequent to fication may be made by posting or the notice. publishing the notice in a place reason- (h) Exceptions to notice requirements. ably likely to accomplish it. The notice requirements of paragraphs (e) Where notice is required. IMLS will (d) and (g) of this section will not apply give notice to a submitter wherever: if: (1) The information has been des- (1) IMLS determines that the infor- ignated in good faith by the submitter mation should not be disclosed;

501

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(2) The information lawfully has been (j) Corresponding notice to requesters. published or has been officially made If IMLS provides a submitter with no- available to the public; tice and an opportunity to object to (3) Disclosure of the information is disclosure under paragraph (d) of this required by statute (other than FOIA) section, IMLS will also notify the re- or by a regulation issued in accordance quester(s). If IMLS notifies a submitter with the requirements of Executive of its intent to disclose requested infor- Order 12600; or mation under paragraph (g) of this section, IMLS will also notify the re- (4) The designation made by the sub- quester(s). If a submitter files a lawsuit mitter under paragraph (c) of this sec- seeking to prevent the disclosure of tion appears obviously frivolous—ex- confidential business information, cept that, in such a case, IMLS will, IMLS will notify the requester(s) of the within a reasonable time prior to a filing of the lawsuit. specified disclosure date, give the submitter written notice of any final deci- § 1184.10 Disclaimer. sion to disclose the information. Nothing in the regulations in this (i) Notice of FOIA lawsuit. If a re- part will be construed to entitle any quester files a lawsuit seeking to com- person, as a right, to any service or to pel the disclosure of confidential busi- the disclosure of any record to which ness information, IMLS will promptly such person is not entitled under FOIA. notify the submitter of the filing of the lawsuit. PARTS 1185–1199 [RESERVED]

502

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A list of CFR titles, subtitles, chapters, subchapters and parts and an alphabetical list of agencies publishing in the CFR are included in the CFR Index and Finding Aids volume to the Code of Federal Regulations which is published separately and revised annually. Table of CFR Titles and Chapters Alphabetical List of Agencies Appearing in the CFR List of CFR Sections Affected

503

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Title 1—General Provisions

I Administrative Committee of the Federal Register (Parts 1—49) II Office of the Federal Register (Parts 50—299) III Administrative Conference of the United States (Parts 300—399) IV Miscellaneous Agencies (Parts 400—599) VI National Capital Planning Commission (Parts 600—699)

Title 2—Grants and Agreements

SUBTITLE A—OFFICE OF MANAGEMENT AND BUDGET GUIDANCE FOR GRANTS AND AGREEMENTS I Office of Management and Budget Governmentwide Guidance for Grants and Agreements (Parts 2—199) II Office of Management and Budget Guidance (Parts 200—299) SUBTITLE B—FEDERAL AGENCY REGULATIONS FOR GRANTS AND AGREEMENTS III Department of Health and Human Services (Parts 300—399) IV Department of Agriculture (Parts 400—499) VI Department of State (Parts 600—699) VII Agency for International Development (Parts 700—799) VIII Department of Veterans Affairs (Parts 800—899) IX Department of Energy (Parts 900—999) X Department of the Treasury (Parts 1000—1099) XI Department of Defense (Parts 1100—1199) XII Department of Transportation (Parts 1200—1299) XIII Department of Commerce (Parts 1300—1399) XIV Department of the Interior (Parts 1400—1499) XV Environmental Protection Agency (Parts 1500—1599) XVIII National Aeronautics and Space Administration (Parts 1800— 1899) XX United States Nuclear Regulatory Commission (Parts 2000—2099) XXII Corporation for National and Community Service (Parts 2200— 2299) XXIII Social Security Administration (Parts 2300—2399) XXIV Department of Housing and Urban Development (Parts 2400— 2499) XXV National Science Foundation (Parts 2500—2599) XXVI National Archives and Records Administration (Parts 2600—2699)

505

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XXVII Small Business Administration (Parts 2700—2799) XXVIII Department of Justice (Parts 2800—2899) XXIX Department of Labor (Parts 2900—2999) XXX Department of Homeland Security (Parts 3000—3099) XXXI Institute of Museum and Library Services (Parts 3100—3199) XXXII National Endowment for the Arts (Parts 3200—3299) XXXIII National Endowment for the Humanities (Parts 3300—3399) XXXIV Department of Education (Parts 3400—3499) XXXV Export-Import Bank of the United States (Parts 3500—3599) XXXVI Office of National Drug Control Policy, Executive Office of the President (Parts 3600—3699) XXXVII Peace Corps (Parts 3700—3799) LVIII Election Assistance Commission (Parts 5800—5899) LIX Gulf Coast Ecosystem Restoration Council (Parts 5900—5999)

Title 3—The President

I Executive Office of the President (Parts 100—199)

Title 4—Accounts

I Government Accountability Office (Parts 1—199)

Title 5—Administrative Personnel

I Office of Personnel Management (Parts 1—1199) II Merit Systems Protection Board (Parts 1200—1299) III Office of Management and Budget (Parts 1300—1399) IV Office of Personnel Management and Office of the Director of National Intelligence (Parts 1400—1499) V The International Organizations Employees Loyalty Board (Parts 1500—1599) VI Federal Retirement Thrift Investment Board (Parts 1600—1699) VIII Office of Special Counsel (Parts 1800—1899) IX Appalachian Regional Commission (Parts 1900—1999) XI Armed Forces Retirement Home (Parts 2100—2199) XIV Federal Labor Relations Authority, General Counsel of the Fed- eral Labor Relations Authority and Federal Service Impasses Panel (Parts 2400—2499) XVI Office of Government Ethics (Parts 2600—2699) XXI Department of the Treasury (Parts 3100—3199) XXII Federal Deposit Insurance Corporation (Parts 3200—3299) XXIII Department of Energy (Parts 3300—3399) XXIV Federal Energy Regulatory Commission (Parts 3400—3499) XXV Department of the Interior (Parts 3500—3599) XXVI Department of Defense (Parts 3600—3699)

506

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XXVIII Department of Justice (Parts 3800—3899) XXIX Federal Communications Commission (Parts 3900—3999) XXX Farm Credit System Insurance Corporation (Parts 4000—4099) XXXI Farm Credit Administration (Parts 4100—4199) XXXIII Overseas Private Investment Corporation (Parts 4300—4399) XXXIV Securities and Exchange Commission (Parts 4400—4499) XXXV Office of Personnel Management (Parts 4500—4599) XXXVI Department of Homeland Security (Parts 4600—4699) XXXVII Federal Election Commission (Parts 4700—4799) XL Interstate Commerce Commission (Parts 5000—5099) XLI Commodity Futures Trading Commission (Parts 5100—5199) XLII Department of Labor (Parts 5200—5299) XLIII National Science Foundation (Parts 5300—5399) XLV Department of Health and Human Services (Parts 5500—5599) XLVI Postal Rate Commission (Parts 5600—5699) XLVII Federal Trade Commission (Parts 5700—5799) XLVIII Nuclear Regulatory Commission (Parts 5800—5899) XLIX Federal Labor Relations Authority (Parts 5900—5999) L Department of Transportation (Parts 6000—6099) LII Export-Import Bank of the United States (Parts 6200—6299) LIII Department of Education (Parts 6300—6399) LIV Environmental Protection Agency (Parts 6400—6499) LV National Endowment for the Arts (Parts 6500—6599) LVI National Endowment for the Humanities (Parts 6600—6699) LVII General Services Administration (Parts 6700—6799) LVIII Board of Governors of the Federal Reserve System (Parts 6800— 6899) LIX National Aeronautics and Space Administration (Parts 6900— 6999) LX United States Postal Service (Parts 7000—7099) LXI National Labor Relations Board (Parts 7100—7199) LXII Equal Employment Opportunity Commission (Parts 7200—7299) LXIII Inter-American Foundation (Parts 7300—7399) LXIV Merit Systems Protection Board (Parts 7400—7499) LXV Department of Housing and Urban Development (Parts 7500— 7599) LXVI National Archives and Records Administration (Parts 7600—7699) LXVII Institute of Museum and Library Services (Parts 7700—7799) LXVIII Commission on Civil Rights (Parts 7800—7899) LXIX Tennessee Valley Authority (Parts 7900—7999) LXX Court Services and Offender Supervision Agency for the District of Columbia (Parts 8000—8099) LXXI Consumer Product Safety Commission (Parts 8100—8199) LXXIII Department of Agriculture (Parts 8300—8399)

507

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LXXIV Federal Mine Safety and Health Review Commission (Parts 8400—8499) LXXVI Federal Retirement Thrift Investment Board (Parts 8600—8699) LXXVII Office of Management and Budget (Parts 8700—8799) LXXX Federal Housing Finance Agency (Parts 9000—9099) LXXXIII Special Inspector General for Afghanistan Reconstruction (Parts 9300—9399) LXXXIV Bureau of Consumer Financial Protection (Parts 9400—9499) LXXXVI National Credit Union Administration (Parts 9600—9699) XCVII Department of Homeland Security Human Resources Manage- ment System (Department of Homeland Security—Office of Personnel Management) (Parts 9700—9799) XCVIII Council of the Inspectors General on Integrity and Efficiency (Parts 9800—9899) XCIX Military Compensation and Retirement Modernization Commis- sion (Parts 9900—9999) C National Council on Disability (Parts 10000—10049)

Title 6—Domestic Security

I Department of Homeland Security, Office of the Secretary (Parts 1—199) X Privacy and Civil Liberties Oversight Board (Parts 1000—1099)

Title 7—Agriculture

SUBTITLE A—OFFICE OF THE SECRETARY OF AGRICULTURE (PARTS 0—26) SUBTITLE B—REGULATIONS OF THE DEPARTMENT OF AGRICULTURE I Agricultural Marketing Service (Standards, Inspections, Mar- keting Practices), Department of Agriculture (Parts 27—209) II Food and Nutrition Service, Department of Agriculture (Parts 210—299) III Animal and Plant Health Inspection Service, Department of Ag- riculture (Parts 300—399) IV Federal Crop Insurance Corporation, Department of Agriculture (Parts 400—499) V Agricultural Research Service, Department of Agriculture (Parts 500—599) VI Natural Resources Conservation Service, Department of Agri- culture (Parts 600—699) VII Farm Service Agency, Department of Agriculture (Parts 700— 799) VIII Grain Inspection, Packers and Stockyards Administration (Fed- eral Grain Inspection Service), Department of Agriculture (Parts 800—899) IX Agricultural Marketing Service (Marketing Agreements and Or- ders; Fruits, Vegetables, Nuts), Department of Agriculture (Parts 900—999)

508

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X Agricultural Marketing Service (Marketing Agreements and Or- ders; Milk), Department of Agriculture (Parts 1000—1199) XI Agricultural Marketing Service (Marketing Agreements and Or- ders; Miscellaneous Commodities), Department of Agriculture (Parts 1200—1299) XIV Commodity Credit Corporation, Department of Agriculture (Parts 1400—1499) XV Foreign Agricultural Service, Department of Agriculture (Parts 1500—1599) XVI Rural Telephone Bank, Department of Agriculture (Parts 1600— 1699) XVII Rural Utilities Service, Department of Agriculture (Parts 1700— 1799) XVIII Rural Housing Service, Rural Business-Cooperative Service, Rural Utilities Service, and Farm Service Agency, Depart- ment of Agriculture (Parts 1800—2099) XX Local Television Loan Guarantee Board (Parts 2200—2299) XXV Office of Advocacy and Outreach, Department of Agriculture (Parts 2500—2599) XXVI Office of Inspector General, Department of Agriculture (Parts 2600—2699) XXVII Office of Information Resources Management, Department of Agriculture (Parts 2700—2799) XXVIII Office of Operations, Department of Agriculture (Parts 2800— 2899) XXIX Office of Energy Policy and New Uses, Department of Agri- culture (Parts 2900—2999) XXX Office of the Chief Financial Officer, Department of Agriculture (Parts 3000—3099) XXXI Office of Environmental Quality, Department of Agriculture (Parts 3100—3199) XXXII Office of Procurement and Property Management, Department of Agriculture (Parts 3200—3299) XXXIII Office of Transportation, Department of Agriculture (Parts 3300—3399) XXXIV National Institute of Food and Agriculture (Parts 3400—3499) XXXV Rural Housing Service, Department of Agriculture (Parts 3500— 3599) XXXVI National Agricultural Statistics Service, Department of Agri- culture (Parts 3600—3699) XXXVII Economic Research Service, Department of Agriculture (Parts 3700—3799) XXXVIII World Agricultural Outlook Board, Department of Agriculture (Parts 3800—3899) XLI [Reserved] XLII Rural Business-Cooperative Service and Rural Utilities Service, Department of Agriculture (Parts 4200—4299)

509

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I Department of Homeland Security (Immigration and Naturaliza- tion) (Parts 1—499) V Executive Office for Immigration Review, Department of Justice (Parts 1000—1399)

Title 9—Animals and Animal Products

I Animal and Plant Health Inspection Service, Department of Ag- riculture (Parts 1—199) II Grain Inspection, Packers and Stockyards Administration (Packers and Stockyards Programs), Department of Agri- culture (Parts 200—299) III Food Safety and Inspection Service, Department of Agriculture (Parts 300—599)

Title 10—Energy

I Nuclear Regulatory Commission (Parts 0—199) II Department of Energy (Parts 200—699) III Department of Energy (Parts 700—999) X Department of Energy (General Provisions) (Parts 1000—1099) XIII Nuclear Waste Technical Review Board (Parts 1300—1399) XVII Defense Nuclear Facilities Safety Board (Parts 1700—1799) XVIII Northeast Interstate Low-Level Radioactive Waste Commission (Parts 1800—1899)

Title 11—Federal Elections

I Federal Election Commission (Parts 1—9099) II Election Assistance Commission (Parts 9400—9499)

Title 12—Banks and Banking

I Comptroller of the Currency, Department of the Treasury (Parts 1—199) II Federal Reserve System (Parts 200—299) III Federal Deposit Insurance Corporation (Parts 300—399) IV Export-Import Bank of the United States (Parts 400—499) V Office of Thrift Supervision, Department of the Treasury (Parts 500—599) VI Farm Credit Administration (Parts 600—699) VII National Credit Union Administration (Parts 700—799) VIII Federal Financing Bank (Parts 800—899) IX Federal Housing Finance Board (Parts 900—999) X Bureau of Consumer Financial Protection (Parts 1000—1099) XI Federal Financial Institutions Examination Council (Parts 1100—1199) XII Federal Housing Finance Agency (Parts 1200—1299)

510

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XIII Financial Stability Oversight Council (Parts 1300—1399) XIV Farm Credit System Insurance Corporation (Parts 1400—1499) XV Department of the Treasury (Parts 1500—1599) XVI Office of Financial Research (Parts 1600—1699) XVII Office of Federal Housing Enterprise Oversight, Department of Housing and Urban Development (Parts 1700—1799) XVIII Community Development Financial Institutions Fund, Depart- ment of the Treasury (Parts 1800—1899)

Title 13—Business Credit and Assistance

I Small Business Administration (Parts 1—199) III Economic Development Administration, Department of Com- merce (Parts 300—399) IV Emergency Steel Guarantee Loan Board (Parts 400—499) V Emergency Oil and Gas Guaranteed Loan Board (Parts 500—599)

Title 14—Aeronautics and Space

I Federal Aviation Administration, Department of Transportation (Parts 1—199) II Office of the Secretary, Department of Transportation (Aviation Proceedings) (Parts 200—399) III Commercial Space Transportation, Federal Aviation Adminis- tration, Department of Transportation (Parts 400—1199) V National Aeronautics and Space Administration (Parts 1200— 1299) VI Air Transportation System Stabilization (Parts 1300—1399)

Title 15—Commerce and Foreign Trade

SUBTITLE A—OFFICE OF THE SECRETARY OF COMMERCE (PARTS 0— 29) SUBTITLE B—REGULATIONS RELATING TO COMMERCE AND FOREIGN TRADE I Bureau of the Census, Department of Commerce (Parts 30—199) II National Institute of Standards and Technology, Department of Commerce (Parts 200—299) III International Trade Administration, Department of Commerce (Parts 300—399) IV Foreign-Trade Zones Board, Department of Commerce (Parts 400—499) VII Bureau of Industry and Security, Department of Commerce (Parts 700—799) VIII Bureau of Economic Analysis, Department of Commerce (Parts 800—899) IX National Oceanic and Atmospheric Administration, Department of Commerce (Parts 900—999)

511

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XI National Technical Information Service, Department of Com- merce (Parts 1100—1199) XIII East-West Foreign Trade Board (Parts 1300—1399) XIV Minority Business Development Agency (Parts 1400—1499) SUBTITLE C—REGULATIONS RELATING TO FOREIGN TRADE AGREE- MENTS XX Office of the United States Trade Representative (Parts 2000— 2099) SUBTITLE D—REGULATIONS RELATING TO TELECOMMUNICATIONS AND INFORMATION XXIII National Telecommunications and Information Administration, Department of Commerce (Parts 2300—2399) [Reserved]

Title 16—Commercial Practices

I Federal Trade Commission (Parts 0—999) II Consumer Product Safety Commission (Parts 1000—1799)

Title 17—Commodity and Securities Exchanges

I Commodity Futures Trading Commission (Parts 1—199) II Securities and Exchange Commission (Parts 200—399) IV Department of the Treasury (Parts 400—499)

Title 18—Conservation of Power and Water Resources

I Federal Energy Regulatory Commission, Department of Energy (Parts 1—399) III Delaware River Basin Commission (Parts 400—499) VI Water Resources Council (Parts 700—799) VIII Susquehanna River Basin Commission (Parts 800—899) XIII Tennessee Valley Authority (Parts 1300—1399)

Title 19—Customs Duties

I U.S. Customs and Border Protection, Department of Homeland Security; Department of the Treasury (Parts 0—199) II United States International Trade Commission (Parts 200—299) III International Trade Administration, Department of Commerce (Parts 300—399) IV U.S. Immigration and Customs Enforcement, Department of Homeland Security (Parts 400—599) [Reserved]

Title 20—Employees’ Benefits

I Office of Workers’ Compensation Programs, Department of Labor (Parts 1—199) II Railroad Retirement Board (Parts 200—399)

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III Social Security Administration (Parts 400—499) IV Employees’ Compensation Appeals Board, Department of Labor (Parts 500—599) V Employment and Training Administration, Department of Labor (Parts 600—699) VI Office of Workers’ Compensation Programs, Department of Labor (Parts 700—799) VII Benefits Review Board, Department of Labor (Parts 800—899) VIII Joint Board for the Enrollment of Actuaries (Parts 900—999) IX Office of the Assistant Secretary for Veterans’ Employment and Training Service, Department of Labor (Parts 1000—1099)

Title 21—Food and Drugs

I Food and Drug Administration, Department of Health and Human Services (Parts 1—1299) II Drug Enforcement Administration, Department of Justice (Parts 1300—1399) III Office of National Drug Control Policy (Parts 1400—1499)

Title 22—Foreign Relations

I Department of State (Parts 1—199) II Agency for International Development (Parts 200—299) III Peace Corps (Parts 300—399) IV International Joint Commission, United States and Canada (Parts 400—499) V Broadcasting Board of Governors (Parts 500—599) VII Overseas Private Investment Corporation (Parts 700—799) IX Foreign Service Grievance Board (Parts 900—999) X Inter-American Foundation (Parts 1000—1099) XI International Boundary and Water Commission, United States and Mexico, United States Section (Parts 1100—1199) XII United States International Development Cooperation Agency (Parts 1200—1299) XIII Millennium Challenge Corporation (Parts 1300—1399) XIV Foreign Service Labor Relations Board; Federal Labor Relations Authority; General Counsel of the Federal Labor Relations Authority; and the Foreign Service Impasse Disputes Panel (Parts 1400—1499) XV African Development Foundation (Parts 1500—1599) XVI Japan-United States Friendship Commission (Parts 1600—1699) XVII United States Institute of Peace (Parts 1700—1799)

Title 23—Highways

I Federal Highway Administration, Department of Transportation (Parts 1—999)

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II National Highway Traffic Safety Administration and Federal Highway Administration, Department of Transportation (Parts 1200—1299) III National Highway Traffic Safety Administration, Department of Transportation (Parts 1300—1399)

Title 24—Housing and Urban Development

SUBTITLE A—OFFICE OF THE SECRETARY, DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT (PARTS 0—99) SUBTITLE B—REGULATIONS RELATING TO HOUSING AND URBAN DE- VELOPMENT I Office of Assistant Secretary for Equal Opportunity, Department of Housing and Urban Development (Parts 100—199) II Office of Assistant Secretary for Housing-Federal Housing Com- missioner, Department of Housing and Urban Development (Parts 200—299) III Government National Mortgage Association, Department of Housing and Urban Development (Parts 300—399) IV Office of Housing and Office of Multifamily Housing Assistance Restructuring, Department of Housing and Urban Develop- ment (Parts 400—499) V Office of Assistant Secretary for Community Planning and De- velopment, Department of Housing and Urban Development (Parts 500—599) VI Office of Assistant Secretary for Community Planning and De- velopment, Department of Housing and Urban Development (Parts 600—699) [Reserved] VII Office of the Secretary, Department of Housing and Urban Devel- opment (Housing Assistance Programs and Public and Indian Housing Programs) (Parts 700—799) VIII Office of the Assistant Secretary for Housing—Federal Housing Commissioner, Department of Housing and Urban Develop- ment (Section 8 Housing Assistance Programs, Section 202 Di- rect Loan Program, Section 202 Supportive Housing for the El- derly Program and Section 811 Supportive Housing for Persons With Disabilities Program) (Parts 800—899) IX Office of Assistant Secretary for Public and Indian Housing, De- partment of Housing and Urban Development (Parts 900—1699) X Office of Assistant Secretary for Housing—Federal Housing Commissioner, Department of Housing and Urban Develop- ment (Interstate Land Sales Registration Program) (Parts 1700—1799) XII Office of Inspector General, Department of Housing and Urban Development (Parts 2000—2099) XV Emergency Mortgage Insurance and Loan Programs, Depart- ment of Housing and Urban Development (Parts 2700—2799) [Reserved] XX Office of Assistant Secretary for Housing—Federal Housing Commissioner, Department of Housing and Urban Develop- ment (Parts 3200—3899)

514

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XXIV Board of Directors of the HOPE for Homeowners Program (Parts 4000—4099) [Reserved] XXV Neighborhood Reinvestment Corporation (Parts 4100—4199)

Title 25—Indians

I Bureau of Indian Affairs, Department of the Interior (Parts 1— 299) II Indian Arts and Crafts Board, Department of the Interior (Parts 300—399) III National Indian Gaming Commission, Department of the Inte- rior (Parts 500—599) IV Office of Navajo and Hopi Indian Relocation (Parts 700—899) V Bureau of Indian Affairs, Department of the Interior, and Indian Health Service, Department of Health and Human Services (Parts 900—999) VI Office of the Assistant Secretary, Indian Affairs, Department of the Interior (Parts 1000—1199) VII Office of the Special Trustee for American Indians, Department of the Interior (Parts 1200—1299)

Title 26—Internal Revenue

I Internal Revenue Service, Department of the Treasury (Parts 1— End)

Title 27—Alcohol, Tobacco Products and Firearms

I Alcohol and Tobacco Tax and Trade Bureau, Department of the Treasury (Parts 1—399) II Bureau of Alcohol, Tobacco, Firearms, and Explosives, Depart- ment of Justice (Parts 400—699)

Title 28—Judicial Administration

I Department of Justice (Parts 0—299) III Federal Prison Industries, Inc., Department of Justice (Parts 300—399) V Bureau of Prisons, Department of Justice (Parts 500—599) VI Offices of Independent Counsel, Department of Justice (Parts 600—699) VII Office of Independent Counsel (Parts 700—799) VIII Court Services and Offender Supervision Agency for the District of Columbia (Parts 800—899) IX National Crime Prevention and Privacy Compact Council (Parts 900—999) XI Department of Justice and Department of State (Parts 1100— 1199)

515

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SUBTITLE A—OFFICE OF THE SECRETARY OF LABOR (PARTS 0—99) SUBTITLE B—REGULATIONS RELATING TO LABOR I National Labor Relations Board (Parts 100—199) II Office of Labor-Management Standards, Department of Labor (Parts 200—299) III National Railroad Adjustment Board (Parts 300—399) IV Office of Labor-Management Standards, Department of Labor (Parts 400—499) V Wage and Hour Division, Department of Labor (Parts 500—899) IX Construction Industry Collective Bargaining Commission (Parts 900—999) X National Mediation Board (Parts 1200—1299) XII Federal Mediation and Conciliation Service (Parts 1400—1499) XIV Equal Employment Opportunity Commission (Parts 1600—1699) XVII Occupational Safety and Health Administration, Department of Labor (Parts 1900—1999) XX Occupational Safety and Health Review Commission (Parts 2200—2499) XXV Employee Benefits Security Administration, Department of Labor (Parts 2500—2599) XXVII Federal Mine Safety and Health Review Commission (Parts 2700—2799) XL Pension Benefit Guaranty Corporation (Parts 4000—4999)

Title 30—Mineral Resources

I Mine Safety and Health Administration, Department of Labor (Parts 1—199) II Bureau of Safety and Environmental Enforcement, Department of the Interior (Parts 200—299) IV Geological Survey, Department of the Interior (Parts 400—499) V Bureau of Ocean Energy Management, Department of the Inte- rior (Parts 500—599) VII Office of Surface Mining Reclamation and Enforcement, Depart- ment of the Interior (Parts 700—999) XII Office of Natural Resources Revenue, Department of the Interior (Parts 1200—1299)

Title 31—Money and Finance: Treasury

SUBTITLE A—OFFICE OF THE SECRETARY OF THE TREASURY (PARTS 0—50) SUBTITLE B—REGULATIONS RELATING TO MONEY AND FINANCE I Monetary Offices, Department of the Treasury (Parts 51—199) II Fiscal Service, Department of the Treasury (Parts 200—399) IV Secret Service, Department of the Treasury (Parts 400—499) V Office of Foreign Assets Control, Department of the Treasury (Parts 500—599)

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VI Bureau of Engraving and Printing, Department of the Treasury (Parts 600—699) VII Federal Law Enforcement Training Center, Department of the Treasury (Parts 700—799) VIII Office of Investment Security, Department of the Treasury (Parts 800—899) IX Federal Claims Collection Standards (Department of the Treas- ury—Department of Justice) (Parts 900—999) X Financial Crimes Enforcement Network, Department of the Treasury (Parts 1000—1099)

Title 32—National Defense

SUBTITLE A—DEPARTMENT OF DEFENSE I Office of the Secretary of Defense (Parts 1—399) V Department of the Army (Parts 400—699) VI Department of the Navy (Parts 700—799) VII Department of the Air Force (Parts 800—1099) SUBTITLE B—OTHER REGULATIONS RELATING TO NATIONAL DE- FENSE XII Defense Logistics Agency (Parts 1200—1299) XVI Selective Service System (Parts 1600—1699) XVII Office of the Director of National Intelligence (Parts 1700—1799) XVIII National Counterintelligence Center (Parts 1800—1899) XIX Central Intelligence Agency (Parts 1900—1999) XX Information Security Oversight Office, National Archives and Records Administration (Parts 2000—2099) XXI National Security Council (Parts 2100—2199) XXIV Office of Science and Technology Policy (Parts 2400—2499) XXVII Office for Micronesian Status Negotiations (Parts 2700—2799) XXVIII Office of the Vice President of the United States (Parts 2800— 2899)

Title 33—Navigation and Navigable Waters

I Coast Guard, Department of Homeland Security (Parts 1—199) II Corps of Engineers, Department of the Army, Department of De- fense (Parts 200—399) IV Saint Lawrence Seaway Development Corporation, Department of Transportation (Parts 400—499)

Title 34—Education

SUBTITLE A—OFFICE OF THE SECRETARY, DEPARTMENT OF EDU- CATION (PARTS 1—99) SUBTITLE B—REGULATIONS OF THE OFFICES OF THE DEPARTMENT OF EDUCATION I Office for Civil Rights, Department of Education (Parts 100—199)

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II Office of Elementary and Secondary Education, Department of Education (Parts 200—299) III Office of Special Education and Rehabilitative Services, Depart- ment of Education (Parts 300—399) IV Office of Career, Technical and Adult Education, Department of Education (Parts 400—499) V Office of Bilingual Education and Minority Languages Affairs, Department of Education (Parts 500—599) [Reserved] VI Office of Postsecondary Education, Department of Education (Parts 600—699) VII Office of Educational Research and Improvement, Department of Education (Parts 700—799) [Reserved] SUBTITLE C—REGULATIONS RELATING TO EDUCATION XI (Parts 1100—1199) [Reserved] XII National Council on Disability (Parts 1200—1299)

Title 35 [Reserved]

Title 36—Parks, Forests, and Public Property

I National Park Service, Department of the Interior (Parts 1—199) II Forest Service, Department of Agriculture (Parts 200—299) III Corps of Engineers, Department of the Army (Parts 300—399) IV American Battle Monuments Commission (Parts 400—499) V Smithsonian Institution (Parts 500—599) VI [Reserved] VII Library of Congress (Parts 700—799) VIII Advisory Council on Historic Preservation (Parts 800—899) IX Pennsylvania Avenue Development Corporation (Parts 900—999) X Presidio Trust (Parts 1000—1099) XI Architectural and Transportation Barriers Compliance Board (Parts 1100—1199) XII National Archives and Records Administration (Parts 1200—1299) XV Oklahoma City National Memorial Trust (Parts 1500—1599) XVI Morris K. Udall Scholarship and Excellence in National Environ- mental Policy Foundation (Parts 1600—1699)

Title 37—Patents, Trademarks, and Copyrights

I United States Patent and Trademark Office, Department of Commerce (Parts 1—199) II U.S. Copyright Office, Library of Congress (Parts 200—299) III Copyright Royalty Board, Library of Congress (Parts 300—399) IV National Institute of Standards and Technology, Department of Commerce (Parts 400—599)

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I Department of Veterans Affairs (Parts 0—199) II Armed Forces Retirement Home (Parts 200—299)

Title 39—Postal Service

I United States Postal Service (Parts 1—999) III Postal Regulatory Commission (Parts 3000—3099)

Title 40—Protection of Environment

I Environmental Protection Agency (Parts 1—1099) IV Environmental Protection Agency and Department of Justice (Parts 1400—1499) V Council on Environmental Quality (Parts 1500—1599) VI Chemical Safety and Hazard Investigation Board (Parts 1600— 1699) VII Environmental Protection Agency and Department of Defense; Uniform National Discharge Standards for Vessels of the Armed Forces (Parts 1700—1799) VIII Gulf Coast Ecosystem Restoration Council (Parts 1800—1899)

Title 41—Public Contracts and Property Management

SUBTITLE A—FEDERAL PROCUREMENT REGULATIONS SYSTEM [NOTE] SUBTITLE B—OTHER PROVISIONS RELATING TO PUBLIC CONTRACTS 50 Public Contracts, Department of Labor (Parts 50–1—50–999) 51 Committee for Purchase From People Who Are Blind or Severely Disabled (Parts 51–1—51–99) 60 Office of Federal Contract Compliance Programs, Equal Employ- ment Opportunity, Department of Labor (Parts 60–1—60–999) 61 Office of the Assistant Secretary for Veterans’ Employment and Training Service, Department of Labor (Parts 61–1—61–999) 62—100 [Reserved] SUBTITLE C—FEDERAL PROPERTY MANAGEMENT REGULATIONS SYSTEM 101 Federal Property Management Regulations (Parts 101–1—101–99) 102 Federal Management Regulation (Parts 102–1—102–299) 103—104 [Reserved] 105 General Services Administration (Parts 105–1—105–999) 109 Department of Energy Property Management Regulations (Parts 109–1—109–99) 114 Department of the Interior (Parts 114–1—114–99) 115 Environmental Protection Agency (Parts 115–1—115–99) 128 Department of Justice (Parts 128–1—128–99) 129—200 [Reserved] SUBTITLE D—OTHER PROVISIONS RELATING TO PROPERTY MANAGE- MENT [RESERVED]

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SUBTITLE E—FEDERAL INFORMATION RESOURCES MANAGEMENT REGULATIONS SYSTEM [RESERVED] SUBTITLE F—FEDERAL TRAVEL REGULATION SYSTEM 300 General (Parts 300–1—300–99) 301 Temporary Duty (TDY) Travel Allowances (Parts 301–1—301–99) 302 Relocation Allowances (Parts 302–1—302–99) 303 Payment of Expenses Connected with the Death of Certain Em- ployees (Part 303–1—303–99) 304 Payment of Travel Expenses from a Non-Federal Source (Parts 304–1—304–99)

Title 42—Public Health

I Public Health Service, Department of Health and Human Serv- ices (Parts 1—199) II—III [Reserved] IV Centers for Medicare & Medicaid Services, Department of Health and Human Services (Parts 400—699) V Office of Inspector General-Health Care, Department of Health and Human Services (Parts 1000—1099)

Title 43—Public Lands: Interior

SUBTITLE A—OFFICE OF THE SECRETARY OF THE INTERIOR (PARTS 1—199) SUBTITLE B—REGULATIONS RELATING TO PUBLIC LANDS I Bureau of Reclamation, Department of the Interior (Parts 400— 999) II Bureau of Land Management, Department of the Interior (Parts 1000—9999) III Utah Reclamation Mitigation and Conservation Commission (Parts 10000—10099)

Title 44—Emergency Management and Assistance

I Federal Emergency Management Agency, Department of Home- land Security (Parts 0—399) IV Department of Commerce and Department of Transportation (Parts 400—499)

Title 45—Public Welfare

SUBTITLE A—DEPARTMENT OF HEALTH AND HUMAN SERVICES (PARTS 1—199) SUBTITLE B—REGULATIONS RELATING TO PUBLIC WELFARE II Office of Family Assistance (Assistance Programs), Administra- tion for Children and Families, Department of Health and Human Services (Parts 200—299)

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III Office of Child Support Enforcement (Child Support Enforce- ment Program), Administration for Children and Families, Department of Health and Human Services (Parts 300—399) IV Office of Refugee Resettlement, Administration for Children and Families, Department of Health and Human Services (Parts 400—499) V Foreign Claims Settlement Commission of the United States, Department of Justice (Parts 500—599) VI National Science Foundation (Parts 600—699) VII Commission on Civil Rights (Parts 700—799) VIII Office of Personnel Management (Parts 800—899) IX Denali Commission (Parts 900—999) X Office of Community Services, Administration for Children and Families, Department of Health and Human Services (Parts 1000—1099) XI National Foundation on the Arts and the Humanities (Parts 1100—1199) XII Corporation for National and Community Service (Parts 1200— 1299) XIII Administration for Children and Families, Department of Health and Human Services (Parts 1300—1399) XVI Legal Services Corporation (Parts 1600—1699) XVII National Commission on Libraries and Information Science (Parts 1700—1799) XVIII Harry S. Truman Scholarship Foundation (Parts 1800—1899) XXI Commission of Fine Arts (Parts 2100—2199) XXIII Arctic Research Commission (Parts 2300—2399) XXIV James Madison Memorial Fellowship Foundation (Parts 2400— 2499) XXV Corporation for National and Community Service (Parts 2500— 2599)

Title 46—Shipping

I Coast Guard, Department of Homeland Security (Parts 1—199) II Maritime Administration, Department of Transportation (Parts 200—399) III Coast Guard (Great Lakes Pilotage), Department of Homeland Security (Parts 400—499) IV Federal Maritime Commission (Parts 500—599)

Title 47—Telecommunication

I Federal Communications Commission (Parts 0—199) II Office of Science and Technology Policy and National Security Council (Parts 200—299) III National Telecommunications and Information Administration, Department of Commerce (Parts 300—399)

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IV National Telecommunications and Information Administration, Department of Commerce, and National Highway Traffic Safe- ty Administration, Department of Transportation (Parts 400— 499) V The First Responder Network Authority (Parts 500—599)

Title 48—Federal Acquisition Regulations System

1 Federal Acquisition Regulation (Parts 1—99) 2 Defense Acquisition Regulations System, Department of Defense (Parts 200—299) 3 Department of Health and Human Services (Parts 300—399) 4 Department of Agriculture (Parts 400—499) 5 General Services Administration (Parts 500—599) 6 Department of State (Parts 600—699) 7 Agency for International Development (Parts 700—799) 8 Department of Veterans Affairs (Parts 800—899) 9 Department of Energy (Parts 900—999) 10 Department of the Treasury (Parts 1000—1099) 12 Department of Transportation (Parts 1200—1299) 13 Department of Commerce (Parts 1300—1399) 14 Department of the Interior (Parts 1400—1499) 15 Environmental Protection Agency (Parts 1500—1599) 16 Office of Personnel Management, Federal Employees Health Benefits Acquisition Regulation (Parts 1600—1699) 17 Office of Personnel Management (Parts 1700—1799) 18 National Aeronautics and Space Administration (Parts 1800— 1899) 19 Broadcasting Board of Governors (Parts 1900—1999) 20 Nuclear Regulatory Commission (Parts 2000—2099) 21 Office of Personnel Management, Federal Employees Group Life Insurance Federal Acquisition Regulation (Parts 2100—2199) 23 Social Security Administration (Parts 2300—2399) 24 Department of Housing and Urban Development (Parts 2400— 2499) 25 National Science Foundation (Parts 2500—2599) 28 Department of Justice (Parts 2800—2899) 29 Department of Labor (Parts 2900—2999) 30 Department of Homeland Security, Homeland Security Acquisi- tion Regulation (HSAR) (Parts 3000—3099) 34 Department of Education Acquisition Regulation (Parts 3400— 3499) 51 Department of the Army Acquisition Regulations (Parts 5100— 5199) 52 Department of the Navy Acquisition Regulations (Parts 5200— 5299) 53 Department of the Air Force Federal Acquisition Regulation Supplement (Parts 5300—5399) [Reserved]

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54 Defense Logistics Agency, Department of Defense (Parts 5400— 5499) 57 African Development Foundation (Parts 5700—5799) 61 Civilian Board of Contract Appeals, General Services Adminis- tration (Parts 6100—6199) 99 Cost Accounting Standards Board, Office of Federal Procure- ment Policy, Office of Management and Budget (Parts 9900— 9999)

Title 49—Transportation

SUBTITLE A—OFFICE OF THE SECRETARY OF TRANSPORTATION (PARTS 1—99) SUBTITLE B—OTHER REGULATIONS RELATING TO TRANSPORTATION I Pipeline and Hazardous Materials Safety Administration, De- partment of Transportation (Parts 100—199) II Federal Railroad Administration, Department of Transportation (Parts 200—299) III Federal Motor Carrier Safety Administration, Department of Transportation (Parts 300—399) IV Coast Guard, Department of Homeland Security (Parts 400—499) V National Highway Traffic Safety Administration, Department of Transportation (Parts 500—599) VI Federal Transit Administration, Department of Transportation (Parts 600—699) VII National Railroad Passenger Corporation (AMTRAK) (Parts 700—799) VIII National Transportation Safety Board (Parts 800—999) X Surface Transportation Board (Parts 1000—1399) XI Research and Innovative Technology Administration, Depart- ment of Transportation (Parts 1400—1499) [Reserved] XII Transportation Security Administration, Department of Home- land Security (Parts 1500—1699)

Title 50—Wildlife and Fisheries

I United States Fish and Wildlife Service, Department of the Inte- rior (Parts 1—199) II National Marine Fisheries Service, National Oceanic and Atmos- pheric Administration, Department of Commerce (Parts 200— 299) III International Fishing and Related Activities (Parts 300—399) IV Joint Regulations (United States Fish and Wildlife Service, De- partment of the Interior and National Marine Fisheries Serv- ice, National Oceanic and Atmospheric Administration, De- partment of Commerce); Endangered Species Committee Reg- ulations (Parts 400—499) V Marine Mammal Commission (Parts 500—599)

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VI Fishery Conservation and Management, National Oceanic and Atmospheric Administration, Department of Commerce (Parts 600—699)

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CFR Title, Subtitle or Agency Chapter Administrative Committee of the Federal Register 1, I Administrative Conference of the United States 1, III Advisory Council on Historic Preservation 36, VIII Advocacy and Outreach, Office of 7, XXV Afghanistan Reconstruction, Special Inspector General for 5, LXXXIII African Development Foundation 22, XV Federal Acquisition Regulation 48, 57 Agency for International Development 2, VII; 22, II Federal Acquisition Regulation 48, 7 Agricultural Marketing Service 7, I, IX, X, XI Agricultural Research Service 7, V Agriculture, Department of 2, IV; 5, LXXIII Advocacy and Outreach, Office of 7, XXV Agricultural Marketing Service 7, I, IX, X, XI Agricultural Research Service 7, V Animal and Plant Health Inspection Service 7, III; 9, I Chief Financial Officer, Office of 7, XXX Commodity Credit Corporation 7, XIV Economic Research Service 7, XXXVII Energy Policy and New Uses, Office of 2, IX; 7, XXIX Environmental Quality, Office of 7, XXXI Farm Service Agency 7, VII, XVIII Federal Acquisition Regulation 48, 4 Federal Crop Insurance Corporation 7, IV Food and Nutrition Service 7, II Food Safety and Inspection Service 9, III Foreign Agricultural Service 7, XV Forest Service 36, II Grain Inspection, Packers and Stockyards Administration 7, VIII; 9, II Information Resources Management, Office of 7, XXVII Inspector General, Office of 7, XXVI National Agricultural Library 7, XLI National Agricultural Statistics Service 7, XXXVI National Institute of Food and Agriculture 7, XXXIV Natural Resources Conservation Service 7, VI Operations, Office of 7, XXVIII Procurement and Property Management, Office of 7, XXXII Rural Business-Cooperative Service 7, XVIII, XLII Rural Development Administration 7, XLII Rural Housing Service 7, XVIII, XXXV Rural Telephone Bank 7, XVI Rural Utilities Service 7, XVII, XVIII, XLII Secretary of Agriculture, Office of 7, Subtitle A Transportation, Office of 7, XXXIII World Agricultural Outlook Board 7, XXXVIII Air Force, Department of 32, VII Federal Acquisition Regulation Supplement 48, 53 Air Transportation Stabilization Board 14, VI Alcohol and Tobacco Tax and Trade Bureau 27, I Alcohol, Tobacco, Firearms, and Explosives, Bureau of 27, II AMTRAK 49, VII American Battle Monuments Commission 36, IV American Indians, Office of the Special Trustee 25, VII

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VerDate Sep<11>2014 12:07 Oct 30, 2018 Jkt 244202 PO 00000 Frm 00540 Fmt 8092 Sfmt 8092 Q:\45\45V3.TXT PC31 kpayne on VMOFRWIN702 with $$_JOB CFR Title, Subtitle or Agency Chapter Federal Contract Compliance Programs, Office of 41, 60 Federal Procurement Regulations System 41, 50 Labor-Management Standards, Office of 29, II, IV Mine Safety and Health Administration 30, I Occupational Safety and Health Administration 29, XVII Public Contracts 41, 50 Secretary of Labor, Office of 29, Subtitle A Veterans’ Employment and Training Service, Office of the 41, 61; 20, IX Assistant Secretary for Wage and Hour Division 29, V Workers’ Compensation Programs, Office of 20, I, VII Labor-Management Standards, Office of 29, II, IV Land Management, Bureau of 43, II Legal Services Corporation 45, XVI Libraries and Information Science, National Commission on 45, XVII Library of Congress 36, VII Copyright Royalty Board 37, III U.S. Copyright Office 37, II Local Television Loan Guarantee Board 7, XX Management and Budget, Office of 5, III, LXXVII; 14, VI; 48, 99 Marine Mammal Commission 50, V Maritime Administration 46, II Merit Systems Protection Board 5, II, LXIV Micronesian Status Negotiations, Office for 32, XXVII Military Compensation and Retirement Modernization 5, XCIX Commission Millennium Challenge Corporation 22, XIII Mine Safety and Health Administration 30, I Minority Business Development Agency 15, XIV Miscellaneous Agencies 1, IV Monetary Offices 31, I Morris K. Udall Scholarship and Excellence in National 36, XVI Environmental Policy Foundation Museum and Library Services, Institute of 2, XXXI National Aeronautics and Space Administration 2, XVIII; 5, LIX; 14, V Federal Acquisition Regulation 48, 18 National Agricultural Library 7, XLI National Agricultural Statistics Service 7, XXXVI National and Community Service, Corporation for 2, XXII; 45, XII, XXV National Archives and Records Administration 2, XXVI; 5, LXVI; 36, XII Information Security Oversight Office 32, XX National Capital Planning Commission 1, IV, VI National Counterintelligence Center 32, XVIII National Credit Union Administration 5, LXXXVI; 12, VII National Crime Prevention and Privacy Compact Council 28, IX National Drug Control Policy, Office of 2, XXXVI; 21, III National Endowment for the Arts 2, XXXII National Endowment for the Humanities 2, XXXIII National Foundation on the Arts and the Humanities 45, XI National Geospatial-Intelligence Agency 32, I National Highway Traffic Safety Administration 23, II, III; 47, VI; 49, V National Imagery and Mapping Agency 32, I National Indian Gaming Commission 25, III National Institute of Food and Agriculture 7, XXXIV National Institute of Standards and Technology 15, II; 37, IV National Intelligence, Office of Director of 5, IV; 32, XVII National Labor Relations Board 5, LXI; 29, I National Marine Fisheries Service 50, II, IV National Mediation Board 29, X National Oceanic and Atmospheric Administration 15, IX; 50, II, III, IV, VI National Park Service 36, I National Railroad Adjustment Board 29, III National Railroad Passenger Corporation (AMTRAK) 49, VII National Science Foundation 2, XXV; 5, XLIII; 45, VI Federal Acquisition Regulation 48, 25

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VerDate Sep<11>2014 12:07 Oct 30, 2018 Jkt 244202 PO 00000 Frm 00541 Fmt 8092 Sfmt 8092 Q:\45\45V3.TXT PC31 kpayne on VMOFRWIN702 with $$_JOB CFR Title, Subtitle or Agency Chapter National Security Council 32, XXI National Security Council and Office of Science and 47, II Technology Policy National Technical Information Service 15, XI National Telecommunications and Information 15, XXIII; 47, III, IV, V Administration National Transportation Safety Board 49, VIII Natural Resources Conservation Service 7, VI Natural Resource Revenue, Office of 30, XII Navajo and Hopi Indian Relocation, Office of 25, IV Navy, Department of 32, VI Federal Acquisition Regulation 48, 52 Neighborhood Reinvestment Corporation 24, XXV Northeast Interstate Low-Level Radioactive Waste 10, XVIII Commission Nuclear Regulatory Commission 2, XX; 5, XLVIII; 10, I Federal Acquisition Regulation 48, 20 Occupational Safety and Health Administration 29, XVII Occupational Safety and Health Review Commission 29, XX Ocean Energy Management, Bureau of 30, V Oklahoma City National Memorial Trust 36, XV Operations Office 7, XXVIII Overseas Private Investment Corporation 5, XXXIII; 22, VII Patent and Trademark Office, United States 37, I Payment From a Non-Federal Source for Travel Expenses 41, 304 Payment of Expenses Connected With the Death of Certain 41, 303 Employees Peace Corps 2, XXXVII; 22, III Pennsylvania Avenue Development Corporation 36, IX Pension Benefit Guaranty Corporation 29, XL Personnel Management, Office of 5, I, XXXV; 5, IV; 45, VIII Human Resources Management and Labor Relations 5, XCVII Systems, Department of Homeland Security Federal Acquisition Regulation 48, 17 Federal Employees Group Life Insurance Federal 48, 21 Acquisition Regulation Federal Employees Health Benefits Acquisition Regulation 48, 16 Pipeline and Hazardous Materials Safety Administration 49, I Postal Regulatory Commission 5, XLVI; 39, III Postal Service, United States 5, LX; 39, I Postsecondary Education, Office of 34, VI President’s Commission on White House Fellowships 1, IV Presidential Documents 3 Presidio Trust 36, X Prisons, Bureau of 28, V Privacy and Civil Liberties Oversight Board 6, X Procurement and Property Management, Office of 7, XXXII Public Contracts, Department of Labor 41, 50 Public and Indian Housing, Office of Assistant Secretary for 24, IX Public Health Service 42, I Railroad Retirement Board 20, II Reclamation, Bureau of 43, I Refugee Resettlement, Office of 45, IV Relocation Allowances 41, 302 Research and Innovative Technology Administration 49, XI Rural Business-Cooperative Service 7, XVIII, XLII Rural Development Administration 7, XLII Rural Housing Service 7, XVIII, XXXV Rural Telephone Bank 7, XVI Rural Utilities Service 7, XVII, XVIII, XLII Safety and Environmental Enforcement, Bureau of 30, II Saint Lawrence Seaway Development Corporation 33, IV Science and Technology Policy, Office of 32, XXIV Science and Technology Policy, Office of, and National 47, II Security Council Secret Service 31, IV

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VerDate Sep<11>2014 12:07 Oct 30, 2018 Jkt 244202 PO 00000 Frm 00542 Fmt 8092 Sfmt 8092 Q:\45\45V3.TXT PC31 kpayne on VMOFRWIN702 with $$_JOB CFR Title, Subtitle or Agency Chapter Securities and Exchange Commission 5, XXXIV; 17, II Selective Service System 32, XVI Small Business Administration 2, XXVII; 13, I Smithsonian Institution 36, V Social Security Administration 2, XXIII; 20, III; 48, 23 Soldiers’ and Airmen’s Home, United States 5, XI Special Counsel, Office of 5, VIII Special Education and Rehabilitative Services, Office of 34, III State, Department of 2, VI; 22, I; 28, XI Federal Acquisition Regulation 48, 6 Surface Mining Reclamation and Enforcement, Office of 30, VII Surface Transportation Board 49, X Susquehanna River Basin Commission 18, VIII Tennessee Valley Authority 5, LXIX; 18, XIII Thrift Supervision Office, Department of the Treasury 12, V Trade Representative, United States, Office of 15, XX Transportation, Department of 2, XII; 5, L Commercial Space Transportation 14, III Emergency Management and Assistance 44, IV Federal Acquisition Regulation 48, 12 Federal Aviation Administration 14, I Federal Highway Administration 23, I, II Federal Motor Carrier Safety Administration 49, III Federal Railroad Administration 49, II Federal Transit Administration 49, VI Maritime Administration 46, II National Highway Traffic Safety Administration 23, II, III; 47, IV; 49, V Pipeline and Hazardous Materials Safety Administration 49, I Saint Lawrence Seaway Development Corporation 33, IV Secretary of Transportation, Office of 14, II; 49, Subtitle A Transportation Statistics Bureau 49, XI Transportation, Office of 7, XXXIII Transportation Security Administration 49, XII Transportation Statistics Bureau 49, XI Travel Allowances, Temporary Duty (TDY) 41, 301 Treasury, Department of the 2, X;5, XXI; 12, XV; 17, IV; 31, IX Alcohol and Tobacco Tax and Trade Bureau 27, I Community Development Financial Institutions Fund 12, XVIII Comptroller of the Currency 12, I Customs and Border Protection 19, I Engraving and Printing, Bureau of 31, VI Federal Acquisition Regulation 48, 10 Federal Claims Collection Standards 31, IX Federal Law Enforcement Training Center 31, VII Financial Crimes Enforcement Network 31, X Fiscal Service 31, II Foreign Assets Control, Office of 31, V Internal Revenue Service 26, I Investment Security, Office of 31, VIII Monetary Offices 31, I Secret Service 31, IV Secretary of the Treasury, Office of 31, Subtitle A Thrift Supervision, Office of 12, V Truman, Harry S. Scholarship Foundation 45, XVIII United States and Canada, International Joint Commission 22, IV United States and Mexico, International Boundary and Water 22, XI Commission, United States Section U.S. Copyright Office 37, II Utah Reclamation Mitigation and Conservation Commission 43, III Veterans Affairs, Department of 2, VIII; 38, I Federal Acquisition Regulation 48, 8 Veterans’ Employment and Training Service, Office of the 41, 61; 20, IX Assistant Secretary for Vice President of the United States, Office of 32, XXVIII Wage and Hour Division 29, V Water Resources Council 18, VI

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VerDate Sep<11>2014 12:07 Oct 30, 2018 Jkt 244202 PO 00000 Frm 00544 Fmt 8092 Sfmt 8092 Q:\45\45V3.TXT PC31 kpayne on VMOFRWIN702 with $$_JOB List of CFR Sections Affected All changes in this volume of the Code of Federal Regulations (CFR) that were made by documents published in the FEDERAL REGISTER since January 1, 2013 are enumerated in the following list. Entries indicate the nature of the changes effected. Page numbers refer to FEDERAL REGISTER pages. The user should consult the entries for chapters, parts and subparts as well as sections for revisions. For changes to this volume of the CFR prior to this listing, consult the annual edition of the monthly List of CFR Sections Affected (LSA). The LSA is available at www.fdsys.gov. For changes to this volume of the CFR prior to 2001, see the ‘‘List of CFR Sections Affected, 1949–1963, 1964–1972, 1973–1985, and 1986–2000’’ published in 11 separate volumes. The ‘‘List of CFR Sections Affected 1986–2000’’ is available at www.fdsys.gov.

2013 45 CFR—Continued 79 FR Page 45 CFR 78 FR Page Chapter XI—Continued 1157 Removed; interim...... 76091 Chapter VI 1171 Added ...... 9415 612 Revised ...... 53278 1172 Added ...... 26633 Chapter VIII 1174 Removed; interim...... 76091 800 Added ...... 15587 1180 Removed; interim...... 76090 Correctly amended ...... 25591 1183 Removed; interim...... 76090 800.20 Correctly amended...... 18246 800.110 Correctly amended ...... 18246 1184 Added ...... 9423 800.202 (f) correctly amended...... 18246 Chapter XI 2015 1180.2 (b) introductory text 45 CFR 80 FR amended...... 34921 Page 1180.3 Amended...... 34921 Chapter VIII 1180.37 (a) revised...... 34921 1180.55 Revised ...... 34921 800 Republished ...... 9655 1180.70 (Subpart D) removed...... 34922 Correctly revised ...... 16577 Chapter XI 2014 1155 Removed ...... 33157 1157 Regulation at 79 FR 76091 45 CFR 79 FR Page confirmed (Editor’s Note: This Chapter VI is actually supposed to be 2 602 Removed; interim ...... 76079 CFR Part 3255) ...... 36930 1171.5 (c)(1) and (2) amended ...... 42066 Chapter XI 1171.10 (a) amended ...... 42066 1100.1 (a) revised...... 9621 1100.2 Revised ...... 9621 1174 Regulation at 79 FR 76091 1100.3 Revised ...... 9622 confirmed...... 55505 1100.4 Revised ...... 9622 1180 Regulation at 79 FR 76090 1100.5 (a) and (b)(1) revised; (c) in- confirmed...... 56893 troductory text amended ...... 9622 1183 Regulation at 79 FR 76090 1100.7 (a) and introductory text confirmed...... 56893 revised ...... 9622 1149 Added ...... 67081

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2016 45 CFR—Continued 82 FR Page 45 CFR 81 FR Chapter XI—Continued Page Regulation at 82 FR 27434 con- Chapter VI firmed...... 58350 672.24 Revised; interim ...... 41452 1158.400 (a) and (b) amended; in- 681.3 (f) and (g) added; interim ...... 41452 terim...... 27434 Chapter IX 1158 Appendix A amended; in- Chapter IX Established ...... 53033 terim...... 27434 900 Added ...... 53033 1171 Authority citation re- Chapter X vised ...... 45 1000.3 (a) and (b) amended; in- 1171.4 (a) and (b) revised...... 45 terim ...... 3021 1171.7 (d)(1)(ii) revised ...... 45 1050.3 (h) revised ...... 19428 1171.8 (b) and (c) revised ...... 45 1171.10 (a) revised ...... 46 2017 1171.11 (d)(3) revised ...... 46 45 CFR 82 FR Page 2018 Chapter V (Regulations published from January 1, 500 Authority citation revised; 2018, through October 1, 2018) interim...... 16126 500.3 (c) added; interim ...... 16126 45 CFR 83 FR 500.4 (a)(3) revised; interim ...... 16126 Page 510 (Subchapter D) Added; in- Subtitle B terim...... 16126 Chapter VI Chapter VI 690 Regulation at 82 FR 7273 eff. 690 Revised; eff. 1-19-18 ...... 7273 date delayed to 7-19-18 ...... 2885 690.101 (l)(3) and (4) revised; in- Chapter XI terim ...... 2894 1149 Authority citation revised; (l)(1) heading and (5) added; (l)(2), interim...... 27434 (3), and (4) revised...... 28519 Regulation at 82 FR 27434 confirmed...... 58350 Chapter XI 1149.9 (a)(1) amended; interim ...... 27434 1149.9 (a)(1) revised...... 2073 1158 Authority citation revised; 1158.400 (a), (b), and (e) revised ...... 2073 interim...... 27434 1158 Appendix A amended ...... 2073 Æ

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